United States v. Johnson , 308 F. App'x 768 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 26, 2009
No. 06-60303
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellant
v.
ANDRE JORDAN JOHNSON, also known as Byrd
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:96-CR-61-1
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Andre Jordan Johnson, federal prisoner # 14891-076,
appeals the district court’s denial of his 28 U.S.C. § 2255 motion, arguing that
his appellate counsel did not inform him of his right to seek certiorari in the
Supreme Court after we affirmed his sentence on appeal. See United States v.
Johnson, 253 F.3d 706 (5th Cir. 2001) (unpublished). We ordered a limited
remand to the district court for fact finding solely on the question of whether
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60303
Thompson advised Johnson of his right to seek a writ of certiorari. After
conducting an evidentiary hearing, at which Johnson and Thompson both
testified, the district court determined that Thompson never informed Johnson
in writing of his right to seek Supreme Court review.
Under this court’s Plan for Representation on Appeal Under the Criminal
Justice Act (the CJA Plan), “[p]romptly after the court of appeals decision issues,
appointed counsel must advise the client in writing of the right to seek further
review by filing a petition for writ of certiorari with the United States Supreme
Court.” CJA Plan, § 6, ¶ 4. This court has previously granted § 2255 relief on
claims that appellate counsel failed to advise a defendant of his ability to seek
certiorari review from the Supreme Court. See Lacaze v. United States, 457 F.2d
1075, 1076 (5th Cir. 1972); Ordonez v. United States, 588 F.2d 448, 449 (5th Cir.
1979). In light of the district court’s determination that Thompson did not
inform Johnson in writing of his right to seek Supreme Court review, we recall
our mandate in Johnson’s direct criminal appeal, cited above, and direct the
issuance of a new mandate affirming our prior affirmance of the judgment of
conviction. Johnson is hereby advised of his renewed right to petition the
Supreme Court for certiorari to review this court’s affirmance of his direct
appeal. Since Johnson has proceeded without counsel in this in forma pauperis
appeal, we also order appointment of counsel to assist him in the prosecution of
his petition for certiorari.
The original judgment of this court on direct appeal is VACATED, a new
judgment is ENTERED reaffirming the judgment of conviction, and counsel for
Johnson is ORDERED to be appointed.
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