FILED: January 12, 2021

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

___________________

No. 20-15 (3:92-cr-00068-DJN-2) ___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

COREY JOHNSON, a/k/a O, a/k/a CO

Defendant - Appellant

___________________

No. 21-1 (3:92-cr-00068-DJN-2) (3:20-cv-00957-DJN) ___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

COREY JOHNSON, a/k/a O, a/k/a CO

Defendant - Appellant

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THE CONSTITUTION PROJECT AT THE PROJECT ON GOVERNMENT OVERSIGHT Amicus Supporting Appellant

___________________

No. 21-2 (3:92-cr-00068-DJN-2) ___________________

In re: COREY JOHNSON, a/k/a O, a/k/a CO

Movant

___________________

ORDER ___________________

Upon consideration of submissions relative to the motions for stay of execution filed

in Case No. 20-15, United States v. Corey Johnson, Case No. 21-1, United States v. Corey

Johnson, and Case No. 21-2, In re: Corey Johnson, the court denies the motions for stay

of execution.

In No. 20-15, Judge Wilkinson and Judge Floyd voted to deny the motion for stay,

and Judge Motz voted to grant the motion.

In Nos. 21-1 and 21-2, Judge Wilkinson, Judge Motz, and Judge Floyd all voted to

deny the motions for stay of execution.

Judge Wilkinson wrote a separate opinion. Judge Motz wrote a separate opinion,

concurring in the denial of the motions in No. 21-1 and No. 21-2 and dissenting from the

denial of the motion in No. 20-15.

For the Court

/s/ Patricia S. Connor, Clerk

2 WILKINSON, Circuit Judge:

I vote to deny a stay of execution and to deny all the subsidiary motions directed

toward that singular end. The Supreme Court has warned against this flurry of last-minute

motions designed to achieve a stay by virtue of allowing the courts severely limited

consideration time. See Bucklew v. Precythe,

(2019) (instructing

courts to “police carefully against attempts to use [] challenges as tools to interpose

unjustified delay” and explaining that stay requests can be denied if they are filed at the

last minute). “Last-minute stays . . . should be the extreme exception, not the norm.” Barr.

v. Lee,

(2020) (internal quotation marks omitted). Here, Johnson had

ample time to raise the issues that are only now advanced before us, giving us (and the

Supreme Court) just a few days before the scheduled execution date. The very numerosity

of filings, both statutory and constitutional, betrays a manipulative intention to circumvent

not only the strictures of AEDPA but the Supreme Court’s warnings against procedural

gamesmanship designed to bring the wheels of justice to a halt. We should not reward such

dilatory tactics.

It is disheartening to say the least to watch the Supreme Court’s warnings

disregarded. “Both the State and the victims of crime have an important interest in the

timely enforcement of a sentence.” Hill v. McDonough,

(2006). Yet

these interests have been ignored while Johnson’s case has dragged on through the federal

system for decades. Now Johnson seeks more delay, assaulting us with a barrage of last-

minute claims, focusing primarily on the contention that he is intellectually disabled and

3 cannot be executed under Atkins v. Virginia,

(2002), or the Federal Death

Penalty Act of 1994,

(c).

There has been no dearth of process here, and we squarely rejected his contention

that he is intellectually disabled under Atkins. In 1993, a jury convicted Johnson of twenty-

seven counts, including seven murders. At sentencing, the defense retained an eminently

qualified University of Virginia psychologist, who gave a lengthy presentation to the jury

showing that Johnson had experienced a difficult childhood and suffered from a learning

disability, though he had to concede that Johnson was not intellectually disabled.

Unpersuaded, the jury recommended seven death sentences. After a failed direct appeal,

Johnson brought his first habeas petition in 1998, arguing inter alia that he could not be

executed because he was intellectually disabled. The district court denied the petition and

we affirmed, holding that he was not intellectually disabled and specifically rejecting his

argument that he could not be executed under Atkins, the case Johnson now rests his hopes

upon. United States v. Roane,

(4th Cir. 2004).

Since then, there have been seven more habeas petitions, accompanied by endless

motions, district court decisions, rejected appeals, and denied certiorari petitions. Johnson

has raised dozens of other claims that many different judges have rejected as meritless. The

courts have given exhaustive attention to petitioner’s case, and at some point allowing these

proceedings to travel further along this indefinite and interminable road brings the rule of

law into disrepute.

I should say finally that there is not the slightest question of innocence here. Johnson

has committed multiple murders of a horrific nature, and even in the depressing annals of

4 capital crimes, his case stands out. As Judge Novak recounted below, Johnson is a brutal

“serial killer” who was involved in at least ten murders as an enforcer for a large-scale

narcotics operation. United States v. Johnson, No. 3:92cr68,

, at *1-2 (E.D.

Va. Jan. 2, 2021). The time has long since passed for the judgment of the jury and that of

so many courts thereafter to be carried out.

5 DIANA GRIBBON MOTZ, Circuit Judge, concurring in No. 21-1 and No. 21-2, dissenting

in No. 20-15:

I.

I vote to deny the motions to stay execution in cases No. 21-1 and No. 21-2. I

believe the motion in No. 21-2 is untimely. However, the claim asserted by Petitioner

Johnson in No. 21-1 is both timely and raises grave concerns about the propriety of now

executing him. I write separately to explain why I believe binding precedent nonetheless

requires denial of that motion.

Since Johnson first contested his sentence on intellectual disability grounds, medical

standards have evolved, “[r]eflecting improved understanding . . . of how mental disorders

are expressed and can be recognized by trained clinicians.” Moore v. Texas,

(2017). In light of these advances, courts now routinely recalibrate decades-

old IQ test scores, recognizing the “statistically-proven phenomenon” that such test scores

are artificially inflated. Thomas v. Allen,

(11th Cir. 2010); see also

Walker v. True,

, 322–23 (4th Cir. 2005). Additionally, Johnson has, in the

intervening years, uncovered contemporaneous records from his adolescence that, at the

very least, raise significant questions about his intellectual functioning. No federal court

has ever assessed this evidence or considered whether it forecloses a lawful imposition of

the death penalty in Johnson’s case.

6 The death penalty is “unusual in its pain, in its finality, and in its enormity,” long

understood to exist “in a class by itself.” Furman v. Georgia,

(1972) (Brennan, J., concurring). Indeed, whenever “a defendant’s life is at stake,” courts

are “particularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia,

(1976). Congress created one such safeguard in

(c),

which provides that “a sentence of death shall not be carried out upon a person who is

mentally retarded.” As Justice Sotomayor recently observed, the “text and structure” of

this provision “lend significant support” to the view that the Government may not lawfully

“‘carr[y] out’ a death sentence” when a prisoner “is” “intellectually disabled under current

diagnostic standards.” Bourgeois v. Watson,

, 509 (2020) (Sotomayor, J.,

dissenting) (quoting

(c)). The majority of the Court, however, refused to

endorse this conclusion.

To obtain a stay of execution, Johnson must demonstrate “that he has a significant

possibility of success on the merits.” Dunn v. McNabb,

(2017). Given

recent Supreme Court precedent, I cannot conclude that Johnson has met this burden.

Accordingly, I must vote to deny the motion in No. 21-1.

II.

I vote to grant a stay of execution in No. 20-15 because Petitioner Johnson presents

a timely and serious challenge under the First Step Act that should be resolved prior to his

execution. Thus, I dissent from the court’s order denying a stay of execution in No. 20-15.

7 In my view, Johnson cannot be faulted for delay in bringing this motion because the

claim has only been available to him for a brief time. Of course, we must follow the

Supreme Court’s instruction that courts “apply ‘a strong equitable presumption against the

grant of a stay where a claim could have been brought at such a time as to allow

consideration of the merits without requiring entry of a stay.’” Hill v. McDonough,

(2006) (quoting Nelson v. Campbell,

(2004)). But this is

not a case where the “claim could have been brought more than a decade ago.” Gomez v.

U.S. Dist. Court,

(1992). The First Step Act of 2018, Pub. L. No. 115-

391,

, has been in effect only since December 21, 2018. And Johnson

brought this claim in the district court months before his execution date was set, so it can

hardly be described as “designed to achieve a stay.” Concurrence at 1. The reason this

matter is before us on the eve of Johnson’s execution stems from the fact of the

Government’s chosen scheduling, not any “dilatory tactics” attributable to Johnson.

On the merits, I am persuaded that Johnson’s claim that his conviction under

(e)(1)(A) is a covered offense under the First Step Act presents a novel

question that is deserving of further consideration. In determining what is a covered

offense, we look to the “statute of conviction.” United States v. Woodson,

(4th Cir. 2020). Johnson presents compelling arguments that his statute of conviction

is

— a cohesive statute centered on the definition of “continuing criminal

enterprise” in § 848(c) — for which the penalties of various subsections have indisputably

been modified. Alternatively, Johnson argues that, even viewing his statute of conviction

8 as § 848(e), Congress modified penalties for offenses embedded within that subsection, i.e.

§ 841(b)(1)(A). I believe these claims present difficult and important issues necessitating

adequate consideration by this court. Indeed, we recently calendared a case for oral

argument presenting these very questions. See No. 20-6505, United States v. Jenkins.

Accordingly, I vote to grant a stay of Johnson’s execution in No. 20-15 while this

serious and potentially meritorious claim remains unresolved.

9