United States District Court, W.D. New York
May 12, 2005.
KYLE JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: RICHARD ARCARA, District Judge
DECISION AND ORDER
On April 25, 2000, petitioner Kyle Johnson was indicted on one
count of possession with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A), and one count of possession of cocaine base in
excess of 5 grams, in violation of 21 U.S.C. § 844(a).
Petitioner's first trial ended in a mistrial. A second trial
began on October 3, 2000.
On October 6, 2000, the jury returned a verdict of guilty on
the charge of possession with intent to distribute 50 grams or
more of cocaine base. On January 18, 2001, the Court sentenced
petitioner to a term of imprisonment of 121 months. Judgement was
entered on January 25, 2001. Petitioner appealed his conviction
to the Second Circuit Court of Appeals, and on October 11, 2001,
the Second Circuit affirmed petitioner's conviction. See
United States v. Johnson, 20 Fed. Appx. 81 (2d Cir. 2001).
On July 31, 2002, petitioner filed the instant motion under
28 U.S.C. § 2255 motion. By Decision and Order filed June 13, 2003,
the Court denied the § 2255 motion, and also denied a certificate of appealability. Judgment
was entered that same day.
On June 26, 2003, petitioner filed a notice of appeal with the
Second Circuit, appealing this Court's denial of his § 2255
motion. On October 23, 2003, the Second Circuit granted
petitioner's motion for a certificate of appealability as to the
issues of whether (1) petitioner's retrial violated the Double
Jeopardy Clause; (2) trial counsel's failure to raise a double
jeopardy objection before the second trial or on appeal amounted
to ineffective assistance of counsel; and (3) the district court
erred by not holding an evidentiary hearing or expanding the
record to include an affidavit from petitioner's trial attorney
before rejecting petitioner's argument that his attorney did not
allow him to testify on his own behalf.
On December 31, 2003, petitioner filed a Rule 60(b) motion for
reconsideration of the Court's Decision and Order of June 13,
2003, denying his § 2255 motion. On November 22, 2004, the Court
denied petitioner's Rule 60(b) motion.
On February 14, 2005, petitioner filed a second Rule 60(b)
motion. On February 17, 2005, the Court denied that motion as
On March 4, 2005, petitioner filed a notice of appeal regarding
the Court's February 17th Order denying his second Rule 60(b)
motion. In the notice of appeal, he also moves for a certificate
The Court finds that petitioner has failed to make a
substantial showing of the denial of a constitutional right and
therefore denies his motion for a certificate of appealability.
28 U.S.C. § 2253(c)(2). IT IS SO ORDERED.
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