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
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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, 139 S. Ct. 1112, 1134 (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, 140 S. Ct. 2590, 2591 (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, 547 U.S. 573, 584 (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
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cannot be executed under Atkins v. Virginia, 536 U.S. 304 (2002), or the Federal Death
Penalty Act of 1994, 18 U.S.C. § 3596(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, 378 F.3d 382, 408-09 (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
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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, 2021 WL 17809, 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.
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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, 137 S. Ct.
1039, 1053 (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, 607 F.3d 749, 757 (11th Cir. 2010); see also
Walker v. True, 399 F.3d 315, 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.
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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, 408 U.S. 238, 287, 289
(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,
428 U.S. 153, 187 (1976). Congress created one such safeguard in 18 U.S.C. § 3596(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, 141 S. Ct. 507, 509 (2020) (Sotomayor, J.,
dissenting) (quoting 18 U.S.C. § 3596(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, 138 S. Ct. 369 (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.
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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, 547
U.S. 573, 584 (2006) (quoting Nelson v. Campbell, 541 U.S. 637, 650 (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, 503 U.S. 653, 654 (1992). The First Step Act of 2018, Pub. L. No. 115-
391, 132 Stat. 5194, 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. Id.
On the merits, I am persuaded that Johnson’s claim that his conviction under 21
U.S.C. § 848(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, 962 F.3d 812,
816 (4th Cir. 2020). Johnson presents compelling arguments that his statute of conviction
is 21 U.S.C. § 848 — 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
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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.
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