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`FILED: January 12, 2021
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`___________________
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`No. 20-15
`(3:92-cr-00068-DJN-2)
`___________________
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`UNITED STATES OF AMERICA
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` Plaintiff - Appellee
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`v.
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`COREY JOHNSON, a/k/a O, a/k/a CO
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` Defendant - Appellant
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`___________________
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`No. 21-1
`(3:92-cr-00068-DJN-2)
`(3:20-cv-00957-DJN)
`___________________
`
`
`UNITED STATES OF AMERICA
`
` Plaintiff - Appellee
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`v.
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`COREY JOHNSON, a/k/a O, a/k/a CO
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` Defendant - Appellant
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`------------------------------
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`THE CONSTITUTION PROJECT AT THE PROJECT ON GOVERNMENT
`OVERSIGHT
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` Amicus Supporting Appellant
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`___________________
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`No. 21-2
`(3:92-cr-00068-DJN-2)
`___________________
`
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`In re: COREY JOHNSON, a/k/a O, a/k/a CO
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` Movant
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`___________________
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`O R D E R
`___________________
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`Upon consideration of submissions relative to the motions for stay of execution filed
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`in Case No. 20-15, United States v. Corey Johnson, Case No. 21-1, United States v. Corey
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`Johnson, and Case No. 21-2, In re: Corey Johnson, the court denies the motions for stay
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`of execution.
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`In No. 20-15, Judge Wilkinson and Judge Floyd voted to deny the motion for stay,
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`and Judge Motz voted to grant the motion.
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`In Nos. 21-1 and 21-2, Judge Wilkinson, Judge Motz, and Judge Floyd all voted to
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`deny the motions for stay of execution.
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`Judge Wilkinson wrote a separate opinion. Judge Motz wrote a separate opinion,
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`concurring in the denial of the motions in No. 21-1 and No. 21-2 and dissenting from the
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`denial of the motion in No. 20-15.
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`For the Court
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`/s/ Patricia S. Connor, Clerk
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`2
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`WILKINSON, Circuit Judge:
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`I vote to deny a stay of execution and to deny all the subsidiary motions directed
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`toward that singular end. The Supreme Court has warned against this flurry of last-minute
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`motions designed to achieve a stay by virtue of allowing the courts severely limited
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`consideration time. See Bucklew v. Precythe, 139 S. Ct. 1112, 1134 (2019) (instructing
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`courts to “police carefully against attempts to use [] challenges as tools to interpose
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`unjustified delay” and explaining that stay requests can be denied if they are filed at the
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`last minute). “Last-minute stays . . . should be the extreme exception, not the norm.” Barr.
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`v. Lee, 140 S. Ct. 2590, 2591 (2020) (internal quotation marks omitted). Here, Johnson had
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`ample time to raise the issues that are only now advanced before us, giving us (and the
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`Supreme Court) just a few days before the scheduled execution date. The very numerosity
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`of filings, both statutory and constitutional, betrays a manipulative intention to circumvent
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`not only the strictures of AEDPA but the Supreme Court’s warnings against procedural
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`gamesmanship designed to bring the wheels of justice to a halt. We should not reward such
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`dilatory tactics.
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`It is disheartening to say the least to watch the Supreme Court’s warnings
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`disregarded. “Both the State and the victims of crime have an important interest in the
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`timely enforcement of a sentence.” Hill v. McDonough, 547 U.S. 573, 584 (2006). Yet
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`these interests have been ignored while Johnson’s case has dragged on through the federal
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`system for decades. Now Johnson seeks more delay, assaulting us with a barrage of last-
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`minute claims, focusing primarily on the contention that he is intellectually disabled and
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`3
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`cannot be executed under Atkins v. Virginia, 536 U.S. 304 (2002), or the Federal Death
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`Penalty Act of 1994, 18 U.S.C. § 3596(c).
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`There has been no dearth of process here, and we squarely rejected his contention
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`that he is intellectually disabled under Atkins. In 1993, a jury convicted Johnson of twenty-
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`seven counts, including seven murders. At sentencing, the defense retained an eminently
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`qualified University of Virginia psychologist, who gave a lengthy presentation to the jury
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`showing that Johnson had experienced a difficult childhood and suffered from a learning
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`disability, though he had to concede that Johnson was not intellectually disabled.
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`Unpersuaded, the jury recommended seven death sentences. After a failed direct appeal,
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`Johnson brought his first habeas petition in 1998, arguing inter alia that he could not be
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`executed because he was intellectually disabled. The district court denied the petition and
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`we affirmed, holding that he was not intellectually disabled and specifically rejecting his
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`argument that he could not be executed under Atkins, the case Johnson now rests his hopes
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`upon. United States v. Roane, 378 F.3d 382, 408-09 (4th Cir. 2004).
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`Since then, there have been seven more habeas petitions, accompanied by endless
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`motions, district court decisions, rejected appeals, and denied certiorari petitions. Johnson
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`has raised dozens of other claims that many different judges have rejected as meritless. The
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`courts have given exhaustive attention to petitioner’s case, and at some point allowing these
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`proceedings to travel further along this indefinite and interminable road brings the rule of
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`law into disrepute.
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`I should say finally that there is not the slightest question of innocence here. Johnson
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`has committed multiple murders of a horrific nature, and even in the depressing annals of
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`4
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`capital crimes, his case stands out. As Judge Novak recounted below, Johnson is a brutal
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`“serial killer” who was involved in at least ten murders as an enforcer for a large-scale
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`narcotics operation. United States v. Johnson, No. 3:92cr68, 2021 WL 17809, at *1-2 (E.D.
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`Va. Jan. 2, 2021). The time has long since passed for the judgment of the jury and that of
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`so many courts thereafter to be carried out.
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`5
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`DIANA GRIBBON MOTZ, Circuit Judge, concurring in No. 21-1 and No. 21-2, dissenting
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`in No. 20-15:
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`I vote to deny the motions to stay execution in cases No. 21-1 and No. 21-2. I
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`I.
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`believe the motion in No. 21-2 is untimely. However, the claim asserted by Petitioner
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`Johnson in No. 21-1 is both timely and raises grave concerns about the propriety of now
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`executing him. I write separately to explain why I believe binding precedent nonetheless
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`requires denial of that motion.
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`Since Johnson first contested his sentence on intellectual disability grounds, medical
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`standards have evolved, “[r]eflecting improved understanding . . . of how mental disorders
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`are expressed and can be recognized by trained clinicians.” Moore v. Texas, 137 S. Ct.
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`1039, 1053 (2017). In light of these advances, courts now routinely recalibrate decades-
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`old IQ test scores, recognizing the “statistically-proven phenomenon” that such test scores
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`are artificially inflated. Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010); see also
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`Walker v. True, 399 F.3d 315, 322–23 (4th Cir. 2005). Additionally, Johnson has, in the
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`intervening years, uncovered contemporaneous records from his adolescence that, at the
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`very least, raise significant questions about his intellectual functioning. No federal court
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`has ever assessed this evidence or considered whether it forecloses a lawful imposition of
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`the death penalty in Johnson’s case.
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`6
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`The death penalty is “unusual in its pain, in its finality, and in its enormity,” long
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`understood to exist “in a class by itself.” Furman v. Georgia, 408 U.S. 238, 287, 289
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`(1972) (Brennan, J., concurring). Indeed, whenever “a defendant’s life is at stake,” courts
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`are “particularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia,
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`428 U.S. 153, 187 (1976). Congress created one such safeguard in 18 U.S.C. § 3596(c),
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`which provides that “a sentence of death shall not be carried out upon a person who is
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`mentally retarded.” As Justice Sotomayor recently observed, the “text and structure” of
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`this provision “lend significant support” to the view that the Government may not lawfully
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`“‘carr[y] out’ a death sentence” when a prisoner “is” “intellectually disabled under current
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`diagnostic standards.” Bourgeois v. Watson, 141 S. Ct. 507, 509 (2020) (Sotomayor, J.,
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`dissenting) (quoting 18 U.S.C. § 3596(c)). The majority of the Court, however, refused to
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`endorse this conclusion.
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`To obtain a stay of execution, Johnson must demonstrate “that he has a significant
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`possibility of success on the merits.” Dunn v. McNabb, 138 S. Ct. 369 (2017). Given
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`recent Supreme Court precedent, I cannot conclude that Johnson has met this burden.
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`Accordingly, I must vote to deny the motion in No. 21-1.
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`II.
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`I vote to grant a stay of execution in No. 20-15 because Petitioner Johnson presents
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`a timely and serious challenge under the First Step Act that should be resolved prior to his
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`execution. Thus, I dissent from the court’s order denying a stay of execution in No. 20-15.
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`7
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`In my view, Johnson cannot be faulted for delay in bringing this motion because the
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`claim has only been available to him for a brief time. Of course, we must follow the
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`Supreme Court’s instruction that courts “apply ‘a strong equitable presumption against the
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`grant of a stay where a claim could have been brought at such a time as to allow
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`consideration of the merits without requiring entry of a stay.’” Hill v. McDonough, 547
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`U.S. 573, 584 (2006) (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)). But this is
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`not a case where the “claim could have been brought more than a decade ago.” Gomez v.
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`U.S. Dist. Court, 503 U.S. 653, 654 (1992). The First Step Act of 2018, Pub. L. No. 115-
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`391, 132 Stat. 5194, has been in effect only since December 21, 2018. And Johnson
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`brought this claim in the district court months before his execution date was set, so it can
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`hardly be described as “designed to achieve a stay.” Concurrence at 1. The reason this
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`matter is before us on the eve of Johnson’s execution stems from the fact of the
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`Government’s chosen scheduling, not any “dilatory tactics” attributable to Johnson. Id.
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`On the merits, I am persuaded that Johnson’s claim that his conviction under 21
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`U.S.C. § 848(e)(1)(A) is a covered offense under the First Step Act presents a novel
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`question that is deserving of further consideration. In determining what is a covered
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`offense, we look to the “statute of conviction.” United States v. Woodson, 962 F.3d 812,
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`816 (4th Cir. 2020). Johnson presents compelling arguments that his statute of conviction
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`is 21 U.S.C. § 848 — a cohesive statute centered on the definition of “continuing criminal
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`enterprise” in § 848(c) — for which the penalties of various subsections have indisputably
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`been modified. Alternatively, Johnson argues that, even viewing his statute of conviction
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`8
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`as § 848(e), Congress modified penalties for offenses embedded within that subsection, i.e.
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`§ 841(b)(1)(A). I believe these claims present difficult and important issues necessitating
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`adequate consideration by this court. Indeed, we recently calendared a case for oral
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`argument presenting these very questions. See No. 20-6505, United States v. Jenkins.
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`Accordingly, I vote to grant a stay of Johnson’s execution in No. 20-15 while this
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`serious and potentially meritorious claim remains unresolved.
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`9
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