`
`FILED: January 14, 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
`
`------------------------------
`
`THE CONSTITUTION PROJECT AT THE PROJECT ON GOVERNMENT
`OVERSIGHT
`
` Amicus Supporting Appellant
`
`
`
`___________________
`
`O R D E R
`___________________
`
`
`
`The Court denies the petition for rehearing en banc for Case Nos. 20-15 and 21-1.
`
`A requested poll of the Court failed to produce a majority of judges in regular active
`
`service and not disqualified who voted in favor of rehearing en banc. Judge Wilkinson,
`
`Judge Niemeyer, Judge Agee, Judge Diaz, Judge Floyd, Judge Richardson, Judge
`
`Quattlebaum, and Judge Rushing voted to deny rehearing en banc. Chief Judge Gregory,
`
`Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Thacker, and Judge Harris
`
`voted to grant rehearing en banc.
`
`
`
`Judge Wilkinson wrote a separate opinion concurring in the denial of rehearing en
`
`banc. Judge Wynn wrote a separate opinion dissenting from the denial of rehearing en banc.
`
`Entered at the direction of Judge Wilkinson.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`For the Court
`
`/s/ Patricia S. Connor, Clerk
`
`2
`
`
`
`WILKINSON, Circuit Judge, concurring in the denial of rehearing en banc:
`
`
`The reasons for my vote are set forth in my statement accompanying the panel’s
`
`order denying the stay of execution.
`
`3
`
`
`
`WYNN, Circuit Judge, dissenting from the denial of rehearing en banc:
`
`Corey Johnson is an intellectually disabled death row inmate who is scheduled to
`
`be executed later today at 6 p.m. EST. His emergency motion to stay execution was denied
`
`by a panel of this Court, and he seeks a rehearing en banc. Because Johnson has at least
`
`two potentially meritorious claims against his execution, I respectfully dissent from the
`
`denial of rehearing en banc.
`
`In 20-15, Johnson seeks reconsideration of his death sentence under the First Step
`
`Act. He was sentenced to death for the murders he had committed in relation to crack
`
`cocaine distribution, in violation of 21 U.S.C. § 848(e). Under Fourth Circuit precedent,
`
`his convictions under § 848(e) are “covered offenses” for purposes of the First Step Act.
`
`See, e.g., United States v. Wirsing, 943 F.3d 175, 186 (4th Cir. 2019); United States v.
`
`Woodson, 962 F.3d 812, 816 (4th Cir. 2020); United States v. Chambers, 956 F.3d 667,
`
`670 (4th Cir. 2020). Therefore, Johnson is legally entitled to reconsideration of his
`
`sentence, and the sentencing judge must properly consider factors including the
`
`overwhelming evidence of his intellectual disability and his excellent prison record. The
`
`district court clearly erred in holding that he would not be entitled to a sentence reduction
`
`even if his convictions were “covered” by the First Step Act.
`
`In 21-1, Johnson makes a compelling statutory argument that the Federal Death
`
`Penalty Act, 18 U.S.C. § 3596(c), prohibits his execution. Under § 3596(c), a death
`
`sentence “shall not be carried out upon a person who is mentally retarded.” The plain text,
`
`structure, and history of the statute seem to clearly indicate Congress’s intent to allow an
`
`inquiry at the time of execution. Although Johnson fell just 2 points short (77) of the IQ
`
`4
`
`
`
`threshold for intellectual disability (70–75) in 1993, the newly available evidence
`
`convincingly demonstrates that his old IQ score is incorrect and that he is intellectually
`
`disabled under current diagnostic standards. But no court has ever considered such
`
`evidence. If Johnson’s death sentence is carried out today, the United States will execute
`
`an intellectually disabled person, which is unconstitutional.
`
`In sum, Johnson should be afforded an opportunity to have his meritorious claims
`
`properly considered and to vindicate his rights. And contrary to the Government, he is not
`
`making a “last-minute” attempt to unduly delay his execution. He has timely pursued his
`
`challenges under both the First Step Act and the Federal Death Penalty Act. If anything,
`
`these emergency motions became necessary only because the Government scheduled his
`
`execution while his First Step Act claim was being litigated. Therefore, I vote to grant his
`
`petition for rehearing en banc.
`
`5
`
`