                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-21-2008

Johnson v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4706




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"Johnson v. USA" (2008). 2008 Decisions. Paper 1547.
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ALD-128                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-4706
                                     ___________

                                HAKIEM JOHNSON,
                                                           Appellant

                                           v.

                         UNITED STATES OF AMERICA
                     ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 07-cv-03672)
                     District Judge: Honorable R. Barclay Surrick
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 14, 2008

           Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges.

                              (Filed: February 21, 2008)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Hakiem Johnson appeals, pro se, from the District Court’s denial of his habeas

corpus petition. We will summarily affirm. See LAR 27.4; I.O.P. 10.6.
                                              I.

       Johnson is a defendant in a complex criminal case currently pending before the

District Court. (See United States v. Coles, et al., E.D. Pa. Crim. No. 04-cr-00440.) He is

represented by court-appointed counsel. It appears that the indictments charged Johnson

and twenty-one co-defendants with numerous offenses related to an alleged drug

conspiracy. The District Court has conducted suppression hearings in the criminal case,

and Johnson’s jury trial is currently scheduled to begin in April 2008.

       On August 31, 2007, Johnson filed a pro se petition pursuant to 28 U.S.C. § 2241.

He requested the dismissal of the indictment against him and his release from pre-trial

custody on such grounds as prosecutorial misconduct and perjury by police officers and

federal agents with respect to a search warrant’s affidavit of probable cause. Johnson

also filed a motion to amend his habeas petition, in which he reiterated his allegations

regarding the affidavit and also referred to alleged violations of his rights under the

Speedy Trial Act and the Double Jeopardy Clause. On November 8, 2007, the District

Court denied Johnson’s petition as frivolous.

                                             II.

       The District Court committed no error in denying Johnson’s pre-trial habeas

petition.1 We find that Johnson’s claims of misconduct and perjury failed to implicate the

legality of his pre-trial custody for purposes of § 2241. As opposed to challenging the


       1
           We have jurisdiction under 28 U.S.C. § 1291.

                                              2
validity of the detention order authorizing his incarceration pending the outcome of his

criminal trial, Johnson in essence raised Fourth Amendment issues, which are generally

addressed in the context of motions to suppress. Johnson apparently attempted to

construct the following chain connecting the Fourth Amendment issues with his current

custody: (1) the affidavit of probable cause contained lies and misrepresentations (which

have been reiterated during the course of the criminal case); (2) the search warrant was

issued based on the affidavit; (3) the search resulted in his arrest; and (4) his arrest led to

his current incarceration and prosecution. Similarly, he argued that “he is not in custody

pursuant to an act of congress [but pursuant] to an act of perjury committed by the

[Assistant United States Attorney] and [law enforcement personnel].” (Mem. of Law at

2.) Nevertheless, his conclusory assertions are insufficient to establish the necessary

nexus between the alleged misconduct and the legality of his current custody. See Brown

v. Lundgren, 528 F.2d 1050, 1054 (5th Cir. 1976) (“There must be a sufficient nexus

between the allegedly [illegal] action and the legality of his custody for habeas corpus to

lie.”).

          Furthermore, Johnson is a represented defendant in a current criminal case. A

criminal defendant would generally be expected to raise Fourth Amendment, speedy trial,

and double jeopardy claims in a counseled motion in the criminal case itself. As the

District Court noted, suppression hearings have been held in Johnson’s criminal case.

Furthermore, Johnson himself is represented by counsel. Cf. United States v. Essig, 10



                                               3
F.3d 968, 973 (3d Cir. 1993) (stating that district court has no obligation to act on pro se

filings by party represented by counsel). Johnson’s case is scheduled to be heard by a

jury, which will render a decision as to whether he is guilty or not guilty of the charges

against him. If found guilty, Johnson will then have an opportunity to file a direct appeal

to this Court from his conviction and sentence. He then may file a post-conviction

motion under 28 U.S.C. § 2255 if his direct appeal is unsuccessful.

                                             III.

       For the foregoing reasons, Johnson’s appeal fails to present a substantial question

on appeal, and we will summarily affirm the District Court’s order. See LAR 27.4;

I.O.P. 10.6.




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