     Case: 19-10312      Document: 00515338476         Page: 1    Date Filed: 03/10/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                       March 10, 2020
                                      No. 19-10312
                                                                       Lyle W. Cayce
                                                                            Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JASON LEE JOHNSTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:18-CV-976
                             USDC No. 4:07-CR-130-1


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Jason Lee Johnston, federal prisoner # 36805-177, moves for a certificate
of appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C.
§ 2255 motion challenging his convictions of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1); attempted first degree
murder of a federal officer, in violation of 18 U.S.C. § 1114(3); and carrying and
using a firearm in furtherance of crimes of violence, in violation of 18 U.S.C.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-10312

§ 924(c)(1)(A)(iii). He also appeals the district court’s denials of his motions for
an evidentiary hearing and for recusal during his § 2255 proceedings. See
Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). The district court
determined that the § 2255 motion was untimely and that Johnston’s excuses
for failing to timely file his § 2255 motion lacked merit.
      Johnston acknowledges that his § 2255 motion was untimely under 28
U.S.C. § 2255(f)(1). However, he contends that he is entitled to statutory
tolling under § 2255(f) because (1) his “attempts” on June 22, 2016, to file a
§ 2255 motion were thwarted when the allegedly inadequate prison law library
failed to make § 2255 forms readily available to him; (2) attorney misconduct
and abandonment and judicial misconduct constituted governmental
impediments to filing a timely § 2255 motion; and (3) he was entitled to relief
based on retroactively applicable amendments to the Sentencing Guidelines
and changes in decisional law that occurred after the expiration of the one-year
limitations period of § 2255(f)(1). He also argues that he was entitled to
equitable tolling based on attorney and judicial misconduct, his mental
disabilities, his placement in solitary confinement, and changes in the law.
Additionally, he contends that he is entitled to equitable relief because he is
actually and factually innocent and is subject to a miscarriage of justice.
      To obtain a COA, Johnston must make “a substantial showing of the
denial of a constitutional right.”     28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). Where, as here, the district court’s denial
of federal habeas relief is based on procedural grounds, this court will issue a
COA “when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529



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                                  No. 19-10312

U.S. 473, 484 (2000).       Johnston’s arguments do not meet this standard.
Johnston also has not shown that the district court abused its discretion in
denying his motions for an evidentiary hearing and for recusal. See United
States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013); Matassarin v. Lynch, 174 F.3d
549, 571 (5th Cir. 1999).
      To the extent that Johnston’s COA motion contends that he is
challenging his conviction of violating § 924(c)(1)(A)(iii), rather than
§ 922(g)(1), under United States v. Davis, 139 S. Ct. 2319 (2019), he is raising
the argument for the first time in his COA motion, and thus we lack
jurisdiction to consider it. See Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018),
cert. denied, 2020 WL 129541 (U.S. Jan. 13, 2020). Nevertheless, Johnston is
advised that under § 2255(f)(3), he has one year from the Supreme Court’s
decision in Davis to file a successive § 2255 motion challenging his conviction
under § 924(c)(1)(A)(iii) based on Davis, should this court authorize him to file
such a successive § 2255 motion. See Davis, 139 S. Ct. at 2319, 2336; Dodd v.
United States, 545 U.S. 353, 357-59 (2005); § 2255(f)(3), (h)(2).
      In light of the foregoing, Johnston’s motion for a COA is DENIED. The
district court’s denials of his motions for an evidentiary hearing and for recusal
are AFFIRMED.




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