United States v. Allen Johnson

MEMORANDUM

In 2005, Allen Johnson pleaded guilty to six counts of honest services wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346, and conspiracy to launder the proceeds of the honest services wire fraud, in violation of 18 U.S.C. § 1956 (h). He appealed, but only as to the district court’s restitution order. See United States v. Johnson, 338 Fed.Appx. 561, 562 (9th Cir.2009) (affirming restitution order). In 2010, Johnson filed a motion to vacate his sentence under 28 U.S.C. § 2255 , arguing that the conduct to which he pleaded guilty no longer constitutes honest services fraud based on the Supreme Court’s decision in Skilling v. United States, 561 U.S. 358 , 130 S.Ct. 2896 , 177 L.Ed.2d 619 (2010). The district court determined that Johnson’s Skilling claim was proeedurally defaulted and denied the motion. We have jurisdiction under 28 U.S.C. § 1291 and 2253, and we affirm.

Johnson maintains that resolution of this appeal turns on whether he is “actually innocent” of honest services wire fraud. See Bousley v. United States, 523 U.S. 614, 622 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998) (“Where a defendant has proeedurally defaulted a claim by failing to raise it on direct…