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Johnson v. Director, Virginia Department of Corrections

United States District Court, Fourth Circuit

December 17, 2013

KENNETH WAYNE JOHNSON, Petitioner,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

MEMORANDUM OPINION

JAMES C. TURK, Senior District Judge.

Kenneth Wayne Johnson, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the November 15, 2011 judgment of the Circuit Court of the Washington County, under which he stands convicted of drug offenses and sentenced to 70 years in prison, with 62 years and two months suspended. Upon review of the records, the court concludes that the respondent's motion to dismiss must be granted.

I

Johnson pleaded guilty on November 10, 2011, pursuant to a written plea agreement, to three counts of distributing a schedule II controlled substance, in violation of Va. Code § 18.2-248(C) (Case Nos. CR110000336, CR11000340, and CR11000341), and conspiring to distribute a schedule III controlled substance, in violation of Va. Code §§ 18.2-256 and 18.2-248(E1) (Case No. CR11000339). In the plea agreement, Johnson stipulated that the evidence the Commonwealth could offer against him was sufficient to support his conviction. In exchange, the Commonwealth agreed to dismiss two other drug charges and agreed to recommend that Johnson receive terms of 20 years in prison for each of the distribution counts and 10 years for the conspiracy offense, for a total of 70 years in prison, but with 62 years and two months suspended.

The plea agreement indicated that Johnson understood the charges, that he had consulted with his attorney and was satisfied with the attorney's services, and that he was aware of the terms and consequences of his plea agreement. The agreement also indicated that Johnson not been coerced or promised anything by the Commonwealth in exchange for the plea other than the written terms of the agreement and independently decided to enter the plea. Johnson also signed a guilty plea questionnaire, among other things affirming his understanding of the charges, the consequences of pleading guilty, the potential sentence he faced of 180 years in prison, and his satisfaction with counsel's services.

At the plea hearing, the trial judge asked Johnson about the guilty plea questionnaire, and Johnson verbally affirmed that he had read and answered its questions truthfully and understood both the questions and his answers. Johnson also verbally affirmed that he had read and understood the plea agreement, including its reference to a specific sentence recommendation and his stipulation that the Commonwealth could prove all elements of the offenses charged and that jurisdiction and venue were proper. As additional factual support for the plea, the Commonwealth offered into evidence certificates of analysis on the drugs involved in the transactions for which Johnson was charged and evidence of his prior drug trafficking convictions.

Counsel informed the court that he and Johnson had discussed an alternative strategy: "I would like to note for the record that Mr. Johnson and I spent two days, basically, discussing this plea agreement after I was substituted [as counsel]. We did discuss the potential accommodation defense and after full and fair discussion decided to take the plea agreement." Tr. 7, Nov. 10, 2011. Before accepting Johnson's plea and pronouncing sentence, the court asked Johnson if he had anything to say. Johnson stated:

I don't think, sir, that there's a person in this courtroom right here that would watch one of their pets or one of their animals suffer a slow painful death. And that's what they've done to me here over a few pain pills that I-I wasn't setting on selling pain pills. A man came to my house and begged me to go out the street and get him some. And I'm going to die in prison a slow miserable death over this.

Tr. 10. The court found that Johnson understood and agreed with the facts of the case and was freely and intelligently pleading guilty. The court then sentenced Johnson in accordance with the plea agreement to a total of 70 years in prison with 62 years and two months suspended. Johnson did not appeal.

In August of 2012, Johnson filed a timely petition for a writ of habeas corpus in the Supreme Court of Virginia. By order dated April 18, 2013, the Supreme Court of Virginia dismissed Johnson's petition (Record No. 121476).

Johnson then filed his timely § 2254 petition. Liberally construed, he alleges the following claims for relief:

1. Petitioner was only guilty of distributing drugs as an accommodation and counsel advised against this defense, erroneously stating that if money changed hands, the transaction was not accommodation;
>2. Petitioner's sentence violated the 8th Amendment because it was disproportionate to his crime;
3. Petitioner's sentence violated the 14th Amendment by treating him differently than ...

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