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United States v. Johnson

United States District Court, E.D. Virginia, Richmond Division

April 17, 2015

UNITED STATES OF AMERICA
v.
EDWARD T. JOHNSON, JR

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

Edward T. Johnson, Jr., a federal inmate proceeding pro se, submitted this motion and a supporting memorandum under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (ECF No. 38.) Johnson raises the following claims for relief:[1]

Claim One: Counsel rendered ineffective assistance by failing to file a motion to suppress evidence seized.
Claim Two: Counsel rendered ineffective assistance by "failing to argue and raise any affirmative defense such as entrapment, entrapment by estoppel and a confidential informant cannot serve a[s] 2nd party to conspiracy." (§ 2255 Mot. 6.)
Claim Three: Counsel rendered ineffective assistance "for erroneously advising Petitioner to plead guilty to a statement of fact, which was not knowingly not voluntarily entered." (Id. at 8.)
Claim Four: Counsel rendered ineffective assistance by "advising Petitioner to accept a waiver of right to a Rule 11 before a U.S. District Judge and erroneously advising Petitioner to plead guilty to a statement of fact before a Magistrate Judge." (Id. at 9.)
Claim Five: The Government "err led) in arguing against the Fair Sentencing Act of 2012." (Mem. Supp. § 2255 Mot. 11, ECF No. 39.)
Claim Six: Counsel rendered ineffective assistance "for failing to file a direct appeal, in advance of the United States Attorney filing." (Id. at 12 (capitalization corrected) (emphasis omitted).)

The Government has responded. Johnson has not filed a reply. The matter is ripe for disposition.

I. FACTUAL AND PROCEDURAL HISTORY

The grand jury charged Johnson in a two-count indictment with conspiracy to distribute fifty grams or more of cocaine base (Count One) and distribution of cocaine hydrochloride (Count Two). (Indictment 1-2, ECF No. 1.) On June 11, 2010, Johnson waived his right to a Rule 11 hearing before a United States District Judge and pled guilty to both counts. (ECF Nos. 11-13.) In the Statement of Facts, Johnson agreed that "the factual allegations contained in this Statement of Facts and in Counts One and Two of the Indictment filed in this case are true and correct, and that the United States could have proven them beyond a reasonable doubt." (Statement of Facts 1, ECF No. 13.) Johnson agreed that:

1. Beginning on or before July 1, 2009, and continuing through and including on or about February 17, 2010, in the Eastern District of Virginia and within the jurisdiction of the Court, the defendant, EDWARD T. JOHNSON, JR., did knowingly, intentionally, and unlawfully combine, conspire, confederate and agree with others, known and unknown, to distribute, and possess with the intent to distribute, fifty grams or more of a mixture and substance described in Title 21, United States Code, Section 841(b)(1)(A)(iii), containing a detectable amount of cocaine base, commonly known as "crack, " a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841 (a), in violation of Title 21, United States Code, Sections 846, 841(a)(1) and 841(b)(1)(A)(iii).
2. On or about the 5th day of November, 2009, in the Eastern District of Virginia and within the jurisdiction of this Court, the defendant, EDWARD T. JOHNSON, JR., did knowingly, intentionally, and unlawfully distribute a mixture and substance containing a detectable amount of cocaine hydrochloride, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C).
3. Beginning in 2009, the Naval Criminal Investigative Service, the Federal Bureau of Investigation, the Virginia State Police, and the Fredericksburg Police Department began an investigation into the narcotics distribution activities of EDWARD T. JOHNSON, JR. and others.
4. During the time period set forth in the indictment, four controlled purchases of cocaine base, commonly known as "crack, " and cocaine hydrochloride were made from JOHNSON and his co-conspirator. On July 1, 2009, a confidential source ("CS") purchased 26.6 grams of a mixture and substance containing a detectable amount of cocaine base from JOHNSON and his co-conspirator. On July 10, 2009, a CS purchased 27.2 grams of a mixture and substance containing a detectable amount of cocaine base from JOHNSON and his co-conspirator. On August 19, 2009, a CS purchased 24.8 grams of a mixture and substance containing a detectable amount of cocaine base, as well as 26.9 grams of a mixture and substance containing a detectable amount of cocaine hydrochloride, from JOHNSON and his coconspirator. On September 29, 2009, a CS purchased 13.2 grams of a mixture and substance containing a detectable amount of cocaine hydrochloride from JOHNSON and his coconspirator. JOHNSON conducted all of these controlled purchases in conjunction with his coconspirator and in furtherance of their conspiracy[.]
5. On November 5, 2009, JOHNSON alone sold 13.7 grams of a mixture and substance containing a detectable amount of cocaine hydrochloride to a CS. JOHNSON conducted this controlled purchase in furtherance of the conspiracy.
6. In addition to the above, JOHNSON supplied cocaine base and cocaine hydrochloride to a co-conspirator from July 1, 2009, to February 17, 2010. The coconspirator then re-sold the cocaine base and cocaine hydrochloride to others. During this time period, JOHNSON supplied 66.2 grams of a mixture and substance containing a detectable amount of cocaine base and 101.7 grams of a ...

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