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Johnson v. Booker

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

October 21, 2016

Eric Deshawn Johnson, Petitioner,
v.
Bernard Booker, Respondent.

          MEMORANDUM OPINION

         Eric Deshawn Johnson, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of attempted first degree murder and other offenses entered on a negotiated plea of guilty in the Circuit Court for the City of Chesapeake. Before this Court is the respondent's Motion to Dismiss this petition.

         I. Background

         On March 14, 2014, petitioner pleaded guilty to attempted first degree murder, attempted malicious wounding, two related counts of use of a firearm, shooting into an occupied vehicle, destruction of property, and communicating a threat. Case Nos. CR13-2467-00, -03, -04, -05, -08, -09, and -11. As part of the plea agreement, the Commonwealth nolle prosequied additional charges of attempted first degree murder, attempted malicious wounding, two related firearms counts, and destruction of property. Petitioner was sentenced to an aggregate of forty-three (43) years incarceration with thirty-three (33) years suspended, for a total active sentence often (10) years.

         Petitioner noticed an appeal to the Court of Appeals of Virginia, raising the following claim:

The trial court abused its discretion in sentencing appellant to ten (10) years of imprisonment, and failed to account adequately for mitigating circumstances and give due consideration to running appellant's sentences concurrently. (This issue was not preserved at sentencing. Therefore, appellant asked that this Court consider the issue under the 'ends of justice' exception to Supreme Court Rule 5:25 and Virginia Court of Appeals Rule 5A:18 ...)

         The Court of Appeals denied the petition for appeal, rinding as follows:

"It is well settled that when the maximum punishment is prescribed by statute, 'and the sentence [imposed] does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion.'" Valentine v. Commonwealth. 18 Va.App. 334, 339, 443 S.E.2d 445, 448 (1994) (quoting Abdo v. Commonwealth. 218 Va. 473, 479, 237 S.E.2d 900, 903 (1997)).
The sentences imposed by the trial judge were within the ranges set by the legislature. See Code §§ 18.2-53.1 and 18.2-154. It is within the trial court's purview to weigh any mitigating factors presented by appellant and to determine whether it is advisable to run sentences concurrently or consecutively. Accordingly, the judge did not abuse his discretion.

Johnson v. Commonwealth. R. No. 0692-14-1 (Va. Ct. App. Dec. 18, 2014). The Supreme Court of Virginia refused petitioner's application for further review. Johnson v. Commonwealth. R. No. 150105 (Va. Aug. 13, 2015).

         Petitioner did not file a action for a state writ of habeas corpus. Instead, he turned to the federal forum and timely filed this application for relief pursuant to 28 U.S.C. § 2254, raising the following claims:

1. The trial court abused its discretion in sentencing him to 10 years active time and in not ordering that the sentences imposed on the two convictions for use of a firearm under Virginia Code § 18.2-53.1 be served concurrently.
2. The trial court inadequately considered several mitigating circumstances.
3. The trial court did not adequately evaluate the evidence of his learning disability, depression and bipolar condition.
4. The sentence of 10 years is disproportionate and contrary to the Eighth Amendment protection against cruel and ...

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