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United States v. Johnson

United States District Court, E.D. Virginia

August 11, 2017



          Robert E. Payne Senior United States District Judge

         Antonio Johnson, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECF No. 69) .[1] Johnson claims that counsel rendered ineffective assistance[2] throughout his criminal proceedings. Specifically, Johnson demands relief because:

Claim One: "Trial counsel was ineffective based on her failure to object to this Court's use of Petitioner's juvenile history." (Id. at 5.)
Claim Two: "Trial counsel was ineffective for urging Petitioner to reject a more favorable plea bargain." (Id. at 6.)
Claim Three: "Trial counsel was ineffective for not appealing the denial of Petitioner's motion to suppress." (Id. at 8.)
Claim Four: "'Trial counsel rendered ineffective assistance of counsel when [she] mishandled Petitioner's motion to suppress." (Id. at 9.)
Claim Five: "Trial counsel was ineffective for failing to file an appeal as instructed by Petitioner." (Id. at 39.)

         The Government has responded, asserting that Johnson's claims lack merit. (ECF No. 75.) Johnson has filed a Reply. (ECF No. 78.) For the reasons stated below, the Court will deny Johnson's § 2255 Motion.


         On June 17, 2014, a grand jury charged Johnson with possession with intent to distribute a mixture and substance containing a detectable amount of cocaine hydrochloride (Count One), and possession of a firearm and ammunition by a convicted felon (Count Two). (Indictment 1-2, ECF No. 11.) The Indictment was based upon an encounter between Johnson and Richmond City police officers on February 19, 2014 (Statement of Facts ¶¶ 2-3, ECF No. 45), during which officers located a loaded handgun and bags containing heroin in Johnson's vehicle, and a bag containing cocaine on Johnson's person. (Pre-Sentence Investigation Report ("PSR") ¶¶ 7-8, ECF No. 62.)

         On July 11, 2014, Johnson, through counsel, Nia Vidal, filed a motion to suppress, arguing that the officers unlawfully stopped and searched Johnson's vehicle and person. (ECF No. 15.) Johnson sought to suppress the items seized during the search, [3] as well as his statements made to the police. (Id. at 1.) The Court held a hearing on that motion on July 30 and 31, 2014. (See ECF Nos. 27, 29.) By Memorandum Opinion and Order entered on October 15, 2014, the Court denied Johnson's motion to suppress. United States v. Johnson, No. 3:14CV80, 2014 WL 5305731, at *12 (E.D. Va. Oct. 15, 2014).

         On November 21, 2014, Johnson entered into a Plea Agreement and pled guilty to Count Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 44.) The Plea Agreement indicated that Johnson faced a maximum penalty of ten years of imprisonment for Count Two. (Id.) In his Plea Agreement, Johnson agreed that he was *satisfied that [his] attorney has rendered effective assistance." (Id. ¶ 3.) Johnson also agreed that he understood that he was waiving his right to appeal "the conviction and any sentence within the statutory maximum ... (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatsoever . . . ." (Id. ¶ 5.) The standard plea colloquy used in this Court confirms that a defendant is satisfied with counsel's services.

         Before sentencing, the Probation Officer concluded that Johnson's total offense level was 25. (Jan. 29, 2015 Pre-Sentence Investigation Report ("PSR") ¶ 24, ECF No. 53.) The total offense level included a base offense level of 24 because Johnson "ha[d] at least two felony convictions of either a crime of violence or a controlled substance offense." (Id. ¶ 15 (citing U.S. Sentencing Guidelines Manual § 2K2.1 (U.S. Sentencing Comm'n 2014)).) With a total offense level of 25 and a Criminal History Category of V, Johnson's Sentencing Guidelines called for 100-120 months of incarceration. (Id. ¶ 85.)

         Subsequently, the Probation Officer concluded that Johnson's correct total offense level was 15, which included a base offense level of 14. (Apr. 24, 2015 PSR ¶¶ 15, 24, ECF No. 62.) In making this determination, the Probation Officer noted that Johnson's prior conviction for Possession of Cocaine with Intent to Distribute was not counted as a predicate offense under § 2K2.1 because it "would not have received points because it was not within the applicable time period pursuant to USSG §§ 4Al.l(c) and 4A1.2(e)." (Id. ¶ 89.) With a total offense level of 15 and a Criminal History Category of V, Johnson's Sentencing Guidelines called for 37-46 months of incarceration. (Id. ¶¶ 84-85.)

         On April 23, 2015, the Government filed a motion for an upward variance "on the ground that the defendant is a recidivist . . . from whose future crimes the public needs protection." (ECF No. 60, at 1.) The Government argued that Johnson's "current offense of armed drug trafficking, on top of his long history for similarly dangerous conduct, including his 2006 commission of a homicide, shows that he presents an unacceptably high risk of recidivism for armed drug trafficking and violence." (Id. (internal citation omitted).) The Government requested "a variance to an Offense Level of 21 and a range of 70 to 87 months." (Id.) Johnson, through counsel, opposed the Government's motion. (ECF No. 63.)

         At the sentencing hearing, the Court granted the Government's motion for an upward variance. (May 7, 2015 Tr. 27, ECF No. 68.) The Court concluded that an upward variance was necessary in order

for the sentence to reflect the seriousness of the offense, to promote respect for the law, to provide punishment that is just to the defendant, to deter him generally and others who are similarly situated, and to protect the public from further crimes of the defendant who has shown an inclination to commit crimes and to commit crimes involving violence and to commit crimes that involve the risk of violence, carrying firearms while involved in the drug trade (May 7, 2015 Tr. 27.)

         The Court sentenced Johnson to 84 months of imprisonment. (J. 2, ECF No. 66.) Johnson did not appeal.


         To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984) . To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the "'strong presumption7 that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689) . The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         In the context of a guilty plea, the Supreme Court has modified this second prong of Strickland to require the convicted defendant to "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985) . Of course, in conducting the foregoing inquiry, the representations of the convicted defendant, his lawyer, and the prosecutor during the plea proceedings, "as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) . In light of the strong presumption of verity that attaches to a petitioner's declarations during his plea proceedings, "in the absence of extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always *palpably incredible' and "patently frivolous or false.'" United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (citations omitted). Thus, the Fourth Circuit has admonished that, "in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements." Id. at 221-22. Nothing in the record permits the Court to consider Johnson's sworn statements at the plea colloquy as other than truthful.

         A. Ineffective Assistance During Sentencing

         In Claim One, Johnson contends that counsel "was ineffective based on her failure to object to this Court's use of Petitioner's juvenile history" at sentencing. (§ 2255 Mot.5.) Johnson argues that "had counsel brought the controlling precedent of [United States v.] Howard[, 773 F.3d 579 (4th Cir.2014)] to this Court's attention precluding the Court's consideration of juvenile crimes, Petitioner would not have been subject to the upward variance based to such a large degree on juvenile conduct." (§ 2255 Mot. 20.) Specifically, Johnson argues that counsel should have objected to the Court's consideration of crimes Johnson committed at age eighteen "as adult crimes." (Id. at 18.) As discussed below, Johnson's claim lacks merit.

         In response, trial counsel Nia Vidal states:

         Mr. Johnson is correct that counsel did not object to the court's consideration of his juvenile history based on the Howard decision. In Howard, the district court considered the defendant as a de facto career offender, reaching this conclusion based in large part on the defendant's juvenile adjudications, and imposed a life sentence when the original guideline range was 120-121 months' imprisonment with a consecutive sentence of 60 months' imprisonment. Id. at 528, 529. The Court noted that most of the defendant's serious convictions occurred when he was a juvenile, while most of his adult criminal history consisted of charges of driving on a suspended license. Id. at 529. The Court also compared the defendant's record to the records of other defendants in previous cases who were appropriately found to be de facto career offenders, who had significant adult criminal records. Id.

         Therefore, it appears that Howard is distinguishable from the facts in Mr. Johnson's case. To the extent that it is not distinguishable, a review of both the entire sentencing transcript as well as the portion of the transcript cited by Mr. Johnson, . . . it is apparent that the district court did not heavily rely on Mr. Johnson's juvenile record in reaching its sentencing determination. As a result, counsel did not object to the court's consideration of this aspect of his history and characteristics.

(Gov't's Resp. Ex. 1 ("Vidal Decl.") ¶ 1, ECF No. 75-1.)

         Counsel did not act deficiently by failing to raise a challenge pursuant to Howard during sentencing. A review of the record shows that this Court did not rely heavily on Johnson's juvenile history when determining his sentence. Instead, the Court stated:

The fact of the matter is, here, the nature and circumstances of the offense and the history and characteristics of the defendant is set out fully in the presentence report to which both sides agree, and it reflects a person with - - who is 33 years old, who has 23 years' worth of criminal history that is atrocious, that has, among other things, resulted in the death of another human being by ...

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