Johnson v. USA
Filing
16
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). The Court denies a certificate of appealability as an appeal would not be taken in good faith. Signed by Judge Vanessa L. Bryant on 02/23/2018. (Shafer, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL JOHNSON,
Plaintiff,
v.
UNITED STATES,
Defendant.
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:
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:
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CIVIL CASE NUMBER
3:14-cv-01619 (VLB)
February 23, 2018
MEMORANDUM OF DECISION DENYING PETITION FOR RELIEF UNDER 28 U.S.C.
§ 2255 [DKT. 1]
Petitioner Michael Johnson (“Johnson” or “Petitioner”) brings this pro se
petition for habeas relief under 28 U.S.C. § 2255, asserting eleven ineffective
assistance of counsel claims against his counsel who represented him for trial
and sentencing. This motion is nearly identical to that filed by the petitioner's codefendant Jermaine Jones. For the foregoing reasons, this Motion to Vacate, Set
Aside, or Correct Sentence, [Dkt. 1], is DENIED.
Background
On April 1, 2010, a grand jury returned an indictment charging Mr. Johnson
and his two co-defendants, Sheikera Williams and Jermaine Jones, with 70
counts of bank fraud in violation of 18 U.S.C. § 1344, one count of conspiracy to
commit bank fraud in violation of 18 U.S.C. § 1349, and three counts of
aggravated identity theft in violation of 18 U.S.C. § 1028A. United States v.
Williams, Case No. 10-cr-00080 (VLB) (hereinafter “Williams”), [Dkt. 1 (Sealed
Indictment)]. At the arraignment on June 29, 2010, Mr. Johnson entered a plea of
not guilty and was appointed David J. Wenc (“Attorney Wenc”) as CJA counsel.
See Williams [Dkt. 16 (Arraignment)]. On May 5, 2011, Johnson moved for
1
appointment of substitute counsel to replace Attorney Wenc, stating he and
Attorney Wenc were on “different pages” regarding what motions and evidentiary
hearings were appropriate. Williams [Dkt. 55.] The Court held a hearing on May
13, 2011, granted the motion for Attorney Wenc to withdraw as counsel, and
appointed substitute CJA counsel. Williams [Dkt. 58.] On May 17, 2011, Attorney
Michael Gerard Dolan (“Attorney Dolan”) appeared as CJA counsel. Williams
[Dkt. 60.]
Co-defendant Williams pleaded guilty on October 3, 2011. Williams [Dkt.
No. 104 (Change of Plea Hearing)]. A Superseding Indictment was issued on
October 11, 2011, which decreased the total counts and instead included seven
counts of bank fraud, one count of conspiracy to commit bank fraud, and seven
counts of aggravated identity theft, all in violation of the same statutes as
previously stated. Williams [Dkt. No. 115 (Superseding Indictment)]. After
several continuances, the trial was ultimately scheduled for November 2011.
Williams [Dkts. 157-162.]
The trial began on November 2, 2011 and the jury rendered its verdict on
November 17, 2011: guilty on all counts. Williams [Dkt. No. 180 (Jury Verdict)].
Mr. Johnson was sentenced on May 30, 2012 and received 240 months’
imprisonment on the bank fraud and conspiracy counts to run concurrently; 24
months’ imprisonment on the aggravated identity theft counts to run concurrently
to each other but consecutively to the 240 months; 60 months’ supervised
release on the bank fraud and conspiracy counts to run concurrently; 12 months’
supervised release on the aggravated identity theft counts to run concurrently; a
2
special assessment of $1,500.00; and $237.930.00. See Williams [Dkt. No. 244
(Judgment)].
By and through Attorney Dolan, Mr. Johnson appealed his sentence.
Williams [Dkt. No. 251 (Notice of Appeal)]. The Second Circuit affirmed the
sentence in a summary order issued on February 26, 2014. Williams [Dkt. No. 291
(Mandate)]. The Second Circuit upheld his sentence and found that this Court did
not err in (1) calculating the loss amount pursuant to § 2B1.1(b)(1), (2) applying a
two-level enhancement for “sophisticated means” under § 2B1.1(b)(10), and (3)
applying a four-level enhancement for 50 fifty or more victims pursuant to §
2B1.1(b)(2)(B). See id. at 6-7. Thereafter, Mr. Johnson timely filed this habeas
petition before the Court. 18 U.S.C. § 2255(f) (setting a one-year limitations period
from the date the judgment of conviction becomes final); [Dkt. 1 (Motion to Vacate
filed October 30, 2014).]
Legal Standard
Section 2255 enables a prisoner in federal custody to petition a federal
court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Relief
under Section 2255 is generally available “only for a constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or fact that constitutes a
fundamental defect which inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotation
marks and citation omitted). Section 2255 provides that a district court should
grant a hearing “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
3
Claims for ineffective assistance of counsel are analyzed under the two
part test established in Strickland v. Washington, 466 U.S. 668 (1984). To prevail,
a movant must both allege facts demonstrating that “counsel’s representation fell
below an objective standard of reasonableness” and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 687–88, 694. As to the first
showing, a movant must demonstrate that counsel’s performance “amounted to
incompetence under ‘prevailing professional norms’” rather than demonstrating
that the performance “deviated from best practices or most common custom.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).
As to the second showing, a movant must demonstrate “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Analysis
Mr. Johnson brings 11 ineffective assistance of counsel claims which
dispute instances that occurred during both trial and sentencing. The Court
addresses each claim in turn.
I.
Failure to Raise a Batson Challenge
Mr. Johnson claims the jury pool included approximately five African
Americans and the Government used its peremptory challenges to strike all but
one of these individuals. Motion at 8. The use of peremptory challenges, Mr.
Johnson contends, was done “in a systematic racial[ly] mot[i]vated manner to
[e]nsure that neither one of the African-American prospective jurors were actually
seated on the jury.” Id. As a result, the jury was comprised entirely of white
4
people, and Mr. Johnson argues counsel acted deficiently in failing to object to
the jury composition “[i]n light of the [G]overnment’s theory of the case, that
Movant sought out, and only used, white females to commit the crimes for which
he was on trial.” Id.
The Government disputes the validity of Mr. Johnson’s Batson challenge
for the primary reason that he fails to establish a prima facie case of purposeful
discrimination. [Dkt. 15 (Opposition) at 11-12]. The Government points out that
Mr. Johnson does not cite the transcript or another document identifying the
demographics of the venire or the Government’s peremptory strikes. Id. at 12.
Even if he were to satisfy the prima facie case, the Government contends he
nonetheless fails to establish prejudice. Id. at 12.
Batson v. Kentucky, 476 U.S. 79 (1986) created a three-step procedure for
courts to determine “whether a peremptory strike has been exercised in a racially
discriminatory manner.” United States v. Diaz, 176 F.3d 52, 76 (1999). First, a
court must determine whether the petitioner makes out “a prima facie showing
that the prosecution has exercised its peremptory strike on the basis of race.” Id.
If defendant satisfies the first step, the court must then evaluate “whether the
government has satisfied its burden of coming forward with a race-neutral
explanation for striking the juror in question.” Id. If so, the court evaluates
“whether the defendant has carried his burden of persuasion of proving
purposeful discrimination.” Id.
There are several ways in which a petitioner can make a prima facie
showing of racial discrimination. A court should consider “how many members
5
of the cognizable racial group are in the venire panel from which the petit jury is
chosen, the pattern of strikes against racial group jurors in the particular venire,
the prosecutor’s statements and questions during selection, as well as any other
relevant circumstances.” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998)
(addressing prima facie showing in the Powers context). “When the asserted
prima facie case is based upon the use of strikes to exclude all or nearly all of the
members of a particular racial group, the record need only include how many
members of that group were in the venire, and how many of those were struck.”
Jones v. West, 555 F.3d 90, 99 (2d Cir. 2009).
Mr. Johnson has not provided the Court with any evidence supporting his
claim. Nonetheless, the Court independently assessed the venire documents
kept by the Clerk. The jury pool contained only two individuals who identified as
African American. The first person was randomly assigned pool number 39, and
the Court, not the Government, struck him for cause. The second person was
randomly assigned pool number 64, and she was chosen as the third alternate. It
is worth noting the twelfth juror was assigned pool number 49, and therefore the
random nature of the jury selection process essentially made it impossible for the
alternate to have been picked as a juror given she was questioned 15 people
later. The Court also notes the Government used peremptory challenges on eight
people, seven who were listed as White and one who was listed as Other. One
chosen juror was also listed as Other. The objective evidence does not support a
finding that the Government’s actions were racially motivated or that Attorney
Dolan acted below an objective standard of reasonableness in failing to object to
6
petit jurors having been stricken. Neither Mr. Johnson nor the record offer any
factual support for this claim and therefore a hearing is not warranted. See
Strickland, 466 U.S. at 687-88.
II.
Failure to Object to Discovery
Mr. Johnson claims the Government withheld exculpatory evidence as
demonstrated by the changes in the Superseding Indictment, which reduced the
number of Defendants from three to two and the number of bank fraud counts
from 74 to seven. Motion at 12-13. Specifically, Mr. Johnson believes the
Government withheld all discovery pertaining to Counts 9, 11, 13 and 15 of the
Superseding Indictment. Id. at 13. The Government maintains that it “provided
early and fulsome discovery in this case, beginning in July 2010,” and that Mr.
Johnson’s characterization demonstrates a misunderstanding of the discovery
process rather than any potential misconduct. Opposition at 13-14.
In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court
established the requirement to disclose all evidence that could be considered
exculpatory or bearing on a defendant’s innocence or guilt. The Government’s
obligations under Brady are well-established. The prosecution has a
constitutional duty to disclose evidence favorable to an accused when such
evidence is material to guilt or punishment. Id. at 87. This duty covers not only
exculpatory evidence, but also information that could be used to impeach a key
government witness. See Giglio v. United States, 405 U.S. 150, 154 (1972). Brady
does not, however, require the prosecution to disclose all exculpatory and
impeachment evidence; it need disclose only that, which “if suppressed, would
7
deprive the defendant of a fair trial.” United States v. Bagley, 473 U.S. 667, 675
(1985). In the context of Brady, a defendant is deprived of a fair trial only where
there is a reasonable probability that the government’s suppression affected the
outcome of the case, see id. at 682, or where the suppressed evidence “could
reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict,” Kyles v. Whitley, 514 U.S. 419, 435 (1995).
Mr. Johnson has failed to identify any evidence withheld by the
Government, much less any evidence that would have changed the outcome of
the trial and the withholding of which thus deprived him of a fair trial. It appears
as if the evidence Mr. Johnson challenges was not even “favorable to the
accused” as his position is the Government “failed to disclose any discovery
whatsoever to support its inclusion of Counts 9, 11, 13, and 15 of the
Superseding Indictment.” Motion at 13. The Government avers that it timely
disclosed all discovery beginning in June 2010, which relate to the Superseding
Indictment filed October 2011. Opposition at 13. The filing of a Superseding
Indictment, which reduced the total number of counts and adjusted the nature of
the counts, does not inherently mean discovery was withheld. Mr. Johnson has
not met his burden to establish deficient performance because he has not alleged
any facts demonstrating how the absence of an objection on these grounds
means counsel’s performance fell below an objective standard of
reasonableness. See Strickland, 466 U.S. at 687–88; Lewis v. Feliciano, No.
3:09cv20171 (DJS), 2012 WL 1247264, at *9 (D. Conn. Apr. 13, 2014) (stating that
“[a]bsent any indication as to what the witnesses would have stated or what the
8
evidence would have shown, Lewis failed to meet [his] burden” of demonstrating
deficient performance on Brady grounds). Therefore, the Court need not address
the prejudice prong.
III.
Failure to File Motion to Sever
Mr. Johnson criticizes defense counsel’s failure to sever his case from that
of his co-defendant, Michael Jones. Attorney Dolan filed a motion to sever on
September 1, 2011, which asserted that co-defendant Williams intended to argue
that Johnson coerced Williams to participate in the criminal conduct. Williams
[Dkt. 98.] Attorney Dolan argued Williams’ defense would prejudice Johnson and
accordingly Johnson’s trial must be severed from Williams’. Id. Because
Williams ultimately pleaded guilty, the Court found the motion to sever moot.
Williams [Dkt. 113.] Johnson asserts “it was unreasonable for counsel to have
proceeded to cause the court to moot the motion for severance” because it was
“based on facts whereby relief could have been granted.” Motion at 14. The
Government notes Attorney Dolan’s motion to sever from Williams and the
Court’s subsequent mooting of that issue, and also asserts that there was no
basis to sever Johnson’s case from co-defendant Jones’. Opposition at 15. The
Government notes that the critical question for severance is whether a joint trial
prejudiced the movant and Mr. Johnson failed to identify any basis for a finding
of prejudice. Opposition at 16.
Rule 14 of the Federal Rules of Criminal Procedure provides that “[i]f the
joinder of offenses or defendants in an indictment . . . appears to prejudice a
defendant or the government, the court may order separate trials of counts, sever
9
the defendants’ trials, or provide any other relief that justice requires.” Fed. R.
Crim. P. 14(a). There is a clear preference for a joint trial where “the defendants
are alleged to have participated in a common plan or scheme.” United States v.
Fazio, 770 F.3d 160, 166 (2d Cir. 2014) (citing United States v. Salameh, 152 F. 3d
88, 115 (2d Cir. 1998)). A court is to sever defendants “only if there is a serious
risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” United States v. Astra Motor Cars, 352 F. Supp. 2d 367, 369-70
(E.D.N.Y. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). Such a
determination is left to the sound discretion of the court. Zafiro v. United States,
506 U.S. at 539.
Mr. Johnson has not presented the Court with any evidence that he was
denied a fair trial. After reviewing the trial transcripts, the Court finds that
Defendants participated in a “common scheme or plan,” Fazio, 770 F.3d at 166.
Paragraph 12 of the Presentence Report was replete with summaries of the
testimony introduced at trial establishing their conspiratorial conduct. Counsel
did not act unreasonably when he did not move for reconsideration of the Court’s
finding that the motion to sever was mooted by Williams’ change of plea, nor did
counsel act unreasonably by failing to move to sever from co-defendant Jones.
Attorney Dolan did not act unreasonably in light of the facts of the case, his
understanding of prevailing case law, and the unlikelihood that a motion to
reconsider the motion to sever from Williams, or a motion to sever from Jones,
would have been granted. See id.
10
IV.
Failure to Sequester Special Agent Mahar
Mr. Johnson believes defense counsel was ineffective in failing to demand
Special Agent Ryan Mahar be sequestered from the trial. Motion at 15. He argues
Agent Mahar participated in the investigation and “[p]rejudice resulted when the
agent controlled the flow of evidence for the prosecution, in such a manner so as
to actually prosecute the case, thus denying Movant of a fair trial.” Id. The
Government does not dispute Agent Mahar’s presence during trial but contends
that such presence is permitted by the Federal Rules of Evidence and case law.
Opposition at 17.
Rule 615 of the Federal Rules of Evidence requires a court to sequester a
witness upon a party’s request or on its own “so that they cannot hear other
witnesses’ testimony.” One exception to this rule applies where “an officer or
employee of a party that is not a natural person [is] designated as the party’s
representative by its attorney.” Fed. R. Evid. 615(b). In keeping with this rule, a
“district court has discretion to exempt the government’s chief investigative
agent from sequestration, and it is well settled that such an exemption is proper
under Rule 615[b], deeming the agent–witness a ‘representative’ of the
government.” United States v. Lee, 834 F.3d 145, 162 (2d Cir. 2016) (internal
quotation marks and citations omitted); see Griffith v. United States, No. 03 Civ.
7860(HB), 03 Civ. 7861(HB), 2005 WL 245071, at *6 (S.D.N.Y. Oct. 6, 2005) (“In light
of such well-settled precedent [establishing the court’s discretion] it is
reasonable for the Griffiths’ counsel not to have objected to the agent’s presence
in the courtroom.”). Therefore, defense counsel was not deficient for failing to
11
request sequestration because Agent Mahar would have fit within the ambit of the
Rule 615(b) exception. See United States v. Lott, 365 F. App’x 946, 950 (10th Cir.
2010) (ruling defense counsel’s failure to seek sequestration of government’s
case agent did not constitute ineffective assistance of counsel because the
witness would have fallen within a Rule 615 exception). Mr. Johnson fails to
provide a legal or factual basis that warrants a finding of deficiency or prejudice.
V.
Failure to Object to Special Agent’s Expert Testimony and the Lack of
Foundation
Mr. Johnson bases this next ineffective assistance of counsel claim on
defense counsel’s failure to object to the foundation laid for Agent Mahar to
testify as an expert and his subsequent testimony. Motion at 17. Agent Mahar’s
classification as an expert and associated testimony purportedly “served no
purpose but to bolster the credibility of the witnesses whose credibility is/was
questionable at best.” Id. at 18. The Government argues that it laid a proper
foundation for Agent Mahar’s testimony as an expert and that his testimony in
multiple capacities was permissible. Opposition at 18.
With respect to the foundation issue, the Government established that
Agent Mahar holds a Bachelor’s degree from the University of Nashville,
Tennessee and that he became a forensic examiner for the United States Secret
Service in 2006. [Dkt. 267 (Tr. 11/14/11) at 225:17-226:2]. He received
approximately 140 hours of special training in cell phone forensics, which has
taught him how to recover digital evidence from various devices. Id. at 226:3-11.
In total, he has analyzed over 50 cell phones. Id. at 226:12-14. He had previously
been qualified as an expert in cell phone forensics in Connecticut state court. Id.
12
at 226:21-25. After discussing the nature of the expert testimony at side bar,
neither defense counsel for Mr. Johnson nor defense counsel for Mr. Jones
objected to his determination as expert. See id. at 227:3-20. Mr. Johnson has not
brought forth any factual evidence or a legal basis indicating the Agent Mahar is
not “qualified as an expert by knowledge, skill, experience, training or education.
. . .” Fed. R. Evid. 702. The Court finds the Government sufficiently laid a
foundation for Agent Mahar to testify as an expert and that Attorney Dolan’s
performance did not fall below prevailing professional norms in abstaining from
objection. See Harrington, 562 U.S. at 105.
Mr. Johnson’s contention that his qualification as an expert bolstered his
lay witness testimony requires a closer analysis, but ultimately it does not
prevail. In certain circumstances, a case agent’s testimony as an expert carries
some risks of juror confusion, see Fed. R. Evid. 403, because “[s]ome jurors will
find it difficult to discern whether the witness is relying properly on his general
experience and reliable methodology, or improperly on what he has learned of the
case.” United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003). Accordingly,
there exists a risk that a case agent testifying about both an expert opinion and
the facts of the case “may easily elide these two aspects of their testimony.” Id.
at 55-56. Indeed, “[g]iven their role, their perspective, and their focus on the
facts, these case agent experts are more likely to stray from the scope of their
expertise and to testify about other aspects of the case, including the divulging of
hearsay evidence.” Id. at 55-56.
13
Here, the potential for juror confusion was minimal because the
Government questioned Agent Mahar on a very narrow set of issues; he testified
almost exclusively to the summarization of certified records and the content of
documents that were submitted into evidence. See generally [Dkt. 267 at 206:15242:11; Dkt. 268 at 6:11-24:24]. Agent Mahar did not provide hearsay evidence or
stray from the scope of his expertise. Id. Mr. Johnson fails to demonstrate how
counsel’s failure to object would be deficient, let alone prejudicial, to his case.
VI.
Failure to Object to Evidence at Trial
Mr. Johnson lists in four groups several exhibits that were introduced
without objection and contends that the failure to object constituted ineffective
assistance of counsel. Motion at 18. He does not identify the objections that
could have been made or establish why the failure to object would have been
deficient.
First, Mr. Johnson argues Attorney Dolan was ineffective for allowing the
Government’s Exhibit 301 to be admitted and to subsequently be amended. See
[Dkt. 1-1 at 18]. This exhibit is a summary chart of Exhibits 1-100 and was
admissible pursuant to Fed. R. Evid. 1006, which enables a proponent to “use a
summary, chart, or calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently examined in court.”
Because the Court admitted the documents pursuant to Fed. R. Evid. 1006, see
[Dkt. 260 (Tr. 11/2/11) at 3:7-23], and the underlying documents were admitted as
exhibits as well, Mr. Johnson has not shown how, if at all, the summary charts
failed to reflect accurately the underlying exhibits. Consequently, he has failed to
14
show how Attorney Dolan acted below his objective standard of reasonableness
in failing to object to the introduction of unobjectionable exhibits which merely
summarized voluminous admissible exhibits. See Strickland, 466 U.S. at 687-88.
There is no basis for the Court to conclude that Attorney Dolan performed
deficiently by allowing the summary chart to be amended as trial continued. The
revisions certainly did not amount to anything serious enough to undermine the
outcome of trial. See Strickland, 466 U.S. at 964.
Second, Mr. Johnson contends that Exhibits 23-A-1, 23-B-1, 24-A-1, 24-B-1,
25-A-1, 25-B-1, 26-B-1, 27-A-1, and 27-B-1 should not have been introduced as
they were notes referred to by witness Marie Martin. See [Dkt. 1-1 at 18]. At the
beginning of the direct examination, the Government handed Ms. Martin a binder
of Exhibits 23 through 28, see [Dkt. 261 (Tr. 11/3/11) at 38:2-10], and the record
reflects these exhibits were copies of checks, not notes, see id. at 38:2-40:19]. In
addition, Ms. Martin brought copies of returned checks “along with the reason . . .
that it was returned . . . from a second bank.” See [Dkt. 261 at 46:4-13]. Ms.
Martin testified that the check “is the same as . . . the original check when it was
negotiated” but “[i]t’s before we knew it was going to return.” Id. She also
testified, “When it’s returned it looks the same but they just put a return reason.”
Id. These documents were admitted under the business records exception as
the Government established they were version of other exhibits created by the
employee with knowledge near the time of the transaction, they were kept in the
ordinary course of business, and they were made as a regular practice of that
activity. See Fed. R. Evid. 803(6)(A)-(C); see [Dkt. 261 at 38:3-65:1; 47:15-48-14].
15
The fact that there is a stated reason for the return does not mean the documents
were not admissible. The record indicates defense counsel possessed these
documents prior to the trial, and defense counsel’s copies were submitted into
evidence. Id. at 49:18-50:7. Attorney Dolan did not act deficiently because these
documents were admissible.1
Third, Mr. Johnson challenges Attorney Dolan’s stipulation to Exhibits
140A-C and 154A-C. See [Dkt. 1-1 at 19]. Witness Susan McGregor testified that
Exhibits 140A-C were her driver’s license, debit card, and a check made out in her
name. See [Dkt. 264 (Tr. 11/8/11) at 54:3-24]. Witness Mary Willingham testified
that Exhibits 154A-C were her driver’s license, credit card, and military
identification. See id. at 48:21-49:9]. The parties stipulated to the admissibility of
Exhibits 140A-C and 154A-C, which were “similar to exhibits previously stipulated
for admission as full exhibits.” Id. at 56:12-23. Regardless, these documents
were relevant, authenticated by their owners in a manner sufficient to support a
finding that each was what its proponent claimed it was and were thus
admissible. See Fed. R. Evid. §§ 401, 402 and 901(a).
Further, Federal Rule of Civil Procedure 11 precludes an attorney from making
specious objections.
Specifically, that rule states:
By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later advocating it—
an attorney or unrepresented party certifies that to the best of the
person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
1
Mr. Johnson also fails to direct the Court to the Avis Budget sheet substitutions
to which he objects. The Court will not address his reference to this claim,
without more.
16
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing
new law;
Fed R. Civ. Pl 11(b)(1)-(2). Jones fails to offer any factual or legal basis to
challenge the admissibility of these documents. Having no basis to challenge the
documents, Attorney Dolan acted as a reasonable attorney in stipulating to the
admission.
Fourth, Mr. Johnson claims that Exhibits 14, 23, 52, and 96 should not have
been admitted because they supported Counts 9, 11, 13, and 15 and had never
been disclosed to him prior to trial. See [Dkt. 1-1 at 19]. These exhibits were
checks submitted into evidence, which were also featured in the summary chart.
Attorney Dolan did not perform below an objective standard of reasonableness
for the same reasons as the above exhibits pertaining to Ms. Martin’s testimony.
See Dkt. 260 at 61:9-62:14 (admitting Exhibit 96 as a business record); Dkt. 261 at
38:3-40:14, 67:1-69:20, 127:24-129:19 (admitting Exhibits 14, 23, and 52 as a
business record)]. Assuming Mr. Johnson did not have the opportunity to review
these documents prior to trial, these checks were just four of the 100 checks
submitted into evidence and would not have “undermine[d] confidence in the
outcome.” See Strickland, 466 U.S. at 694. Accordingly, this ineffective
assistance of counsel claim fails.
VII.
Failure to Advise of Right to Testify
17
It is Mr. Johnson’s position that Attorney Dolan failed to advise him of his
right to testify. Motion at 19-21. Specifically, Mr. Johnson claims that “counsel
knew [he] wanted to testify and tell his side of the story regarding the offense”
and that “counsel knew that Movant only proceeded to a jury trial whereas he
could testify regarding loss amounts attributed to him. . . .” Id. at 20. The
Government objects to Mr. Johnson’s claim on two key bases: (1) Attorney
Dolan’s affidavit, which conflicts with Mr. Johnson’s affidavit, demonstrates that
Attorney Dolan advised Mr. Johnson about his right to choose to testify; and (2)
Mr. Johnson cannot show prejudice because he only wanted to testify to the loss
amount and the Government would have questioned him on his lengthy criminal
record, which undoubtedly would have seriously undermined his credibility and
thus been damaging to his case. Opposition at 23-24; [Dkt. 15-1 (Dolan Affidavit)
at ¶ 8].
It is well-settled that a criminal defendant “has the right to take the witness
stand and to testify in his or her own defense.” Bennett v. United States, 663 F.3d
71, 84 (2d Cir. 2011) (quoting Rock v. Arkansas, 483 U.S. 44, 49 (1987)). The
decision to testify is solely for the defendant to make, and defense counsel is
tasked with the responsibility to “advis[e] the defendant of his right to testify or
not to testify.” Id. Included in counsel’s duty is to “advise the defendant about
the benefits and hazards of testifying and not testifying,” and although counsel is
permitted to “strongly advise the course that counsel thinks best” he must leave
the ultimate decision to the defendant. Id.
18
Attorney Dolan submitted an affidavit indicating he believes Mr. Johnson
should not testify due in part because of his extensive criminal history. Dolan
Affidavit at ¶ 8. Attorney Dolan averred that Mr. Johnson ultimately decided “not
to testify.” Id. at ¶ 9. This affidavit directly conflicts with Mr. Johnson’s
declaration wherein he claims Attorney Dolan prevented him from testifying even
though Attorney Dolan knew he wanted to testify. [Dkt. 9 (Johnson Affidavit) at ¶
21].
With respect to Strickland’s deficiency prong, the Second Circuit has
upheld a district court’s denial of a hearing when the only evidence supporting
counsel’s failure to provide the right to testify was the Mr. Johnson’s “own
blanket statements” that he was prevented from testifying. See Chang v. United
States, 250 F.3d 79, 84-85 (2d Cir. 2001). In Chang, however, the trial counsel
supplemented the record with a “detailed affidavit . . . credibly describing the
circumstances concerning appellant’s failure to testify.” See id. at 85. Here,
Attorney Dolan’s affidavit falls short of being sufficiently detailed on this issue.
As a general matter, where a claim involves “off-the-record interactions” with trial
counsel, it “cannot be determined by examining the motion, files, and records
before the district court.” Id. at 85. The Court thus assumes without deciding
only for the purposes of this analysis that his performance was deficient.
The Court nonetheless determines a hearing is not warranted because Mr.
Johnson fails to properly address the prejudice prong under Strickland. As Mr.
Johnson himself avers in his brief, counsel knew he proceeded to trial so “he
could testify regarding loss amounts attributed to him, as he never denied any
19
involvement in the offense.” Motion at 20-21. Mr. Johnson does not provide the
Court with any other content to which he would have testified, and accordingly
the Court cannot conclude there is a reasonable probability the verdict would
have been different. See generally Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997)
(assessing petitioner’s proposed testimony and ruling that he would not have
been able to satisfy all elements of a justification defense, thereby failing to
establish prejudice); Perez v. United States, No. 3:09cv30 (JBA), 2012 WL
1067549, at *5 (D. Conn. Mar. 30, 2012) (“Without offering any explanation as to
what he would have testified about, or how that could have possibly changed the
outcome of his trial, Petitioner cannot demonstrate that but for Attorney Reeve's
alleged advice about his testifying, there is a reasonable probability that the
outcome of the trial would have been different.”). Therefore, the Court will not
order a hearing or find Attorney Dolan’s representation was constitutionally
ineffective on this ground.
VIII.
Failure to Seek Two-Level Departure for Acceptance of Responsibility
Johnson asserts Attorney Dolan was deficient because he did not seek a
two-level downward adjustment for acceptance of responsibility in the sentencing
memorandum. Williams [Dkt. 233.] However, Mr. Johnson has not established in
what way counsel’s performance is deficient for recognizing the fact that Mr.
Johnson did not qualify for the acceptance of responsibility adjustment.
Comment Two to the applicable Sentencing Guideline states the acceptance of
responsibility adjustment “is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential factual
20
elements of guilt, is convicted, and only then admits guilt and expresses
remorse.” U.S.S.G. § 3E1.1, cmt. 2 (2011). The Commission identified only rare
circumstances for awarding an acceptance of responsibility adjustment despite a
defendant’s exercise of his right to a jury trial, included which are attempts to
“assert and preserve issues that do not relate to factual guilt (e.g., to make a
constitutional challenge to a statute or a challenge to the applicability of a statute
to his conduct).” Id. Such a determination is to be based on “pretrial statements
and conduct.” Id. Mr. Johnson may have admitted his culpable conduct to his
counsel, but the fact remains that he proceeded to trial leaving the Government to
its burden of proof. He did not exercise his right to trial solely to preserve issues
unrelated to factual guilt and therefore he cannot establish counsel’s
performance was deficient.
In addition, at sentencing most attorneys seek to cast their clients in a
favorable light; as contrite and remorseful rather than argumentative and
disrespectful of the law. Recognizing a clear and unambiguous provision of the
sentencing guidelines rather than making a specious argument for an adjustment
for which a client is clearly not entitled is a strategy to cast a client in the most
favorable light possible in order to best assure a more lenient sentence. A
reasonable strategic decision cannot form the basis or an ineffective assistance
claim. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987); United
States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (applying the trial strategy
principle to a § 2255 motion). Strategic trial decisions, “if reasonably made, will
21
not constitute a basis for an ineffective assistance claim.” Nersesian, 824 F.2d at
1321.
Moreover, the sentencing transcript makes clear that Mr. Dolan did not
forego making an available argument that Mr. Johnson took responsibility for his
personal conduct as he understood it. Williams [Dkt. 280.] Rather, Johnson
made clear in his statement at sentencing that he had not accepted responsibility.
Id. Mr. Johnson stated: “What I did was wrong, but at that particular time, you
know, I thought that, you know, I really wasn’t doing anything wrong, but I accept
my responsibility, you know, for what I did.” Id. at 36. The Court replied, “How
can you say you didn’t think you were doing anything wrong when you were
breaking people’s property?” Id. at 37. Mr. Johnson began to answer, Attorney
Dolan requested a moment to speak with Mr. Johnson, and after they conferred
Mr. Johnson again began to speak. Id. “Well, Your Honor, my attorney just
advice, but I’m gonna tell you anyway. Your Honor, I never broken into nobody’s
car. Now, my role involved in this, yes, I rented cars for Sheikera, and I didn’t
think, you know, by me renting a car, that I was actually involved in a situation,
but I realized though, I am. I’m just as irresponsible as them, . . . I apologize and
I’m remorseful for what I did, and for what they did, too, because we all in the
same boat under this conspiracy. What, you know, all the facts, Your Honor,
there – those are not the facts so, you know, I just think as a man and take what I
did, and whatever they did too because, you know, I guess that’s the noble thing
to do.” Id. at 37-38. The Court replied, “You never broke into a car?” Id. at 38.
Johnson answered, “Never.” Id. at 38. The Court responded, “What was your
22
wallet doing beside the car here in Bloomfield, Connecticut?” Id. Johnson
responded, “See, that situation, it was Deneen, this is . . . Deneen and Sheikera
out and about doing the thing. I wasn’t even with them. . . . I can’t sit here and lie,
Your Honor, and say I didn’t know what they was doing, but I actually didn’t know
what they was doing. . . . but I do admit my part. I rented cars. . . . ” Id. at 38, 40.
The Court responded, “So the cashers who sat here on that witness stand, swore
an oath . . . and testified that you recruited them were lying?” Id. at 40-41.
Johnson responded, “Yes, Your Honor.” Id. at 41.
The Court did not adjust Johnson’s sentence downward for acceptance of
responsibility, but rather noted that under the Section 3553 factors, the “Court
must promote respect for the law, and Mr. Johnson’s statement here today, that
he didn’t know he was doing anything wrong, speaks volumes to the need for this
sentence to engender in him, a respect for the law. How anyone could think that
breaking into other people’s property, damaging their property, stealing their
property, stealing from banks, getting arrested, watching your co-conspirators
get arrested is not indicative of your doing something wrong is just beyond my
comprehension.” Id. at 56-57. Mr. Johnson’s statement at sentencing and the
Court’s Section 3553 findings on the record make clear that Attorney Dolan was
not deficient for failing to argue for a downward adjustment for acceptance of
responsibility. Mr. Johnson cannot show that Mr. Dolan’s failure to argue against
the obvious altered the outcome of his case.
IX.
Failure to Challenge the Judgment
23
Mr. Johnson claims that during sentencing, the Court imposed a term of
supervised release of five years and no restitution. Motion at 28. However, Mr.
Johnson asserts the written judgment provides for a term of supervised release
of six years as well as restitution. Id. Mr. Johnson asserts Attorney Dolan erred
in failing to investigate or appeal this discrepancy. Id.
At sentencing, the Court imposed a “total effective period of supervised
release of five years, that’s five years for each of Counts One through Eight, and
one year for Counts Nine through Fifteen, concurrent to each other and to One
through Eight.” Williams [Dkt. 280 at 65.] The judgment accordingly states
“Upon release from imprisonment, the defendant shall be on supervised release
on Counts One through Seven for 60 months concurrently; on Count Eight for 60
months concurrent to the supervised release imposed for Counts One through
Seven; and on Counts Nine through Fifteen for 12 months concurrent to each
other.” Williams [Dkt. 244 at 1.] There is no discrepancy between the Court’s
statement at sentencing and the written judgment: both impose a period of
supervised release of five years.
The Court also ordered restitution in the amount of the total actual loss
caused by the criminal conduct, $273,930. Williams [Dkt. 280 at 67-68.] That
same amount of restitution is reflected in the written judgment. Williams [Dkt.
244 at 2.] Johnson was in the courtroom when the Court imposed his sentence,
including the period of supervised release and restitution, as evidenced by his
statements on the record both before and after the sentence was imposed.
Williams [Dkt. 280 at 65 (showing that the Court asked Mr. Johnson to stand to
24
receive his sentence), 69 (showing the following interaction after the Court
imposed the sentence: “The Court: Now, Mr. Johnson? The Defendant: Yes,
ma’am?” whereupon the Court advised Johnson of his right to appeal).] There is
no reason to believe, in light of the Court’s direction, that Johnson was not
present to receive either challenged aspect of his sentence. There is no
discrepancy between the sentence imposed orally by the Court and that written in
the judgment. Attorney Dolan did not act below the objective standard of
reasonableness in failing to challenge the judgment as inconsistent with the oral
sentence.
X.
Failure to Seek a Lower Sentence
Mr. Johnson claims Attorney Dolan should have sought the same term of
imprisonment which was imposed on his co-defendant, Mr. Jones. Motion at 30.
Mr. Jones received a sentence of 240 months’ imprisonment, 24 months lower
than Mr. Johnson’s sentence. Williams [Dkt. 245 (Jones Judgment).] Mr.
Johnson asserts Attorney Dolan should have argued for the same sentence Mr.
Jones received because they were both prosecuted together. Motion at 30. Mr.
Johnson presents no legal authority to support this claim. Id.
While a sentencing court must consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been
found guilty of similar conduct,” the court is not required to “consider disparities
between co-defendants.” United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008)
(citing 18 U.S.C. § 3553(a)(6); Kimbrough v. United States, 128 S. Ct. 558, 574
(2007)). Where co-defendants are differently situated, different sentences are
25
reasonable. Id.; United States v. Chervin, 553 F. App’x 63, 64 (2d Cir. 2014)
(finding different sentences for co-defendants appropriate where the defendant
challenging his sentence failed to show that he was similarly situated with his codefendants). Where a court explains that it is sentencing one defendant to a
longer term of imprisonment than his co-defendants due to, for example, that
defendant’s prominent role in the criminal scheme, the sentencing disparity is
reasonable under Section 3553(a). United States v. Guglielmo, 307 F. App’x 575,
577 (2d Cir. 2009) (upholding a sentence where the “district court fully explained
the reasons why it imposed the sentence in this case, including that, unlike his
co-defendants, Guglielmo had been convicted of another offense . . . [and] in light
of Guglielmo’s prominent role in the fraudulent scheme”).
Here, the Court clearly explained the basis for Mr. Johnson’s increased
sentence. Williams [Dkt. 280 at 55.] The court noted its consideration the
evidence introduced at trial and summarized in paragraph twelve of the
Presentence Report which established the centrality of Mr. Johnson' role in the
conspiracy to commit bank fraud. The evidence established that he not only
recruited and managed most of the check cashers who testified, but he also,
along with Mr. Jones, broke into cars and stole the tools of the bank fraud
scheme, without which it could not have occurred. PSR ¶12. The testimony also
established that while Williams was in jail, Johnson continued the scheme in her
absence. See, Id. One such occasion was in May of 2008 when Mr. Johnson was
charged along with two passengers with Fraudulent Use or Possession of
Identifying Information after law enforcement officers stopped his vehicle and
26
located multiple state identification cards, driver licenses, credit cards, debit
cards, and personal checks belonging to females who were victims of burglaries
in Texas, Florida, and Georgia. There was no evidence that Jones ever led the
conspiracy alone.
At sentencing, the Court explicitly considered “the relative involvement” of
the participants in the conspiracy, and found that “Mr. Johnson’s role in this
conspiracy was greater than that of Mr. Jones.” Id. at 58. The Court found
Johnson had a leadership role in the scheme as he “recruited and supervised
cashers, . . . forced Deneed Johnson out of a car and out of a hotel room, as
evidence of his leadership role.” Id. In addition, the Court explained that Mr.
Johnson was “the originator. I certainly agree that it is altogether likely that
Sheikera Williams took your scheme to another level, but together, together you
conceived this scheme. Together you led this scheme. Together you managed
this scheme, and you individually drove on forays to engage in this scheme
without Sheikera Williams.” Id. at 58.
Attorney Dolan did argue for a lesser sentence, based on an alternative
calculation of the loss amount, an argument that the crimes did not involve a
sophisticated means, and an argument that Johnson was not a leader in the
conspiracy. Williams [Dkt. 233 (Sentencing Memo) at 3-4.] The Court considered
and ultimately rejected these arguments at sentencing. The law and the evidence
in this case would not have supported an argument that Mr. Johnson should
receive an identical sentence to Mr. Jones for the reason the Court articulated at
sentencing: the co-defendants were not similarly situated as Mr. Johnson had
27
greater involvement in managing the criminal scheme. Mr. Johnson has not
shown why Attorney Dolan was deficient for failing to raise a meritless argument.
Nor can Mr. Johnson assert any prejudice from the failure to raise that argument,
as the Court explicitly determined that identical sentences were inappropriate in
this case and explained its reasoning on the record at sentencing . Williams [Dkt.
280 at 57-58.]
XI.
Failure to Impeach at Trial
Mr. Johnson claims defense counsel was ineffective in failing to impeach
witnesses Deneen Johnson, Mallory Markovic, Ashley Dunn, Rebecca Souve,
Megan Fox, and Shekeira Williams through their prior inconsistent statements.
Motion at 31.
“Decisions whether to engage in cross-examination, and if so to what
extent and in what manner, are . . . strategic in nature.”
Nersesian, 824 F.2d at
1321; Eisen, 974 F.2d at 265. Strategic trial decisions, “if reasonably made, will
not constitute a basis for an ineffective assistance claim.” Id.
Where appropriate, Attorney Dolan used prior inconsistent statements for
impeachment purposes. For example, Mallory Markovic stated on direct
examination that Johnson was one of the people she saw most when
participating in the scheme. [Dkt. 263 at 200.] On cross-examination, Attorney
Dolan’s questions revealed that Johnson was not present for at least two
scheme-related trips. [Id. at 216.] Later during the trial, Megan Fox stated on
direct examination that when she went to New Jersey to cash checks in
furtherance of the scheme, she was with Jermaine Jones, a female and a male
28
who were dating but whose names she did not recall. [Dkt. 265 at 97-98.] On
cross-examination, Attorney Dolan elicited testimony that Ms. Fox testified at the
grand jury proceeding that only Jones and a female were present in New Jersey.
[Id. at 134.] In another instance, Attorney Dolan impeached Ms. Johnson
regarding her inconsistent statements:
Q: Regarding the Texas case you testified here about the center line
punches that were found in the vehicle. You testified that you
pretended you didn’t know what they were, right?
A: Right.
Q: Okay. And you did that out of self interest, right?
A: Correct.
Q: You played dumb out of self-interest.
A: Right. (at 12) . . .
Q: Now, when you were pulled over in Texas the police found these
center line punches in the vehicle, right?
A: They found them in my purse after they caught Peezi. He put the
center line punches in my purse.
Q: Right. And your purse was in the vehicle.
A: Yeah . . .
Q: Okay. And you knew what they were used for, right?
A: Correct.
Q: And you knew who they belonged to, right?
A: Yes.
Q: And they belonged to Jermaine Jones? . . . And Peezi?
A: They were given to me by Sheikera. . . .
Q: Okay. You testified earlier last week that they belonged to
Jermaine Jones and Peezi. Is that correct? . . . Or do you want to
change your testimony?
A: No. They belonged to each and every one of them.
[Dkt. 263 at 12-14.] Attorney Dolan also challenged Ashley Dunn’s
credibility through her prior inconsistent statements:
Q: You fooled bank tellers into giving you, at times, thousands of
dollars, right?
A: Yes.
Q: Now, when you were arrested in Kansas, you were wearing a wig,
right?
A: Yes, sir.
Q: Okay. And you wore that wig as a disguise, right? . . . You wore
tha twig to try to fool the bank teller, right?
29
A: Yes, sir. . . .
Q: But that’s not what you told the police was the reason you wore
that wig; is it?
A: No, it wasn’t.
Q: Okay. You actually lied to the police, right?
A: Yes, I did, but I told them the truth after they found out.
Q: But you lied to the police initially, right?
A: Yeah. . . .
Q: You told the police you were wearing the wig because you had
cancer, right?
A: Yeah . . .
[Dkt. 264 at 93-94.]
Likewise, Attorney Dolan impeached Rebecca Souve with her grand
jury testimony:
Q: And now you testified that you met up with [Sheikera Williams]
again to engage in some more bank fraud?
A: Correct.
Q: All right. And you also testified that Michael Johnson was with
her, right?
A: Correct.
Q: Are you sure of that?
A: Yes. . . .
Q: All right. Do you remember testifying before a grand jury in this
courthouse in November of 2009?
A: I do. . . .
Q: And you were given an oath? You raised your right hand, and you
swore to tell the truth at that time, right?
A: Yes. . . .
Q: Didn’t you tell the grand jury then that you met Sheikera, Jermaine
Jones and a white guy, and those were the only people present
when they gave you the checks?
A: I don’t remember. . . .
Q: Isn’t it true that Michael Johnson wasn’t with Sheikera Williams,
Jermaine Jones and some white guy back when you met up with
them in Florida?
A: I can’t say whether it’s true or not. I honestly don’t remember.
[Dkt. 265 at 53-55.]
Finally, Attorney Dolan also exposed Sheikera Williams’ inconsistent
statements:
Q: Do you know a woman named Sabrina Lightfoot?
A: Yes.
Q: Okay. And she was involved in a bank fraud scam, right?
A: Yes. . . .
30
Q: Isn’t she the one who actually taught you the check cashing
scam?
A: No.
Q: Are you sure of that?
A: I’m positive.
Q: Do you remember talking to federal agents in May 2010 down in
Florida?
A: Yes.
Q: You talked to them about Sabrina Lightfoot, right?
A: Yes. . . .
Q: Did you tell them that you learned this bank fraud scam from
Sabrina Lightfoot?
A: Yes.
Q: And was that the truth?
A: No.
[Dkt. 267 at 23-24.]
Attorney Dolan strategically impeached witnesses through prior
inconsistent statements at points he deemed appropriate, and he reasonably and
effectively used grand jury testimony to discredit trial testimony. Mr. Johnson
has not demonstrated how Attorney Dolan’s cross-examinations of the
aforementioned witnesses were unreasonable. The Court has reviewed the trial
transcripts and finds that Attorney Dolan acted reasonably throughout each
cross-examination. He strategically and systematically attacked the credibility of
each witness using various cross-examination techniques. In addition to
highlighting witnesses’ inconsistent statements, Attorney Dolan questioned
witnesses as to their cooperation with the Government and criminal history to
call into question their credibility. [See, e.g., Dkt. 267 at 26-29.]
Without Mr. Johnson presenting affirmative evidence of unreasonable
conduct, the Court cannot conclude that Attorney Dolan’s impeachment strategy
at trial was unreasonable, deficient, or prejudicial.
XII.
Failure to Advise of Right to Plead Guilty
31
Mr. Johnson claims that defense counsel improperly advised him with
respect to his plea offer, because Attorney Dolan “told Johnson that, because the
discovery materials established a loss of well less than $1M, that he, Johnson,
could go to trial, and loose [sic], and still come out on top because the loss
amount would be established in the record. Counsel further told Johnson that,
he, Johnson, could actually go to trial, loose [sic] and get less time than what the
plea agreement provided for.” Motion at 35. The Government raises the fact that
Attorney Dolan provided Mr. Johnson with the Government’s plea offer, a detailed
explanation of the Guidelines as applied to the offer, and the scope of evidence
and discovery. Opposition at 34; Dolan Affidavit at ¶¶ 4-7, 10. Attorney Dolan
also attempted to negotiate with the Government for a plea agreement with a
lower loss amount. Dolan Affidavit at ¶ 4.
When a defendant is deciding whether to accept a plea offer, defense
counsel must balance two key principles regarding client representation. See
Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000). “On the one hand, defense
counsel must give the client the benefit of counsel’s professional advice on this
crucial decision of whether to plead guilty.” Id. (internal quotation marks
omitted). This advice must include communicating the terms of the plea offer,
and it may include informing defendant “of the strengths and weaknesses of the
case against him” and alternative sentences absent acceptance of the plea offer.
Id. at 45. “On the other hand, the ultimate decision whether to plead guilty must
be made by the defendant.” Id. A lawyer cannot “coerce a client into either
accepting or rejecting a plea offer.” Id.
32
The manner in which counsel advises the client “enjoys a wide range of
reasonableness because ‘[r]epresentation is an art’” and counsel can effectively
assist a client in countless ways. Id. (quoting Strickland, 466 U.S. at 689, 693).
Relevant information for counsel to consider in advising client are: “the
defendant’s chances of prevailing at trial, the likely disparity in sentencing after a
full trial as compared to a guilty plea (whether or not accompanied by an
agreement with the government), the defendant’s comprehension of the various
factors that will inform his plea decision.” Purdy, 208 F.3d at 45.
Attorney Dolan explained his discussions with Mr. Johnson regarding the
evidence against him and the advisability of a plea:
One of the issues I often discussed with Mr. Johnson was the
amount of loss attributable to him. Conspiracy law was discussed in
this area I explained to him how he could be held responsible for
loss amounts that occurred during conspiracy. I attempted to
negotiate the loss amount with the Government. The loss amounts
and how the loss amounts related to Guidelines were explained to
him repeatedly. . . . I thoroughly explained the Government’s
evidence against him and the strength of the Government’s case.
Prior to and during trail, I urged him to accept the Government’s
offer.
Dolan Affidavit at ¶¶ 4-5, 7.
Court concludes Attorney Dolan reasonably balanced his duties (1) to give
his professional advice about whether to accept the plea offer and (2) to afford
Mr. Johnson the ultimate decision of whether to plead guilty. See Purdy, 208 F.3d
at 44. Attorney Dolan reviewed the Government’s evidence with Mr. Johnson,
analyzed the strength of the Government’s case, and made clear that he did not
think trial was a good idea. Dolan Affidavit at ¶¶4-5. 7.
33
Mr. Johnson cites Raysor v. United States, 647 F.3d 491 (2d Cir. 2011) for
the proposition that the Court must conduct a hearing to gather evidence about
off-the-record conversations. In Raysor, the Second Circuit clarified that the
standard to determine the necessity of a hearing is akin to the summary judgment
proceeding: “If material facts are in dispute, a hearing should usually be held,
and relevant findings of fact made.” Id. (quoting Puglisi v. United States, 586 F.3d
209, 213 (2d Cir. 2009)). The Second Circuit stated that where an ineffective
assistance of counsel claim is based on improper advice leading to a plea offer
rejection, the petitioner “must demonstrate a reasonable probability that but for
the counsel’s deficient performance, he would have pled guilty instead of going
to trial.” Id. at 495. Specifically, the petitioner was required to establish a prima
facie case that he would have accepted a plea offer absent counsel’s improper
advice. “Prima facie evidence may include a petitioner’s own statement, as was
offered here; however, in order for the statement to be sufficiently credible to
justify a full hearing, it must be accompanied by some ‘objective evidence,’ such
as a significant sentencing disparity, that supports an inference that the
petitioner would have accepted the proposed plea offer if properly advised. Id.;
see also Puglisi, 586 F.3d at 216.
Where a petitioner has made a “self-serving” statement2 that he was
improperly advised regarding his plea agreement, that statement may be belied
2
In Puglisi, the appellant failed to explicitly state in his affidavit that he would
have pled guilty upon sufficient advice of counsel. Rather, that statement only
appeared in the appellant’s memorandum of law in support of his habeas petition.
However, the Puglisi court evaluated appellant’s claim even assuming
“arguendo” that the statement in the memorandum of law had appeared in the
34
by other evidence. Puglisi, 586 F.3d at 215. For example, in Puglisi, it became
clear at sentencing that Mr. Puglisi still had not accepted responsibility for his
criminal conduct. Id. at 218. The sentencing court noted: “Mr. Puglisi wanted to
plead guilty on his terms. He wanted a guarantee that he would get no more than
X amount of years. He chose to go to trial. He didn’t accept responsibility.” Id.
In addition, the Second Circuit found no inference that Puglisi would have
accepted a plea agreement if properly advised, because the appellant failed to
provide the Court with the terms of any “purported plea agreement” including
whether it required cooperation or the appellant’s understanding of its terms, or
any other “evidence sufficient to show, or permit an inference of, a significant
disparity between the terms of a plea offer and his ultimate sentence exposure
after a trial conviction.” Id. at 217. Finally, the Second Circuit noted that the
sentencing court made “numerous statements concerning the severity of the
conduct at issue” which “undermine[d] any assertion by the appellant that he
would have received the benefit of a lenient plea agreement.” 586 F.3d at 218. In
light of all of the relevant circumstances, the Second Circuit found Mr. Puglisi’s
statement incredible and upheld the district court’s decision not to hold a hearing
on the matter. Id.
Here, the evidence before the Court includes Johnson’s statement that
“had Johnson been made aware [of] the law regarding sentencing enhancements,
based on ‘intended loss’ and ‘actual loss’ he would not have proceeded to a jury
sworn affidavit. The Court finds that analysis instructive here, where Mr.
Johnson made such a statement in his affidavit, and the facts undermining the
credibility of that statement are otherwise analogous.
35
trial, but accepted the plea offer of the government.” Johnson Affidavit at ¶ 31.
Contradicting that statement, Attorney Dolan’s affidavit states he “often
discussed with Mr. Johnson . . . the amount of loss attributable to him” as well as
“[c]onspiracy law” and “he could be held responsible for loss amounts that
occurred during conspiracy.” Dolan Affidavit at ¶ 4. In addition, the Court
considers Johnson’s statements during sentencing indicating that, even posttrial, he denied guilt and refused to accept responsibility for the loss amount.
Williams [Dkt. 280 at 36-41.] This statement must also be considered in light of
Johnson’s affidavit, which states the “prosecutor was adamant about stipulating
to a loss of $1 Million” in any plea agreement. Johnson Affidavit at ¶ 13. Neither
party has provided the Court with the details of any proposed plea agreement, so
the Court cannot draw any inferences based on any disparity between the
sentence Johnson would have faced had he pled guilty and that which he
ultimately faced. Finally, at sentencing, this Court made “numerous statements
concerning the severity of the conduct at issue” which “undermine[d] any
assertion by the appellant that he would have received the benefit of a lenient
plea agreement.” 586 F.3d at 218. Accordingly, as in Puglisi, the Court finds Mr.
Johnson has not adequately shown that he suffered prejudice due to any
inadequate advice of counsel regarding a plea agreement, and he is not entitled
to a hearing on this claim. Id.
XIII.
Failure to Investigate and Present Defense
Lastly, Mr. Johnson contends defense counsel failed to investigate and
conduct a reasonable defense. In particular, Mr. Johnson argues, “Of the some
36
68 witnesses who testified, both counsels, collectively, only cross-examined
approximately 18, and briefly.” Motion at 40. Mr. Johnson then lists 11 different
instances3 where defense counsel purportedly assisted the Government. Id. at
40-41. He has not, however, provided any factual or legal basis for the Court to
conclude counsel’s representation fell below an “objective standard of
reasonableness” for allowing the 11 instances to occur or that there was a
“reasonable probability” that the results would be different absent counsel’s
errors. See Strickland, 466 U.S. at 687-88, 694.
Courts routinely hold that where “allegations with regard to alleged
counsel’s errors in pre-trial preparation and investigation and trial advocacy are
‘vague, conclusory, and unsupported by citation to the record, any affidavit, or
any other source,’” ineffective assistance of counsel claims cannot be
established. Vasquez v. United States, Nos. 96 CIV. 2104 (PKL), 91 CR. 153(PKL),
1997 WL 148812, at *12 (S.D.N.Y. Mar.28, 1997); see also Davison v. United
3
These 11 examples include: “(a) permitting the Jury’s copy of Government’s
Exhibit 301 to be “fixed” [see Day 2, November 3, 2011 @ TR. 30]; (b) permitting
government witnesses to testify from notes, without objections, and more
aggravatingly, permitting 8 additional exhibits to be entered, which were notes
from the witnesses, without objections. [Id. @ TR 45-46]; (c) withdrawing claim
that jury saw defendants in handcuffs[ ] [see Day 3, November 4, 2011 @ TR. 91];
(d) stipulating to damaging evidence[ ] [Id. @ TR. 89-91]; (e) permitting the special
agent, who[ ] investigated the case and who[ ] would testify as expert witness, to
remain in courtroom throughout entire trial, without sequester[;] (f) stipulating to
what a government witness [Dianne Larson Lippard] a victim, would testify to
[Day 5, November 8, 2011 @ TR. 11-13]; (g) stipulating to government’s exhibits
154A-C and 140A-C[,] the Willingham and McGregor exhibits[ ] [Id. @ TR. 56]; (h)
permitting the government to call witnesses out-of-turn[ ] [Day 7, November 10,
2011, @ TR. 243]; )i) permitting correction of error in Avid/Budget spread sheet,
and its substitution[ ] [Day 9, November 15, 2011]; (j) permitting [i]nattentive jury
(juror(s)) to deliberate on the case when the court specifically inquired as to this
issue; and (k) permitting the government to lead its witnesses in literally
hundreds of instances.” Id. at 41.
37
States, No. 97 CR. 490 (LAP), 00 CIV. 3064 (LAP), 2001 WL 883122, at *8 (S.D.N.Y.
Aug. 3, 2001) (“[B]lanket assertions against his trial counsel’s performance in a
self-serving affidavit,” in the absence of objective evidence to support
petitioner’s claim, were insufficient). The Court has previously addressed several
instances listed by Mr. Johnson, but to the extent he raises new examples and
cites to the record, the Court has evaluated these examples for deficient and
prejudicial performance. The Court finds that Mr. Johnson’s complaints are
fundamental examples of defense counsel’s trial strategy. As aforementioned, a
“[d]ecisions whether to engage in cross-examination, and if so to what extent and
in what manner, are . . . strategic in nature” and will not constitute ineffective
assistance so long as they are reasonable. Nersesian, 824 F.2d at 1321. There is
no evidence in the record that demonstrates any of counsel’s trial strategies were
unreasonable. Furthermore, in light of the large number of witnesses and the
ample evidence presented at trial, even if counsel were to have acted deficiently
as to the issues raise in this claim, the Court finds Mr. Johnson has not
established a reasonable likelihood that but for these claimed deficiencies there
would likely have been a different outcome in light of the court's questions,
admonitions and instructions to the jury both as jury selection and during the
trial and the copious amount of highly credible and corroborative evidence
against him.
Conclusion
There is no need for this Court to conduct a hearing on this habeas
petition. Although courts generally “look with disfavor on summary rejection of a
38
habeas petition,” United States v. Aiello, 900 F.2d 528, 534 (2d Cir.1990)
(quotation omitted), the text of § 2255 provides that the court need not conduct a
hearing where “the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief,” 28 U.S.C. § 2255(b) (2014); see also
Aiello, 900 F.2d at 534 (finding no reversible error in the failure to conduct a
hearing where the petition omitted “meritorious allegations that can be
established by competent evidence” and the district court judge that ruled on the
petition also presided over petitioner's trial) (citation and internal quotations
omitted). Mr. Johnson is not entitled to relief on any of his claims. Therefore,
this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255 is DENIED.
The Court denies a certificate of appealability because jurists of reason
would not find this procedural ruling debatable. See Slack v. McDaniel, 529 U.S.
473, 478 (2000). The Court CERTIFIES under 28 U.S.C. § 1915(a)(3) that any appeal
would not be taken in good faith.
IT IS SO ORDERED.
VANESSA
BRYANT
_______________________
Digitally signed by VANESSA BRYANT
DN: cn=VANESSA BRYANT, o, ou,
email=VANESSA_BRYANT@CTD.USCO
URTS.GOV, c=US
Date: 2018.02.23 14:11:05 -05'00'
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: February 23,, 2018
39
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