Johnson v. United States of America

Filing 10

ORDER ADOPTING 4 Report and Recommendations of the Magistrate Judge as the opinion of the Court. The Respondent's 3 Motion to Dismiss is granted and the 28 U.S.C. § 2255 Motion is denied. The Court denies Johnson's request for an evidentiary hearing. Accordingly, a COA is denied in this case. Signed by Judge Lisa G. Wood on 4/4/2018. (ca)

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DEXTER JOHNSON,
Movant,
CV417-163

V

CR416-086

UNITED STATES OF AMERICA,

Respondent.
ORDER

Movant

Dexter

Johnson

objects

to

the

Court's

Report

and

Recommendation that his motion to vacate his sentence be denied.

Doc. 45.^
objections

Johnson
to

the

objects

that

Presentence

counsel

Investigative

failed

to

raise

Report

(PSR),

an

omission constituting per se ineffective assistance of counsel.
Id. at 4.

But counsel did lodge objections to the PSR, which

were resolved before sentencing (see PSR Addendum), and argued
at sentencing that the PSR unfairly added three points for a
2000 controlled

substance conviction that should

Doc. 38 at 3, 4-5.
objections

^

counsel

be discounted.

His failure to now specify which additional
failed

to

make

only

underscores

the

The Court is citing to the criminal docket in CR416-086 unless otherwise

noted, and all page numbers are those imprinted by the Court's docketing
software.

inadequacy of his pleading.^

See doc. 45 at 1-6 (conclusorily

arguing that counsel was deficient for failing to make unnamed

and

undescribed

objections

to

the

PSR

prior

to

sentencing,

leading to an unidentified error in his sentencing calculation).
He also contends counsel was per se ineffective for failing to

file

any

motions

pretrial

should

have

motions,
been

but

filed

or

does

not

their

even

basis.

hint

at

Id. at

8;

what
cf,

doc. 20 at 4-5 (affirming that he is pleading guilty because ^'he
is, in fact, guilty of this offense" and agreeing to the factual
accuracy of the Government's charge against him, possession of a
firearm as felon).

He
waiver

also,

however,

makes

fresh

allegations

that

was involuntarily made, as counsel induced

his

plea

him to sign

the Notice of Post-Conviction Consultation^ without permitting
^

A typical

lAC

claim

succeeds

only

where

counsel

has,

metaphorically

speaking, shot at the side of a barn yet missed.
See Sullivan v. Secretary^
Fla. Dep't. of Corr., 837 F.Sd 1195, 1205 (11th Cir. 2016) (an attorney's

ignorance of a point of law that is fundamental to his case combined with his
failure to perform basic research on that point is a quintessential example
of unreasonable performance, as element of ineffective assistance of
counsel); see also id. at 1206 (in prosecution for fleeing and attempting to
elude a law enforcement officer, trial counsel was ineffective in presenting
a
voluntary intoxication
defense
long
after it
had
been statutorily
abolished, instead of advising defendant to accept state's pretrial plea
offer).
Movants "cannot simply "laundry list" conceived claims without
explaining, with full citation to the record, how they were viable and that
no reasonable lawyer would have missed them." Stanton v. United States, 2017
WL 977504 at *6 (S.D. Ga. Jan. 9, 2017).

^

As set forth in the Court's Report and Recommendation:
The Notice is a document this Court developed to memorialize counsel's
consultation with his client and reflect the client's appeal decision.
See Guyton v. United States, 2013 WL 1808761 at * 2 (S.D. Ga. Apr. 29,
2013) (the "Notice of Counsel's Post-Conviction Obligations" requires
that both counsel and client execute and file the form, thus preserving
a record of defendant's instructions regarding an appeal).

him time to read it or explain its significance.

Doc. 45 at 7.

Even crediting his testimony that he signed it without reading
it, that document merely memorializes their conversations — it
does

not

replace

Johnson's

own

sworn

testimony

at

any

other

stage of his plea.

See Blackledge v. Allison, 431 U.S. 63, 73-

74

declarations

(1977)

("Solemn

presumption

of

verity.");

in

United

open

States

court

v.

carry

Spitzer,

a

strong

785

F.2d

1506, 1514 n. 4 (11th Cir. 1986) ("[I]f the Rule 11 plea-taking

procedure is careful and detailed, the defendant will not later
be heard to contend that he swore falsely.").

Johnson explicitly "waive[d] his right to a direct appeal

of his conviction and sentence on any ground . . . [except] if
(1) the court enters a sentence above the statutory maximum, (2)
the

Court

enters

a

sentence

above

the

advisory

Sentencing

Guidelines range found to apply by the Court at sentencing; or
(3)

the

Government

exceptions.

appeals

the

sentence.

Absent

those

Defendant explicitly and irrevocably instructs his

attorney not to file an appeal."

Doc. 20 (plea agreement) at

10-11.

is

None

of

those

exceptions

applicable

sentenced to 80 months' imprisonment, doc. 28,

here:

he

was

well below

the

statutory maximum of 120 months' imprisonment and dead center of

the advisory guideline range.

Doc. 38 at 3 & 10; PSR at SI 67

(advisory range of 70 to 87 months).
Doc. 40 at 5 n. 2 (emphasis added)

Johnson then swore under

oath that counsel had fully explained his appeal waiver to him,
and that he understood he was giving up his right to appeal his
conviction and sentence when he signed the appeal waiver.
37 at 7-8, 13.

Doc.

In fact, the Court emphasized the waiver of his

appeal rights, including the three exceptions to that

waiver,

and Johnson again swore he understood and agreed to those terms.
Id. at 14.

His contention now that he would have appealed had

he known he could be sentenced up to 80 months (doc. 45 at 1-6)
is not enough to overcome his solemn declaration in open court
to the contrary.

Though

he

Blackledge, 431 U.S. at 73-74.

contends

that

the

Court's

explanation

is

not

enough to "absolve counsel from the duty to consult about the

substance of the right to appeal" prior to having him sign the
Notice

of

Post-Conviction

Consultation,

not

one

of

the

three

exceptions to his signed, affirmed, and attested appeal waiver
applied.
maximum

He
and

was

sentenced

mid-Guidelines

applied in full.

four

range,

years
so

below

his

appeal

463 U.S.

statutory

waiver

still

Absent any cause to appeal, counsel cannot be

deficient for failing to file a meritless appeal.
Barnes,

the

745,

751

(1983)

(there

is

See Jones v.

no "constitutional

right to compel appointed counsel to press [even] nonfrivolous

points

requested

by

the

client")

(emphasis

added);

McCoy

v.

Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988)
(the constitutional right to appellate representation

does not

include a right to present frivolous arguments to the court);
Evitts

V.

Lucey,

469

U.S.

387,

394

{1985}

(the

appellate

"attorney need not advance every argument, regardless of merit,
urged by the appellant . . . ." )
.
Aside from general dissatisfaction with his final 80-month
sentence, it is unclear precisely what Johnson thinks ought to

have been done better at the pleading stage.

See docs. 35 & 45.

But his regret that things didn't go as well as he might have

hoped cannot sustain an ineffective assistance of counsel claim.
See Freeman
June

10,

preferred

v.

United States, 2011 WL 2680494 at *5 (N.D. Ga.

2011)

a

("All

more

[m]ovant

favorable

shows

plea

is

that

agreement

—

[he]

such

would

a

have

showing

could be made by almost anyone who has entered a guilty plea.").
Accordingly,

the

Report

and

Recommendation

of

the

Magistrate

Judge is ADOPTED as the opinion of the Court.
Further, a prisoner.seeking relief under 28 U.S.C. § 2255
must

obtain

appealing
corpus.

the

a

certificate
denial

of

his

of

appealability

application

28 U.S.C. § 2253(c)(1)(B).

for

("COA")

before

writ

habeas

of

This Court "must issue or

Because his motion is without merit and his contentions are unambiguously
contradicted by the record, Johnson's request for an evidentiary hearing
(doc. 45 at 2) is DENIED.
Winthrop-Redin v. United States, 767 F.3d 1210,
1216 (11th Cir. 2014) (a hearing is unnecessary "if the allegations are
^patently
frivolous,'
^based
upon
unsupported
generalizations,'
or
'affirmatively contradicted by the record.'"); Holmes v. United States, 876
F.2d 1545, 1553 (11th Cir. 1989) (same); Lynn, 365 F.3d at 1239 (where the
motion "amount[ed] to nothing more than mere conclusory allegations, the
district court was not required to hold an evidentiary hearing on the issues
and correctly denied Lynn's § 2255 motion.").

deny a certificate of appealability when it enters a final order
adverse to the applicant."
Section 2255 Proceedings.

Rule 11(a) to the Rules Governing

This Court should grant a COA only if

the prisoner makes a ""substantial showing of the denial of a
constitutional right."

28 U.S.C. § 2253(c)(2).

For the reasons

set forth in the Report and Recommendation, and in consideration
of the standards enunciated in Slack v. McDaniel, 529 U.S. 473,

482-84 (2000), movant has failed to make the requisite showing.

Accordingly, a COA is DENIED in this case.^

Moreover, because

there are no non-frivolous issues to raise on appeal, an appeal

would not be taken in good faith.
entitled

to

appeal

in

forma

Accordingly, movant is not
pauperis.

See

28 U.S.C.

§ 1915(a)(3).
SO ORDERED this

day of MaKl"

)1^.

J. LIJSA G^BEY_lflQGBr--tItrDGE

[ted/states district court
;rn

^

district of Georgia

"If the court denies a certificate, [a party] may not appeal the denial

but may seek a certificate from the court of appeals under Federal Rule of
Appellate Procedure 22." Rule 11(a) to the Rules Governing Section 2255
Proceedings.