Johnson v. USA

Filing 30

ORDER, denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Keith Bennett Johnson. Case is dismissed with prejudice. Court declines to issue a certificate of appealability. Signed by Chief Judge David R. Herndon on 4/20/2013. (kar)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEITH BENNETT JOHNSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Defendant.

No. 11-cv-288-DRH
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
I.

Introduction and Background

Pending now before the Court is Johnson’s 28 U.S.C. § 2255 petition to
vacate, set aside or correct sentence (Doc. 1).

The government opposes the

motion (Doc. 21). Johnson filed a reply (Doc. 24). Based on the record and the
applicable law, the Court DENIES the motion.
On July 7, 2009, a federal grand jury indicted Johnson on one count of
retaliating against a federal officer by filing a false lien in violation of 18 U.S.C §
1521. On January 5, 2010, a jury found Johnson guilty. On May 6, 2010, the
Court

sentenced

petitioner

to

41

months’

imprisonment

to

be

served

consecutively to a 10 month term in another case. At the sentencing hearing,
Johnson was advised of his appeal rights. The Court entered a written judgment
on May 10, 2010.
Rule 4(b)(1)(A) Fed. R. App. P. requires a defendant to file a notice of
appeal within 14 days of the entry of the judgment, or by May 24, 2010 in
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petitioner’s case. Petitioner failed to file a notice of appeal timely or untimely.
Instead, on September 21, 2010, Johnson filed a motion he titled “Ex Parte
Motion Pro Re Nata, Pro Se.” The Court ordered Johnson to address whether he
intended his motion to be treated as a § 2255 petition. Johnson failed to follow
the Court’s directive, instead filing a letter of clarification. Subsequently, on
October 29, 2010, the Court dismissed Johnson’s motion for lack of jurisdiction.
On April 11, 2011, Johnson filed a motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255. In his motion, Johnson claimed he is
being held unlawfully on three grounds: 1) he received ineffective assistance of
counsel; 2) he is actually innocent of the charge for which he was convicted; and
3) the prosecutor engaged in prosecutorial misconduct. On February 24, 2012,
after receiving the trial transcript, the United States filed its supplemental
response to Johnson’s petition.
II.

Standard

The Court must grant a ' 2255 motion when a defendant's Asentence was
imposed in violation of the Constitution or laws of the United States.@ 28 U.S.C. '
2255.

More precisely, A[r]elief under ' 2255 is available only for errors of

constitutional or jurisdictional magnitude, or where the error represents a
fundamental defect which inherently results in a complete miscarriage of justice.@
Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted).
As a result, A[h]abeas corpus relief under 28 U.S.C. ' 2255 is reserved for
extraordinary situations.@ Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.

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1996); Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
However, a ' 2255 motion does not substitute for a direct appeal.

A

defendant cannot raise constitutional issues that he could have but did not
directly appeal unless he shows good cause for and actual prejudice from his
failure to raise them on appeal or unless failure to consider the claim would result
in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614,
622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United
States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a
' 2255 motion cannot pursue non-constitutional issues that were not raised on
direct appeal regardless of cause and prejudice. Lanier v. United States, 220
F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the '
2255 context is if the alleged error of law represents Aa fundamental defect which
inherently results in a complete miscarriage of justice.@

United States v.

Addonizio, 442 U.S. 178, 185 (1979).
The failure to hear a claim for ineffective assistance of counsel in a ' 2255
motion is generally considered to work a fundamental miscarriage of justice
because often such claims can be heard in no other forum. They are rarely
appropriate for direct review since they often turn on events not contained in the
record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05
(2003); Fountain, 211 F.3d at 433-34. Further, the district court before which
the original criminal trial occurred, not an appellate court, is in the best position
to initially make the determination about the effectiveness of counsel in a

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particular trial and potential prejudice that stemmed from that performance.
Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel
claims, regardless of their substance, may be raised for the first time in a ' 2255
petition.
III.

Analysis

Ineffective Assistance of Counsel
Petitioner claims in his first ground that his trial counsel was ineffective for
several reasons.

First, Johnson alleges that his attorney apologized to the

probation officer, Mr. Kistner, for Johnson’s actions and any harm they caused in
his closing argument. Second, Johnson claims his trial counsel failed to tell the
jury that petitioner and the probation officer had a verbal contract to remove
restitution by September 2008 if Johnson did not file a lien. Third, Johnson
alleges his trial counsel failed to inform the jury that Johnson did not file a false
lien for his probation officer’s performance of an act, but rather for nonperformance of an act. In Johnson’s fourth reason for alleging his trial counsel
was ineffective, he claims his trial counsel failed to tell the jury that the lien
petitioner filed was moot because it was not filed with the Secretary of State, and
therefore he did not know it was false. For his fifth reason, Johnson alleges his
trial counsel was ineffective for failing to “attack or question prosecution
witnesses” which he claims led to perjury by one witness and misstatements by
others, as well as testimony by “irrelevant persons.” Lastly, Johnson claims his

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trial counsel was ineffective because he failed to use evidence “provided by the
F.B.I. and the Prosecutor . . . to attack the Perjuries committed in this case.”
The Sixth Amendment to the Constitution provides that A[i]n all criminal
prosecutions, the accused shall enjoy the right ... to have the Assistance of
Counsel for his defense.@

U.S. Const. amend. VI. This right to assistance of

counsel encompasses the right to effective assistance of counsel.
Richardson, 397 U.S. 759, 771 n. 14 (1970).

McMann v.

A party claiming ineffective

assistance of counsel bears the burden of showing (1) that his trial counsel's
performance fell below objective standards for reasonably effective representation
and (2) that this deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 688-94 (1984); Fountain v. United States, 211 F.3d 429, 434 (7th
Cir. 2000). Either Strickland prong may be analyzed first; if that prong is not
met, it will prove fatal to plaintiff's claim. Strickland, 466 U.S. at 697; Ebbole v.
United States, 8 F.3d 530, 533 (7th Cir. 1993).
Regarding the first prong of the Strickland test, counsel's performance
must be evaluated keeping in mind that an attorney's trial strategies are a matter
of professional judgment and often turn on facts not contained in the trial record.
Strickland, 466 U.S. at 689.

The petitioner's burden is heavy because the

Strickland test is Ahighly deferential to counsel, presuming reasonable judgment
and declining to second guess strategic choices.@ United States v. Shukri, 207
F.3d 412, 418 (7th Cir. 2000) (quotations omitted). In other words, the Court
must not become a AMonday morning quarterback.@ Harris v. Reed, 894 F.2d

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871, 877 (7th Cir. 1990). With regard to the second prong of Strickland, the
petitioner must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have been different.
Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir.
2006). AA reasonable probability is defined as one that is sufficient to undermine
confidence in an outcome.@ Adams, 453 F.3d at 435 (citing Strickland, 466 U.S.
at 694).
Johnson argues that his trial counsel apologized “for his client’s actions
and harm which was realized, [that] was in fact an admission by Mr. Taylor to the
jury, that he believed his client to be guilty.” But Johnson’s trial counsel did not,
in actuality, apologize to the jury for Johnson’s actions. His trial counsel’s words
to the jury were, “Mr. Kistner [the probation officer] is an injured party in this
matter.”

Trial counsel stated this in the context of attempting to mitigate

Johnson’s actions to the jury, explaining that the lien on Kistner’s property was a
burden that Kistner would need to get cleared up before he could sell his house,
but not a criminal act with criminal intent on Johnson’s part. These remarks do
not demonstrate that Johnson’s trial counsel believed his client to be guilty and
communicated that to the jury. Furthermore, the statements certainly do not rise
to the level of ineffective assistance of counsel. Petitioner fails to demonstrate that
there was a reasonable probability that but for the remarks, the outcome of the
trial would have been different.

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As to petitioner’s claim that his trial counsel was ineffective for failing to
present evidence of the alleged verbal contract between Johnson and Kistner, the
claim is without merit. In order for Johnson’s trial counsel to inform the jury
about the alleged verbal contract in his closing argument, evidence of the alleged
agreement would need to have been presented during the trial.

Although the

probation officer testified during trial, he did not give any testimony concerning
the alleged verbal contract. Johnson could have testified as to the existence of a
verbal contract, but he chose to exercise his right not to testify. Thus, there was
no evidence presented about the alleged contract and trial counsel could not argue
to the jury about a fact not in evidence.
Johnson also claims his trial counsel was ineffective for failing to argue to
the jury that petitioner did not file the false lien against Kistner because of
Kistner’s performance of official duties, but rather for his “non-performance” of
duties. This claim is simply a reversal of what the evidence at trial established:
that petitioner filed the lien in retaliation for something Kistner did to which
petitioner objected. Whether, as petitioner argues, it was because Kistner failed to
cancel Johnson’s restitution obligation and supervised release (non-performance
of his duties), or because Kistner attempted to collect restitution and supervise
petitioner’s release (performance of his duties) is completely irrelevant. Had trial
counsel made this argument to the jury, there is not a reasonable probability that
“the result of the proceeding would have been different.” U.S. v. Stark, 507 F.3d
512, 521 (7th Cir. 2007). Thus, petitioner’s claim fails on this ground as well.

Page 7 of 14

Petitioner also claims his trial counsel was deficient for failing to present
evidence that the lien was moot 1 because he failed to file it with the proper
authority, based on the testimony of the government’s expert witness. Petitioner
mischaracterizes the testimony.

In actuality, the expert witness never testified

that the lien was moot, only that if the collateral for the lien was real property, as
is the case here, it would be recorded in the County Recorder’s office in the county
in which the property was located.

The expert further testified that the form

petitioner used to file the lien with the Secretary of State’s office would typically
be used when personal property constituted the collateral. Moreover, the expert’s
testimony demonstrated that petitioner’s lien created a defect in the title of
Kistner’s property, needing to be cured before he could sell the property.
Therefore, the lien was not moot, and this claim is also without merit.
Petitioner’s penultimate claim that his trial counsel was ineffective for
failing to “attack or question prosecution witnesses” appears to be a broad claim
that the cross-examination of several witnesses was not sufficiently vigorous.
However, petitioner’s scant five line paragraph fails to specify how this alleged
failure led to perjury and misstatements by the witnesses. He also fails to identify
the “irrelevant persons” he claims resulted from this lack of trial counsel’s
“attack” on witnesses. With no specific information, the Court cannot find that
petitioner demonstrated any prejudice to him resulted from this allegation, nor
even that the allegation was true.

1

Petitioner claims his lien was “rendered mute,” but the Court assumes he meant
the lien was “moot” instead.
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Lastly, petitioner’s argument that his trial counsel was ineffective for failing
to use the evidence provided by the F.B.I. and the prosecutor to “attack the
[p]erjuries committed in this case” is equally without merit. Again, petitioner fails
to specify what the evidence was that was provided by the F.B.I. and the
prosecutor that his trial counsel failed to use. Likewise, petitioner fails to identify
the perjuries he contends were committed during his trial; he fails to identify how
his trial counsel could have used the unidentified evidence to attack the
unidentified perjuries; and he fails to even speculate on how this would have
resulted in an acquittal.

Thus petitioner’s argument fails on this ground.

Fountain, 211 F.3d at 434.
Based on the above reasons, the Court finds that petitioner failed to prove
on any grounds that he received ineffective assistance from his trial counsel such
that a reasonable probability existed that the outcome of the proceeding would
have been different.
Actual Innocence
In the second ground upon which Johnson claims his sentence should be
vacated, he alleges actual innocence. Petitioner argues that the evidence did not
prove that he filed a false lien against the probation officer as retaliation for
Kistner’s actions as he was charged, but that it was for Kistner’s non-performance
of his duties. Johnson argues that the evidence established the lien was “of no
effect” because it was filed incorrectly and it “could be bonded around.”
Court finds this claim is without merit.

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The

As discussed above in petitioner’s claim of ineffective assistance of counsel,
the fact that the lien was filed on the incorrect form did not render it moot. The
lien created a defect on the title to Kistner’s house. Under 18 U.S.C. § 1521, it is
a criminal offense to file a “false lien or encumbrance against the real or personal
property of an individual” who is a federal law enforcement officer as retaliation
for performance of official duties. The statute does not except the filing of a false
lien on an improper form. As noted above, petitioner’s claim that he filed the lien
for “non-performance” of duties rather than for “performance” of duties is an
absurd exercise of semantics.
The Court finds that petitioner failed to prove he is actually innocent of
filing a false lien against Kistner under 18 U.S.C § 1521. Therefore, he is not
entitled to have his sentence vacated, set aside or corrected on this ground.
Prosecutorial Misconduct
For his final ground upon which petitioner claims he is being held
unlawfully, petitioner alleges that the prosecutor committed perjury 2 when he
made statements to the jury during his closing argument that he had no
knowledge of the term “natural person,” when he knew “such entity does exist.”
As support for this allegation, petitioner claims that the prosecutor “compiled a

2

Since the prosecutor was not testifying under oath, his remarks during closing
argument could not possibly be perjury. Nevertheless, the Court examines this
allegation.
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motion (response) dated 11-26-2009,3 whereby, it went into great detail as why
such entity was not held by the Court.”
For the prosecutor to have committed misconduct, Johnson must first
show that the prosecutor’s comments “robbed him of a fair trial.” United States
v. Lathrop, 634 F.3d 931, 940 (7th Cir. 2011). Petitioner must demonstrate that
the statement he attributes to the prosecutor was not only improper, but so
improper “as to constitute ‘a particularly egregious error that resulted in a
miscarriage of justice.’” Id. at 941.
In the government’s response to which petitioner refers, the prosecutor
refuted Johnson’s claim that the United States lacked standing and the Court
lacked personal jurisdiction because Johnson was a “Sovereign citizen” and a
“non-juridical” entity. Additionally, during his closing argument, the prosecutor
made a comment that he was not sure what petitioner’s claim to be a “nonjuridical entity” meant. The Court has reviewed the transcript and finds the only
statement questioning the meaning of “natural person” was made by Johnson’s
own trial counsel in his closing argument.
Moreover, a claim of prosecutorial misconduct should have been raised on
direct appeal. Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997). A
§ 2255 is not a substitute for a direct appeal. Id. A non-constitutional claim that
could have been raised on direct appeal, but was not, is deemed waived. Id.

3

The Court notes that there is no docket entry for November 26, 2009, but
petitioner appears to be referring to a response filed October 26, 2009 in which
the USA responded to a motion to dismiss the indictment that petitioner filed
earlier.
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To have his claim of prosecutorial misconduct considered, petitioner must
demonstrate both good cause for failure to raise the claim earlier, and the actual
prejudice resulting from the error he alleges. United States v. Frady, 456 US
152, 170 (1982). Here, petitioner claims in his petition that he failed to raise the
claim previously because he “had been seriously ill both during trial and
thereafter, causing movant to be hospitalized near death.” However, petitioner
does not provide any evidence to support this claim, nor does he demonstrate
that he suffered any prejudice from the prosecutor’s comments during his closing
argument that he did not know what petitioner’s claim to be a non-juridical entity
meant. Johnson states only that “the jury, who if given the facts about such may
have been able to draw a different conclusion.”

Yet petitioner offers no

explanation of why the jury might have drawn “a different conclusion” nor what
conclusion it might have drawn.
Given that the record does not support petitioner’s allegations of the
prosecutor’s statements, let alone that it does not support the assertion that there
is reasonable probability a jury would have acquitted him if not for the comments
petitioner claims the prosecutor made, the Court finds no grounds to vacate, set
aside or correct petitioner’s sentence on this allegation.
Evidentiary Hearing
Finally, the Court notes that the United States, in its supplemental response
to Johnson’s § 2255 petition, argues that petitioner is not entitled to an
evidentiary hearing. The government argues that for a hearing to be necessary on

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a § 2255 petition, “the petition must be accompanied by a detailed and specific
affidavit which shows that the petitioner had actual proof of the allegations going
beyond mere unsupported assertions.”
1001, 1009 (7th Cir. 2002).

Galbraith v. United States, 313 F.3d

The Galbraith Court held that without such an

affidavit, the petitioner cannot meet the threshold requirement for an evidentiary
hearing. Id.
Here, the Court finds that petitioner has made only allegations, some of
which are contradicted by the record itself.

Petitioner has not presented any

proof by way of an affidavit, any references to the transcript, or any other evidence
in the record to support his assertions that his trial counsel provided ineffective
assistance; that he is actually innocent; or that any prosecutorial misconduct
transpired.

Moreover, petitioner failed to demonstrate that any of these

allegations, even if true, caused him prejudice.

Thus, the Court finds that

petitioner is not entitled to an evidentiary hearing on his claims.

IV.

Conclusion

For the reasons stated above, the Court finds there are no errors of
constitutional or jurisdictional magnitude in petitioner’s case, or that any error
represents a fundamental defect which inherently resulted in a complete
miscarriage of justice.

Accordingly, the Court DENIES petitioner’s § 2255

petition to vacate, set aside or correct sentence (Doc. 1). The Court DISMISSES

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with prejudice this cause of action. The Court ORDERS the Clerk of the Court
to enter judgment reflecting the same. Further, the Court DECLINES to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed this 20th day of April, 2013.

David R.
Herndon
2013.04.20
10:49:10 -05'00'
Chief Judge
United States District Court

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