Johnson v. USA
Filing
68
ORDER GRANTING 51 Motion to Strike and DENYING 50 Third Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Signed by Judge Nancy J. Rosenstengel on 4/8/16. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WENDELL JOHNSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 11-CV-580-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Following a two-day jury trial, Wendell Johnson was convicted on two counts of
distribution of crack cocaine and sentenced as a career offender to 300 months in prison.
Following an unsuccessful direct appeal to the Seventh Circuit, Johnson filed a pro se
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“§ 2255
petition” or “habeas petition”). Counsel was later recruited for Johnson and given leave
to file an amended § 2255 petition (Doc. 50), which is currently before the Court. Also
before the Court is the Government’s motion seeking to strike two attorney affidavits
that Johnson submitted with his amended § 2255 petition (Doc. 51). For the reasons
explained below, the Government’s motion to strike is granted, and Johnson’s § 2255
petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Criminal Case
The Drug Enforcement Administration and the Alton Police Department began
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investigating Wendell Johnson after a confidential source informed them that he had
purchased crack cocaine from Johnson more than ten times during the previous year.
United States v. Wendell Johnson, SDIL Case No. 3:09-cr-30025, Doc. 36. The agents then
had the confidential source conduct two controlled buys of crack cocaine from Johnson
in February 2009. Id.
Shortly thereafter, on March 17, 2009, Wendell Johnson was indicted on two
counts of distribution of crack cocaine. SDIL Case No. 3:09-cr-30025, Doc. 1. The case was
assigned to Judge William D. Stiehl. Assistant Federal Public Defender Stephen Williams
was appointed to represent Johnson. Id. at Doc. 12. Mr. Williams withdrew three weeks
later, however, and Assistant Federal Public Defender Renee Schooley took over. Id. at
Docs. 16, 37. Johnson’s case went to trial in June 2009. After a two-day trial, the jury
found Johnson guilty on both counts of distributing crack cocaine. Id. at Docs. 30, 31.
Following the trial, Johnson complained about Ms. Schooley’s representation, so she
sought to withdraw. Id. at Doc. 37. Ms. Schooley’s motion was granted, and Rodney
Holmes, a member of this district’s Criminal Justice Act panel, was appointed to
represent Johnson at his sentencing. Id. at Doc. 40.
According to the presentence investigation report (“PSR”), Johnson’s relevant
conduct was 4.3 grams of crack cocaine. SDIL Case No. 3:09-cr-30025, Doc. 36. This
resulted in a total offense level of 22 under the drug quantity table in § 2D1.1. Id. The PSR
further indicated that a two-level enhancement for obstruction of justice was applicable
because Johnson disclosed the identity of a cooperating witness to an acquaintance
during recorded telephone conversations. Id. Thus, Johnson’s total adjusted offense level
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was 24. The PSR also concluded, however, that Johnson was a career offender under
U.S.S.G § 4B1.1 based on two previous convictions for robbery, two previous convictions
for aggravated battery, and a previous conviction for unlawful delivery of a controlled
substance. Id. With the career offender enhancement, Johnson’s total offense level
jumped to 34. Id. With a criminal history category of VI, Johnson’s advisory guideline
range was 262 to 327 months. Id.
Before the sentencing hearing, attorney Rodney Holmes filed objections to the
PSR. SDIL Case No. 3:09-cr-30025, Doc. 46. He argued that Johnson’s relevant conduct
should only be 2.8 grams of crack cocaine, and he objected to the two-level enhancement
for obstruction of justice. Id. Consequently, according to Mr. Holmes, Johnson’s offense
level should be 18. Id. Mr. Holmes also filed a motion for a downward departure from
the sentencing guidelines. Id. at Doc. 37. He argued that Johnson’s traumatic childhood,
history of drug and alcohol abuse, mental disorder diagnoses, and the fact that Johnson
never received adequate treatment for any of these things, justified a downward
departure from the career offender guideline sentence. Id.
Johnson’s sentencing hearing was held on October 14, 2009, in front of Judge
Stiehl. SDIL Case No. 3:09-cr-30025, Docs. 49, 53, 53. Judge Stiehl overruled Johnson’s
objection regarding his relevant conduct and concluded Johnson was responsible for 4.3
grams of crack cocaine. Id. at Doc. 60. Judge Stiehl sustained Johnson’s objection on the
obstruction enhancement and concluded that it did not apply. Id. Thus, Judge Stiehl
concluded Johnson’s adjusted offense level was 22. Id. Judge Stiehl further concluded,
however, that the career offender enhancement applied, and Johnson’s offense level was
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actually a 34. Id. With a criminal history category of six, Johnson’s guideline sentencing
range was 262 to 327 months. Id. Neither party objected to this calculation. Id.
Mr. Holmes was then given an opportunity to present mitigation evidence and
argument. SDIL Case No. 3:09-cr-30025, Doc. 60. Mr. Holmes had no evidence, but he
did elaborate on the arguments he made in his presentence motion for a downward
departure from the career offender guidelines. See id. Mr. Holmes first noted that
amendments to the crack cocaine guidelines were in the works, and the amount of crack
cocaine Johnson was responsible for—4.3 grams—was small and less than the amount
needed to trigger a statutory minimum sentence (five grams). Id. at p. 16. Mr. Holmes
then pointed out that, at only eight years old, Johnson saw “his mother being gunned
down by his father” and then a couple days later his father committed suicide. Id. at p.
17. Mr. Holmes argued these were “life-altering” events for Johnson, and he never
received any counseling to cope with them. Id. Next, Mr. Holmes pointed out that
Johnson’s father was “extremely abusive” and would make the children drink alcohol
when they cried or were restless. Id. Mr. Holmes argued that as a result of Johnson’s
childhood experiences, by age ten or eleven, Johnson was drinking alcohol and smoking
marijuana on a daily basis. Id. Drugs and alcohol became Johnson’s “coping device.” Id.
at p. 18. As an adult, Johnson was diagnosed with polysubstance abuse and severe
anti-social personality disorder. Id. at p. 17. Mr. Holmes argued that these mental
disorders “had bearing on [Johnson’s] ability to make sound judgment and sound
reason during his life.” Id. at p. 18. He further argued that because of Johnson’s
socioeconomic status, he did not have the resources to seek help and get treatment. Id.
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Mr. Holmes concluded by stating that “for 4.3 grams of crack cocaine, in light of the
changes that are going through with the crack guidelines . . . the amount of drugs,
[Johnson’s] upbringing, the tragedy that [he] witnessed at a young age . . . the fact that he
hasn’t had treatment . . . the career offender guidelines are way--just entirely too much
punishment.” Id. at p. 19.
In response, the Government argued that over twenty-five years had passed since
the tragedies of Johnson’s childhood, and he had “time and time again to try to right his
ways, and every time he [went] and commit[ted] new crimes.” SDIL Case No.
3:09-cr-30025, Doc. 60, p. 21. In rebuttal, Mr. Holmes implored the Court not to
“discredit” or “simply discard” the events of Johnson’s childhood. Id. at p. 23. Most
pertinently, Mr. Holmes argued that “these kind of tragedies had lifelong, scarring
effects. And especially with young children, they affect their development, their
maturity, their intellectual development, [and] their emotional development.” Id. Mr.
Holmes also reminded Judge Stiehl that Johnson received social security benefits for his
mental disorders—borderline intellectual functioning, intermediate explosive disorder,
impulse control disorder, and mood disorder. Id. at p. 22.
Judge Stiehl considered all of the arguments by both parties and the 18 U.S.C.
§ 3553(a) factors and sentenced Johnson to a 300 month term of imprisonment. SDIL
Case No. 3:09-cr-30025, see Doc. 60, pp. 24, 25, 26. He stated that the death of Johnson’s
parents “obviously had an effect on him, as it would anyone,” and it was “clearly a
mitigating factor.” Id. at p. 24. Then Judge Stiehl stated that he also had to take into
consideration Johnson’s criminal record. Id. “I think he’s had something like twelve
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convictions, starting at age 11. He has not learned from any of those apparently. He was
treated very gently initially, and he went on, and some of the penalties he received were
a little more stringent, but he has not learned from them obviously.” Id. Judge Stiehl
went on to say that other than the death of Johnson’s parents, “I find nothing in his
record to suggest leniency to this Court.” Id. at p. 25. His conduct “has been
reprehensible throughout his life both as a minor and once he reached adulthood.” Id.
Judge Stiehl explained that in imposing the 300-month sentence, he had to consider “not
only the effect it has on [Johnson], but what it can do to help society.” Id. He believed the
sentence was sufficient to punish Johnson, to deter others, and to “protect society” from
Johnson’s criminal activities “for a substantial period of time.” Id.
Johnson appealed his conviction and sentence to the Seventh Circuit Court of
Appeals. United States v. Johnson, 624 F.3d 815 (7th Cir. 2010). Mr. Holmes continued to
represent Johnson on direct appeal. On October 26, 2010, Johnson’s conviction and
sentence were affirmed by the Seventh Circuit Court of Appeals. Id.
B. § 2255 PETITION
Johnson filed his pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C. § 2255 on July 5, 2011 (Doc. 1). The case was assigned to Judge Stiehl. After
being ordered to respond to the petition, the Government filed its response to Johnson’s
habeas petition on November 9, 2012 (Doc. 11; Doc. 18). Two weeks later, Johnson filed a
reply (Doc. 19).
Even though his § 2255 petition was fully briefed, Johnson requested counsel in
December 2012 (Doc. 21). His request was granted, and Lee Lawless from the Federal
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Public Defender for the Eastern District of Missouri entered his appearance on behalf of
Johnson (Docs. 23, 24). Mr. Lawless sought leave of court to file an amended habeas
petition and/or an amended reply (Docs. 25, 26). Judge Stiehl did not allow Mr. Lawless
to further amend the habeas petition because it had already been amended and
supplemented numerous times by Johnson; however, Judge Stiehl permitted Mr.
Lawless to file an amended reply (Doc. 27). Mr. Lawless sought a number of extensions
of time to file his amended reply in order to subpoena and gather records, interview
Johnson, interview Johnson’s relatives, and arrange a psychological evaluation of
Johnson (Docs. 32, 34, 40).
In February 2014, before Mr. Lawless filed his reply brief, the case was reassigned
to District Judge David Herndon. Three months later, it was reassigned to the
undersigned. In the interests of justice, the undersigned gave Mr. Lawless permission to
file an amended § 2255 petition (Doc. 47). On July 17, 2014, Mr. Lawless filed a Third
Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
(Doc. 50). The Government filed its response on February 18, 2015, and Johnson filed his
reply on April 3, 2015 (Docs. 55, 57).
The § 2255 petition is now ripe for ruling. Johnson asks the Court to vacate, set
aside, or correct his sentence based on ineffective assistance of his sentencing counsel,
Rodney Holmes (Doc. 50). Specifically, Johnson claims that Rodney Holmes was
ineffective because he:
(1)
failed to investigate and present mitigating evidence at Johnson’s
sentencing;
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(2)
failed to correct errors in the presentence investigation report regarding
Johnson’s prior criminal convictions that qualified as predicate offenses for
the career offender enhancement; and
(3)
failed to present a number of legal arguments and relevant authority for a
sentence below the career offender guideline range.
DISCUSSION
28 U.S.C. § 2255 requires a court to vacate, set aside, or correct the sentence of a
prisoner in custody if it finds that “the sentence was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C. § 2255. “[R]elief under § 2255 is an
extraordinary remedy because it asks the district court essentially to reopen the criminal
process to a person who already has had an opportunity for full process.” Almonacid v.
United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063,
1068 (7th Cir. 2006)). It “is available only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has occurred
which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870,
878-79 (7th Cir. 2013) (citations omitted).
I.
EVIDENTIARY HEARING
Courts can often decide § 2255 motions without an evidentiary hearing. See Bruce
v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (“A district court need not grant an
evidentiary hearing in all § 2255 cases.”) A hearing is not required if “the motion, files,
and records of the case conclusively show that the prisoner is entitled to no relief.”
Hutchings v. United States, 618 F.3d 693, 699–700 (7th Cir. 2010) (citing Torzala v. United
States, 545 F.3d 517, 525 (7th Cir. 2008)). On the other hand, a hearing should be granted
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if the petitioner “alleges facts that, if proven, would entitle him to relief.” Hutchings, 618
F.3d at 699 (citing Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009)).
Johnson has requested an evidentiary hearing (Doc. 50). In this instance, however,
the Court finds that a hearing is not required. The parties have submitted conflicting
evidence regarding Mr. Holmes’s actions prior to sentencing; however, a hearing is not
needed to determine the relative credibility of the evidence or to resolve the conflict,
because it is clear that even if Johnson’s version of events is correct, he cannot show that
he suffered any prejudice. Thus he is not entitled to any relief, and no evidentiary
hearing is required.
II.
MOTION TO STRIKE ATTORNEY AFFIDAVITS (DOC. 51)
In support of his third amended § 2255 petition, Johnson submitted affidavits
from two criminal defense attorneys, Jed Stone and George Taseff (Docs. 50-3, 50-4). The
affidavits are submitted as expert opinions that Rodney Holmes’s performance at
sentencing was deficient and prejudicial to Mr. Johnson (Docs. 50-3, 50-4). The
Government moved to strike both affidavits (Doc. 51).
Rule 702 of the Federal Rules of Evidence states that an expert may testify if his or
her specialized knowledge will aid the trier of fact in determining a specific issue. The
Court does not doubt Mr. Stone and Mr. Taseff’s knowledge and experience, but in this
instance, their opinions are not necessary to assist in understanding the evidence or
determining any fact in issue regarding Mr. Holmes’s performance. The Supreme Court
has recognized time and again, “[t]here are countless ways to provide effective
assistance in any given case, and that even the best criminal defense attorneys would not
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defend a particular client in the same way.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal quotation marks
omitted)). Additionally, given the regularity with which criminal sentencings occur in a
district court, the undersigned is familiar with a wide-spectrum of approaches in
investigating and presenting mitigating evidence and arguments in non-capital cases.
Accordingly, the Court is satisfied that it can determine whether Mr. Holmes rendered
ineffective assistance without the need for expert testimony. The Government’s motion
to strike is granted, and the affidavits of George Taseff and Jed Stone are stricken.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A claim of ineffective assistance of counsel is properly raised in a § 2255 motion
because it implicates the Sixth Amendment, which provides criminal defendants the
right to counsel. U.S. CONST. amend. VI. “[A]nd inherent in this right is that the
defendant is entitled to the effective assistance of counsel.” United States v. Recendiz, 557
F.3d 511, 531 (7th Cir. 2009) (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970))
(emphasis added). Generally speaking, counsel is ineffective when his or her “conduct
so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Recendiz, 557 F.3d at 531 (quoting Strickland
v. Washington, 466 U.S. 668, 686 (1984)).
“To demonstrate that the right to counsel was violated by ineffective assistance, a
person challenging a conviction must meet the familiar two-part standard set forth in
Strickland.” McElvaney v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013) (citing Strickland, 466
U.S. at 688). The petitioner must show that his counsel’s performance was deficient,
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“meaning it fell below an ‘objective standard of reasonableness’ informed by ‘prevailing
professional norms.’” McElvaney, 735 F.3d at 532 (quoting Strickland, 466 U.S. at 688). See
also Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011) (“The question is whether an
attorney’s representation amounted to incompetence under ‘prevailing professional
norms,’ not whether it deviated from best practices or most common custom.” (quoting
Harrington v. Richter, 562 U.S. 86, 88 (2011))).
The petitioner also must show that “his counsel’s deficient performance
prejudiced him, meaning that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
McElvaney, 735 F.3d at 532 (quoting Strickland, 466 U.S. at 688). More specifically, when
challenging a sentence, “a petitioner must show that but for counsel’s errors, there is a
reasonable probability that he would have received a different sentence.” Griffin v. Pierce,
622 F.3d 831, 844 (7th Cir. 2010) (citing Strickland, 466 U.S. at 695). “A reasonable
probability is a probability sufficient to undermine confidence” in the sentence. Taylor v.
Bradley, 448 F.3d 942, 950 (7th Cir. 2006) (quoting Strickland, 466 U.S. at 694). It is not
enough to show that the errors possibly had “some conceivable effect” on the sentence.
Strickland, 466 U.S. at 694.
“Surmounting Strickland’s high bar is never an easy task.” Harrington, 562 U.S. at
105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). See also Shell v. United States, 448
F.3d 951, 955 (7th Cir. 2006) (“[A] party bears a heavy burden in making a winning claim
based on ineffective assistance of counsel.” (citation omitted)); Sullivan v. Fairman, 819
F.2d 1382, 1391 (7th Cir. 1987) (explaining “few petitioners” are expected to be able to
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pass through the “‘eye of the needle’ created by Strickland” (quoting Matthew 19:24)).
The Court may address the elements of the Strickland test “in whichever order is
most expedient.” Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009); Strickland, 466 U.S.
at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.”)
A petitioner’s “failure to satisfy either prong is fatal to his claim.” Ebbole v. United States,
8 F.3d 530, 533 (7th Cir. 1993) (citing United States v. Slaughter, 900 F.2d 1119, 1124 (7th
Cir. 1990)).
A. Failure to Develop Mitigating Evidence for Use at Sentencing
Johnson first argues that Rodney Holmes was ineffective at sentencing when he
failed to investigate, develop, and present evidence of all the potential mitigating factors
that could have reduced his sentence (Doc. 50, pp. 10–49). Johnson claims that Mr.
Holmes relied exclusively on the limited information in the PSR and did not dig any
deeper. According to Johnson, the information contained in the PSR should have
prompted Mr. Holmes to obtain available records, such as school records, correctional
institution records, and Social Security Administration records; to interview Johnson’s
family members; and to have Johnson evaluated by a mental health expert. As a result of
Mr. Holmes’s failure to do so, Johnson claims that Holmes was “ignorant of the full
extent” of the abuse, neglect, and trauma he suffered as a child; his low IQ and limited
education; his history of head injuries and loss of consciousness; his alcohol and
substance abuse; and his struggles with mental and emotional problems issues, which
left the judge with “an inadequate picture of Mr. Johnson’s life” and “no framework for
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understanding Johnson’s functioning and behavior.” (Doc. 50, pp. 13, 29, 45).
The Court is going to heed the Supreme Court’s advice and skip the discussion of
whether Mr. Holmes’s performance was objectively deficient, because it is easier to
dispose of Johnson’s ineffectiveness claim on the ground of lack of sufficient prejudice.
Strickland, 466 U.S. at 697.
In order to establish that counsel’s failure to investigate mitigating circumstances
was prejudicial, the petitioner must present new evidence that “alter[s] the sentencing
profile presented to the sentencing judge.” Strickland, 466 U.S. 668, 700 (1984). In other
words, the new evidence “must differ in a substantial way—in strength and subject
matter—from the evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d
308, 319 (6th Cir. 2005). See also Saranchak v. Sec’y, Pa. Dep’t of Corr., 802 F.3d 579, 592 (3d
Cir. 2015) (“must consider the strength of the evidence in deciding whether the Strickland
prejudice prong has been satisfied.” (citations omitted)); Beuke v. Houk, 537 F.3d 618, 646
(6th Cir. 2008) (“A petitioner does not establish prejudice if he shows only that his
counsel failed to present ‘cumulative’ mitigation evidence, that is, evidence already
presented to the jury”); Blanton v. Quarterman, 543 F.3d 230, 239, n.1 (5th Cir. 2008)
(explaining that, in recent Supreme Court cases finding prejudice from trial counsel’s
failure to investigate, the mitigation evidence that the attorneys failed to uncover was
“shocking and starkly different than that presented at trial.”)
Johnson claims that the sentencing judge “was presented with virtually none of
the available evidence of [his] excruciating life history, mental illness, [and] neurological
and cognitive impairments.” (Doc. 50, p. 1). That is an overstatement. The PSR
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admittedly did not present Johnson’s troubled life and mental and emotional problems
in the most compelling manner. And Rodney Holmes could have dug a little deeper to
make a rich, detailed presentation of Johnson’s life. But that alone is insufficient to
establish prejudice. See Andrashko v. Borgen, 88 F. App’x 925, 930 (7th Cir. 2004)
(“Andrashko’s counsel might have been able to present the mitigating factors in a more
positive light, but such a possibility does not establish prejudice.”); United States v. Green,
680 F.2d 183, 190 (D.C. Cir. 1982) (“It is at best pure speculation that more eloquent
pleading would have resulted in a lower sentence.”) See also Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in every case,
could have done something more or something different. So, omissions are inevitable.”).
And it is clear from the information presented by the PSR and by Mr. Holmes at
sentencing, the sentencing judge was aware, by and large, of the mitigating evidence
that Johnson claims Holmes failed to present.
More specifically, based on the PSR and Rodney Holmes’s arguments, the
sentencing judge knew that Johnson’s developmental years were rife with physical
abuse, substance abuse, and extreme trauma. The PSR noted that Johnson’s father was
an alcoholic, a heroin addict, and extremely physically abusive. Johnson reported that
his father “made” the kids drink alcohol to calm them down, and he was physically
abusive to his mother “all of the time.” Johnson characterized his mother as “a sweet,
church-going lady, [who] was victimized by his father.” He remembered his father “as a
severe disciplinarian who ‘tore their butts up’” and “forced his [wife] to discipline the
children.” When Johnson was eight years old, he saw his father fatally shoot his mother
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and shoot his maternal grandmother in the face. Johnson and his siblings were only
“spared . . . because his father ran out of bullets.” Days later, Johnson’s father committed
suicide. The PSR notes that, following the death of their parents, Johnson and his siblings
were split up amongst family members. Johnson and his two older siblings were raised
by their maternal grandmother. Johnson reported that he never received counseling to
help him cope with those events.
The sentencing judge knew that Johnson had a history of alcohol and substance
abuse that began shortly after the death of his parents and continued, unabated,
throughout his adult life. The PSR indicated that Johnson began smoking marijuana at
age ten and drinking alcohol at age eleven. Johnson admitted having an “alcohol
problem” as an adult and reported drinking “massive quantities on a daily basis.” He
stated he smoked marijuana “as much as possible,” which was at least a couple times per
week. Johnson also reported using cocaine on a daily basis since the age of seventeen. He
attended substance abuse treatment in 2001 and 2007 as part of his probation (or parole),
but he resumed using substances after completing treatment.
The sentencing judge also knew that Johnson’s criminal activity began the year
after his parents died, when he was just nine years old. That year he was arrested for
shoplifting. He had two more arrests for theft and shoplifting before his first conviction
at age eleven for residential burglary. He was again convicted of residential burglary at
age twelve and of theft at age thirteen. At fourteen, he was arrested for attempted
robbery, battery, delivery of marijuana, and resisting arrest. At sixteen, he was arrested
in a bullet-riddled house with guns, ammunition, and cocaine; and on a separate
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occasion he was arrested for aggravated assault involving a firearm.
Johnson’s criminal activity continued into adulthood and sometimes involved a
shocking and disturbing level of violence. He was convicted of robbery and burglary at
age seventeen when he attacked a male victim and his mother at a gas station and stole
their gun. That same year, he was convicted of robbery when he and three other men
beat a fifteen-year-old with a pipe and stole his Los Angeles Raiders jacket. He was
sentenced to six years’ imprisonment but only served approximately two and a half
years before being released on parole. Less than six months after being released on
parole, Johnson was arrested for (and eventually convicted of) battery after an incident
at a party where he threw a woman against the wall and choked her because she would
not talk to him. That same year, Johnson was convicted of obstructing a police officer
when he ran from the officer after being told to stop and dove headfirst through the glass
door of a residence trying to get away.
At twenty-one, Johnson was convicted of criminal trespass. He was also convicted
of aggravated battery and illegal possession of a weapon by a felon when, during a
gang-related altercation at a tavern, he shot two men, one of whom sustained serious
injuries to his buttocks and scrotum. He was sent back to prison and served close to five
years before being paroled. Less than one year after he was discharged from parole, at
the age of twenty-eight, Johnson was arrested for, and eventually convicted of,
aggravated battery after he had sexual intercourse with a seventeen-year-old girl, who
claims it was against her will. A year after that conviction, Johnson was arrested for, and
eventually convicted of, obstructing a police officer, battery, and fleeing from a police
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officer after he got in a scuffle with police officers in an attempt to prevent them from
chasing down his brother Wardell. At age thirty-two, he was convicted of unlawful
delivery of a controlled substance after he delivered fourteen grams of crack cocaine to a
confidential source. Then, at the age of thirty-four, he was indicted in the underlying
federal criminal case after selling crack cocaine on two occasions to a confidential source.
The PSR also tipped off the sentencing judge to Johnson’s low IQ, limited
education, and battle with psychological issues. Specifically, the PSR stated that Johnson
only completed the eighth grade. It further stated that during an IDOC evaluation in
2007, Johnson was diagnosed with “polysubstance abuse” and “severe antisocial
personality disorder.” The PSR also revealed that Johnson was awarded Social Security
Supplemental Security Income due to borderline intellectual functioning, intermittent
explosive disorder, impulse control disorder, and a mood disorder. In other words, the
Social Security Administration believed that Johnson was so crippled by his mental
impairments that he was unable to obtain and/or maintain substantial, gainful
employment.
Based on the PSR, the sentencing judge was also aware that Johnson’s siblings
were dealing with a host of mental health and legal issues. Specifically, the PSR
indicated that Johnson’s older sister, Melissa, was dead; she was stabbed to death in 2000
by his younger sister, ShaJuan, during a fight. ShaJuan was convicted of second-degree
murder and sentenced to 20 years’ imprisonment. Johnson also reported that “all of his
brothers have violent tempers.” His younger brother, DaJuan, was arrested three days
before Johnson for selling crack cocaine; he was sentenced in December 2009 to ten
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years’ imprisonment. United States v. DaJuan Williams, SDIL Case No. 09-cr-30050-MJR.
Johnson’s younger brother, Tommie, was “an alcoholic,” physically and mentally
handicapped, and received Social Security disability benefits. His older brother, Wardell,
was the only sibling who was not incarcerated and employed.
Despite all of the mitigating information in the PSR, Johnson faults Mr. Holmes
for not finding more. Johnson’s habeas counsel, Lee Lawless, conducted the
investigation that he says Mr. Holmes should have done and submitted approximately
130 pages of evidence to the Court. In particular, Mr. Lawless obtained affidavits from
Johnson’s wife, Nicole; two of his aunts, Ruthie Johnson Owens and Viola Foster; and
two of his cousins, Classie Butler and David Miller (Docs. 50-6, 50-8, 50-10, 50-14, 50-15).
Mr. Lawless sent an investigator to speak with Johnson’s brother Wardell, who is now
incarcerated (Doc. 50-5). Mr. Lawless also obtained a number of records, such as police
reports (Docs. 50-9, 50-11, 50-12, 50-16); records from Johnson’s grade school (Docs.
50-19, 50-20); a transcript of Johnson’s GED test results in 2010 (Doc. 50-23); correctional
records from Johnson’s incarcerations as a juvenile and an adult (Docs. 50-7, 50-13,
50-21); and records from the Social Security Administration related to Johnson’s award
of benefits (Docs. 50-24, 50-25). Mr. Lawless also had Johnson undergo two separate
psychological evaluations (Docs. 50-1, 50-2).
The Court has reviewed all of the new information that came out of Mr. Lawless’s
investigation. Some of it is irrelevant to Johnson’s sentencing, such as his father’s
military history, his father’s criminal record, and the specifics of his father’s death. Much
of the new information simply mirrors the information that was already before the
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sentencing judge; it is not significantly different in substance, only in volume and level
of detail. In other words, it simply fleshes out the details of Johnson’s social, academic,
and psychological history that were previously presented in more general terms. That
being said, some of the information presented by Mr. Lawless is arguably new. But as
discussed below, the undersigned is unconvinced that Johnson would have received a
lesser sentence had it been presented by Mr. Holmes to Judge Stiehl at the time of
sentencing.
First, Johnson submitted some new information regarding his early life. His aunts
attested that Johnson’s father threatened to kill his mother more than once, and one time
even put a gun to Johnson’s head while threatening his mother (Docs. 50-6, 50-8, 50-10).
Johnson’s brother attested that he and Johnson initially went to live with their aunt,
Viola Foster, after the death of their parents (Doc. 50-5; see also Doc. 50-8). Once their
grandmother recovered from her gunshot wound and was released from the hospital,
they moved in with her (Doc. 50-5; see also Doc. 50-8). Johnson’s brother said they left Ms.
Foster’s house because she had thirteen children of her own and was very physically
abusive (Doc. 50-5).1 Their grandmother, however, was too old to keep up with young
children and to properly supervise them (Docs. 50-5, 50-8). Johnson’s brother said their
grandmother would tell them what time to be home and then they would run free until
their curfew (Doc. 50-5). Johnson would skip school to hang out with older individuals
who sold drugs (Doc. 50-5). Additionally, during the habeas proceedings, Johnson
1
Johnson’s counsel wrote in his brief that “there were constant arguments and fighting” in Viola Foster’s
home, Johnson “was singled out for physical and mental abuse,” and he “ran away” from the house “[t]o
escape the abuse” (Doc. 50, p. 17). Counsel did not cite to a source for that information, however, and the
Court did not come across it in the record.
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reported at one of the psychological evaluations that he was sexually molested by an
older cousin when he was five or six years old, and when he was in juvenile detention,
he had to fight off older juveniles attempting to molest him (Doc. 50-2).
The Court finds this new information is of little value because it barely alters the
sentencing profile presented to the sentencing judge. The sentencing judge was already
aware that Johnson’s father was violent and extremely abusive. The sentencing judge
also knew that Johnson had a very traumatic and chaotic childhood, and he could easily
surmise that Johnson was neglected, or at least improperly supervised, given that he was
abusing alcohol and drugs and committing crimes before he even reached middle
school. As for the sexual abuse, Johnson was unable to provide any details about the
abuse, so the evidence is limited to his simple assertion that he was molested.
Johnson also submitted new information about his diminished intellectual
capacity. School records show that, at age eleven when he was in the fifth grade, he was
diagnosed as “learning disabled” because he had an auditory processing disorder,
which led to difficulties reading, spelling, writing, and speaking, and he was deemed
eligible for special education classes (Doc. 50-19). Within three years, Johnson was failing
all of his classes, was at least two or more years behind in reading, had been held back at
least once, and was frequently truant (Doc. 50-1; Doc. 50-20). Johnson reported at one of
the psychological evaluations that he had difficulty reading in school and the other kids
teased him for it, so he simply stopped going to school (Docs. 50-1, 50-2). Intelligence
testing performed when Johnson was an adult demonstrated that his intellectual
functioning was below normal (Docs. 50-1, 50-2, 50-25).
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This information simply provides background details for the information
presented in the PSR. It is not the type of information that alters the entire evidentiary
picture presented to the sentencing judge, who was already aware of Johnson’s
diminished intellectual capacity and his dismal educational experience.
Johnson also submitted new evidence regarding his mental and emotional
problems. His aunt, Viola Foster, attested that after the death of his parents, Johnson
became “anxious and very fearful,” and he started carrying a kitchen knife in his pocket
(Doc. 50-8). Other family members agreed that, after the death of his mother, Johnson
developed anger problems and had difficulty expressing his feelings (Docs. 50-5, 50-6,
50-8). As his brother put it, Johnson “seemed to snap.” (Doc. 50-5). At age thirteen, while
he was in juvenile detention, Johnson was evaluated, and it was noted that Johnson was
“in need of psychological counseling on an ongoing basis” (Doc. 50-7). The evaluator
stated that Johnson “puts up a ‘tough guy,’ street wise front,” but he “is a child full of
rage, fear and bitterness, very gullible and easily led by his older friends” (Doc. 50-7).
The evaluator further warned that “[w]ithout intervention, [Johnson’s] difficulties will
continue to be expressed in anti-social behavior” (Doc. 50-7). At age fourteen, he was
again evaluated in juvenile custody (Doc. 50-21). The psychologist diagnosed Johnson
with a “conduct disorder, undifferentiated type” and noted that Johnson “closed himself
off from his past experiences and, therefore, may be acting out to avoid having to think
about things” (Doc. 50-21). She further noted that “[o]n the other hand, he also seems to
have some antisocial features” that may be a result of “seeing the world in a very
negative viewpoint since the death of his mother” (Doc. 50-21). Johnson received mental
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health treatment a handful of times in juvenile custody, but it ended when he was
released (Doc. 50-22). The psychiatrist who performed the first evaluation of Johnson
during the habeas proceedings disagreed with previous evaluations that Johnson had
anti-social personality disorder or intermittent explosive disorder (Doc. 50-2). Instead,
he believed that Johnson’s dysfunctional behavior is a result of post-traumatic stress
disorder (Doc. 50-2). The psychologist who performed the second evaluation of Johnson
during the habeas proceedings reached a similar conclusion (Doc. 50-1).
This information certainly provides more background and details concerning
Johnson’s mental and emotional health; but once again, this is not the type of
information that alters the entire evidentiary picture presented to the sentencing judge.
The undersigned does not believe that the specific diagnosis Johnson received at any
given point in his life, or the soundness of that diagnosis in hindsight, is what matters.
What matters is that Johnson struggled throughout his life with psychological problems
that stemmed from his tremendously difficult childhood and contributed significantly to
his criminal history. The sentencing judge, without a doubt, understood that.
Finally, Johnson submitted new evidence that he has a history of head injuries
and loss of consciousness. During the habeas proceedings, Johnson reported at a
psychological evaluation that he fell out of a tree as a child and hit his head (Doc. 50-2).
He reported severe, chronic headaches following this fall, that continue to this day (Id.;
Docs. 50-13, 50-15, 50-25). Johnson’s cousin recalled that Johnson complained of severe
headaches as a child (Doc. 50-14). Johnson also reported at the psychological evaluation
that he sustained another head injury when he hit his head on a concrete building block
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after he was tased by police (Doc. 50-2). He further reported frequent “blackouts,”
during which he becomes numb and unresponsive for about ten seconds (Docs. 50-2,
50-25). He claimed he had been involved in three car accidents due to loss of
consciousness (Doc. 50-1). Police reports were submitted showing that in 2005, Johnson
blacked out while driving and ran his car into a utility pole (Doc. 50-15; 50-17). As a
result of that accident, his license was suspended for a year (Doc. 50-15; 50-18).
There is no indication that the sentencing judge knew of Johnson’s history of head
injuries and loss of consciousness. The purpose of this evidence is to imply that
Johnson’s head injuries caused his cognitive problems and perhaps a seizure disorder as
well. But there is no evidence as to when the first head injury occurred and whether it
predated Johnson’s learning problems in school. There is also no medical evidence of a
seizure disorder because Johnson did not receive medical care after either of his head
injuries or his 2005 car accident, and he has never had a comprehensive neurological
workup performed.
In sum, the new evidence submitted during these habeas proceedings is not so
starkly different in strength and subject matter that it alters the entire evidentiary picture
that was in front of the sentencing judge and seriously undermines the fairness and
integrity of Johnson’s sentence. And given Judge Stiehl’s comments at sentencing, it
seems quite clear that even if Rodney Holmes had presented all of this new evidence to
Judge Stiehl, it is unlikely to have tipped the scales in Johnson’s favor and resulted in a
lesser sentence. Judge Stiehl’s comments reveal that he considered the evidence of
Johnson’s background and saw some of it as mitigating. But Johnson’s “reprehensible”
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conduct throughout his life and his substantial criminal history showed that he
repeatedly failed to learn from his prior crimes and the lenient treatment he received for
those crimes. In sentencing Johnson to 300 months, Judge Stiehl placed considerable
emphasis on the need to punish Johnson, deter others, and protect the public from
further crimes by Johnson. As the Seventh Circuit stated, there was “merit to the district
court’s concern that giving a reduced sentence would not be in society’s best interest.”
United States v. Johnson, 624 F.3d 815, 823 (7th Cir. 2010). In light of these comments, it is
not reasonably probable that Johnson would have received a lesser sentence had Mr.
Holmes conducted further investigation as opposed to relying on the information in the
PSR.
B. Career Offender Classification
Johnson next claims that Rodney Holmes was ineffective when he failed to object
to inaccuracies in the PSR regarding Johnson’s classification as a career offender under
§ 4G1.1 of the Sentencing Guidelines (Doc. 50, pp. 49–54). To qualify as a “career
offender” under the Sentencing Guidelines, the offender must have been at least
eighteen years old at time of instant offense, the instant offense was a felony that was
either crime of violence or a controlled substance offense, and the offender had at least
two prior felony convictions for crimes of violence or controlled substance offenses. U.S.
SENTENCING GUIDELINES MANUAL § 4B1.1(a). Johnson makes no argument regarding the
first two factors for career offender status; rather, his argument focuses on the third
factor.
The PSR concluded that Johnson had five qualifying prior felony convictions:
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1. Robbery (case number 91-CF-1494);
2. Robbery (case number 92-CF-249);
3. Aggravated Battery (case number 96-CF-1872);
4. Aggravated Battery (case number 03-CF-2448); and
5. Unlawful Delivery of Controlled Substance (case number 07-CF-349)
United States v. Wendell Johnson, SDIL Case No. 3:09-cr-30025, Doc. 36, p. 6. According to
Johnson, the first predicate offense—a 1991 robbery—should not have been used as a
prior felony for career offender purposes because he did not receive any criminal history
points for this offense (Doc. 50, p. 50).2 Johnson also argues that the fourth predicate
offense—a 2003 aggravated battery, which charged that “he committed an act of an
offensive nature in that he touched the victim in an offensive manner in a public place of
accommodation”—should not have been used as a prior felony for career offender
purposes because it was not a crime of violence (Doc. 50, p. 51).3 But Mr. Holmes did not
See U.S. SENTENCING GUIDELINES MANUAL §§ 4B1.2(c), cmt. n.3, & 4A1.2(e). United States v. Womack, 610
F.3d 427, 431 n.4 (7th Cir. 2010) (“[T]he definitions for computing criminal history/points [in] U.S.S.G.
§ 4A1.2, also are used to count predicate convictions for purposes of U.S.S.G. § 4B1.1”); United States v.
Peters, 215 F.3d 861, 862 (8th Cir. 2000) (“To qualify as a ‘prior felony’ for career offender purposes, the
felony must receive criminal history points under subsection (a), (b), or (c) of 4A1.1.”)
2
An aggravated battery involving a forcible battery, meaning one that caused bodily harm, qualifies as a
crime of violence while an aggravated battery involving an offensive battery, meaning “physical contact of
an insulting or provoking nature,” in the presence of one or more aggravating factors, does not qualify as a
crime of violence. United States v. Johnson, 365 F. App’x 3, 5 (7th Cir. 2010) (prior Illinois conviction for
aggravated battery or making contact of an insulting or provoking nature in a public place was not a crime
of violence for purposes of the career offender guideline). See also United States v. Hampton, 675 F.3d 720,
730–31 (7th Cir. 2012) (prior Illinois conviction for aggravated battery for making insulting or provoking
physical contact with a peace officer was not violent felony for purposes of Armed Career Criminal Act);
United States v. Evans, 576 F.3d 766, 767 (7th Cir. 2009) (prior Illinois conviction for aggravated battery for
making physical contact of an insulting or provoking nature against a woman known to be pregnant was
not a crime of violence for purposes of the career offender guideline). But see United States v.
Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010) (prior Illinois conviction for aggravated battery for
committing battery on a public way was a crime of violence where PSR contained a summary of
state-court indictment that indicated defendant punched his victim in the face, and his attorney did not
3
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object to the use of these convictions as predicate offenses for the career offender
enhancement, and he did not object to the Government’s statement that Johnson was a
career offender “five times over” (Id. at p. 50). Johnson argues that because of Mr.
Holmes’s failure, he was “viewed as incorrigible and deserving of harsher punishment”
(Id. at p. 50). The Government did not respond to this argument (see Doc. 55).
Assuming that Johnson is correct, and Mr. Holmes’s performance was deficient
because he failed to object to these two convictions as predicate offenses for the career
offender enhancement, Johnson still cannot establish that he suffered prejudice. Even
without counting 1991 robbery conviction and the 2003 aggravated battery conviction as
predicate offenses, Johnson still would have qualified as a career offender by virtue of
his three other prior felony convictions involving violence or controlled substances and
accordingly “branded . . . a malefactor deserving of far greater punishment than that
usually meted out for an otherwise similarly situated individual who had committed the
same offense.” Narvaez v. United States, 674 F.3d 621, 629 (7th Cir. 2011) (cited by
Meirovitz v. United States, 688 F.3d 369, 373 (8th Cir. 2012)). “Any possible negative effect
of the additional prior conviction(s) . . . was at most marginal.” Murrell v. Frank, 332 F.3d
1102, 1120 (7th Cir. 2003).
Accordingly, there is no reasonable likelihood that but for Mr. Holmes’s failure to
object to the inclusion of the 1991 robbery and the 2003 aggravated battery as predicate
object to the accuracy of the summary); United States v. Silva, 583 F. App’x 546, 547 (7th Cir. 2014) (prior
Illinois conviction for aggravated battery was a crime of violence where PSR stated that defendant stabbed
a male victim with a knife, and defendant never objected to the summary of the charge in the PSR or
otherwise challenged the probation officer’s characterization of the conviction as a crime of violence).
Page 26 of 31
offenses for the career offender enhancement that Johnson would have received a lesser
sentence.
C. Failure to Argue for a Sentence Below the Career Offender Guideline
Johnson’s final argument is that Rodney Holmes was ineffective when he failed to
advance any number of “compelling” arguments for a lower sentence under § 3553(a)
(Doc. 50, pp. 54–62). In particular, Johnson claims that Mr. Holmes could have made the
following argument to the sentencing judge:
1) that the court had the discretion to impose a sentence below the career
offender range because it produced a sentence greater than necessary to
meet the purposes of sentencing (Doc. 50, p. 56);
2) that the career offender guidelines were unnecessarily harsh for
Johnson because his instant and prior drug offense involved small
quantities of drugs and because he received probation for his prior
drug offense (Doc. 50, p. 59);
3) that the career offender guideline was not developed through the
Sentencing Commission’s usual method of examining past sentencing
data and is not based on any empirical evidence (Doc. 50, p. 58);
4) that Johnson’s youth at the time of his predicate offenses reduces his
culpability and increases his potential for rehabilitation (Doc. 50, p. 59);
further, counsel could have argued that Johnson’s recidivism declines
with age (Doc. 50, p. 61);
5) that Johnson’s mental illness reduced the need for general deterrence,
made incapacitation by imprisonment less appropriate, and rendered
him less deserving of punishment (Doc. 50, p. 61).
Counsel “need not advance every conceivable argument . . . and assistance of
counsel is constitutionally ineffective only if counsel fails to raise issues that are
‘obvious’ and ‘clearly stronger’ than the ones raised.” Stribling v. United States, 142 F.3d
440 (7th Cir. 1998). A number of the arguments that Johnson claims Mr. Holmes should
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have made were, in fact, made by Holmes at sentencing. He made clear that the court
was free to impose a sentence below the career offender guideline range, and he argued
that the court should do so because the career offender guidelines resulted in “just
entirely too much punishment” in light of the small amount of drugs involved and
Johnson’s childhood and psychological problems. See United States v. Wendell Johnson,
SDIL Case No. 3:09-cr-30025, Docs. 37, 60. See supra at pp. 4–5.
That leaves arguments three and four. Argument four is a non-starter. Johnson
was not a youth at the time of two of his predicate offenses, which is all that is needed to
establish career offender status. Specifically, he was 29 years old when he pleaded guilty
to aggravated battery in Case 03-CF-2448. SDIL Case No. 3:09-cr-30025, Doc. 36, p. 11.
And he was 31 years old when he pleaded guilty to unlawful delivery of a controlled
substance in case 07-CF-349. Id. at p. 12. Furthermore, while recidivism rates typically
decline as offenders age, in Johnson’s case, statistics suggest there would be a better than
50% chance that he would commit further crimes.4 Accordingly, the Court concludes
that argument four is not a “strong” argument, and it cannot be said that Rodney
Holmes was ineffective for not making it.
4
Offenders with fourteen criminal history points, like Johnson had at the time of his sentence, have a
63.4% recidivism rate. U.S. Sentencing Comm’n, “Measuring Recidivism: The Criminal History
Computation of the Federal Sentencing Guidelines,” p. 23 (May 2004) (available at
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2004/2
00405_Recidivism_Criminal_History.pdf.). Male offenders with a criminal history category (“CHC”) of six
have a 56.3% recidivism rate. Id. at p. 28. Offenders who are between 31 and 35 years of age at the time of
sentencing and have a CHC of six have a 59.3% recidivism rate. Id. Offenders who are black and have a
CHC of six have a 60.7% recidivism rate. Id. Offenders with a CHC of six who were unemployed in the
year prior to their instant offense have a 54.5% recidivism rate. Id. at p. 29. Offenders with a CHC of six
who have less than a high school education at the time of the instant offense have a 59.5% recidivism rate.
Id. Offenders with a CHC of six who are legally married have a 57.9% recidivism rate. Id. Offenders with a
CHC of six who used illicit drugs in the year prior to their instant offense have a 56.7% recidivism rate. Id.
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The same goes for argument three. Judges are not required to address categorical
challenges to the guidelines. United States v. Schmitz, 717 F.3d 536, 542 (7th Cir. 2013)
(explaining that a blanket challenge to the guideline rather than one tailored to a
defendant’s unique characteristics and circumstances “is not one that the district judge
must explicitly address.”). See also United States v. Rivera-Santana, 668 F.3d 95, 101 (4th
Cir. 2012) (“Although a sentencing court may be entitled to consider policy decisions
underlying the Guidelines, including the presence or absence of empirical data . . . it is
under no obligation to do so.”); United States v. Aguilar-Huerta, 576 F.3d 365, 368 (7th Cir.
2009) (“[The judge] should not have to delve into the history of a guideline so that he can
satisfy himself that the process that produced it was adequate to produce a good
guideline.”). An argument can hardly be considered “strong” if the sentencing judge is
not even obligated to consider it, and therefore counsel cannot be considered deficient
for failing to make it. Furthermore, even if Rodney Holmes had made this argument,
Johnson cannot show a reasonable probability that he would have received a lesser
sentence. Judge Stiehl was aware of the advisory nature of the guidelines, but he
implicitly concluded that the career offender guideline should be applied in Johnson’s
case based on his “reprehensible” conduct throughout his life and his substantial
criminal history. SDIL Case No. 3:09-cr-30025, Doc. 60.
In sum, there is no reasonable likelihood that but for Mr. Holmes’s failure to make
the particular arguments outlined above that Johnson would have received a lesser
sentence.
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CERTIFICATE OF APPEALABILITY
Should Johnson desire to appeal this Court’s ruling dismissing his motion, he
must first secure a certificate of appealability, either from this Court or from the Court of
Appeals. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to § 2253, a certificate
of appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean that an
applicant must show that “reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Johnson need not show that his appeal will succeed, but he must show
“something more than the absence of frivolity” or the existence of mere “good faith” on
his part. Miller-El v. Cockrell, 537 U.S. 322, 337, 338 (2003). If the district court denies the
request, a petitioner may request that a circuit judge issue the certificate of appealability.
FED. R. APP. P. 22(b)(1)-(3).
For the reasons detailed above, the Court has determined that Johnson has not
stated any grounds for relief under § 2255, and reasonable jurists could not debate that
conclusion. Thus, Johnson has not made “a substantial showing of the denial of a
constitutional right,” and a certificate of appealability will not be issued.
CONCLUSION
The Government’s Motion to Strike Attorney Affidavits (Doc. 51) is GRANTED,
and Wendell Johnson’s Third Amended Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (Doc. 50) is DENIED. The Court DECLINES to issue a
Page 30 of 31
certificate of appealability.
This action is DISMISSED with prejudice, and the Clerk of Court is DIRECTED
to enter judgment accordingly.
IT IS SO ORDERED.
DATED: April 8, 2016
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge
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