Johnson v. USA

Filing 13

ORDER DISMISSING CASE, Denying 4 MOTION for Hearing, MOTION to Appoint Counsel filed by Louis E. Johnson, 3 MOTION for Discovery filed by Louis E. Johnson, Case association terminated. Signed by Chief Judge David R. Herndon on 8/5/2013. (kar)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LOUIS E. JOHNSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 13-cv-00237-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). Also pending before the Court is
Johnson’s motion to conduct limited discovery (Doc. 3) and Johnson’s motion for
an evidentiary hearing and to appoint counsel (Doc. 4). The government opposes
all the motions (Doc. 7). Johnson filed a reply (Doc. 11). Based on the record
and the applicable law, the Court DENIES all the motions.
On September 22, 2010, a federal grand jury indicted Johnson on one
count of possession of a firearm by an unlawful user of a controlled substance
and one count of possession of an unregistered firearm. On January 26, 2011,
Johnson

was

arraigned

and

released

on

a

$10,000

unsecured

bond.

Subsequently, on February 12, 2011, Johnson’s counsel filed a motion to
suppress the evidence of the firearms. On March 21, 2011, at a bond revocation
hearing, defendant’s bond was revoked after Probation found a controlled
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substance in Johnson’s residence during a visit. Following two continuances that
defendant requested, the Court held the suppression hearing on May 11, 2011.
After considering all the evidence and both parties’ arguments, the Court denied
defendant’s motion to suppress.
Following the Court’s denial of his suppression motion, Johnson entered a
plea of guilty on May 25, 2011. At his sentencing hearing on September 16, 2011,
the Court sentenced Johnson to 78 months’ imprisonment. Johnson timely filed
a notice of appeal on September 20, 2011. Johnson’s counsel filed an Anders
brief,1 asserting there were no non-frivolous issues to raise on appeal. In the
brief, counsel raised three issues to examine whether a non-frivolous argument
could be made that might offer relief to petitioner: (1) whether Johnson could
make a non-frivolous argument to appeal the denial of his motion to suppress,
despite his unconditional guilty plea; (2) whether Johnson could make any nonfrivolous arguments concerning the denial of his motion to suppress; and (3)
whether Johnson could make a non-frivolous argument that his sentence was
unreasonable when the Court imposed a sentence at the low end of the guidelines,
took into consideration petitioner’s advanced age, but found him to be a habitual
offender.
Johnson filed a response to his counsel’s Anders brief arguing there were
non-frivolous issues he could raise, specifically that the district court improperly

1

Based on Anders v. California, 386 U.S. 738 (1967), required before counsel
can be permitted to withdraw if he or she believes there are no non-frivolous
issues to be raised on appeal.
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conducted internet research on life expectancy relating to petitioner. The Seventh
Circuit granted counsel’s motion to withdraw and dismissed Johnson’s appeal.
On March 11, 2013, Johnson filed a motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and a memorandum in
support (Doc. 2). In his motion, Johnson claimed three grounds of ineffective
assistance of counsel: (1) because his counsel did not provide the Court localized
life expectancy data at Johnson’s sentencing hearing; 2) his guilty plea was
rendered involuntary due to his counsel’s ineffectiveness; and (3) his counsel
failed to raise on appeal the issue of the Court’s use of the internet during the
sentencing hearing.

On May 23, 2013, the United States filed its response to

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

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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
particular trial and potential prejudice that stemmed from that performance.
Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel

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claims, regardless of their substance, may be raised for the first time in a ' 2255
petition.
III.

Analysis

Life Expectancy Data
Petitioner claims in his first ground that his counsel was ineffective for
failing to provide the Court localized life expectancy data at Johnson’s sentencing
hearing. Johnson argues that his attorney should have introduced and provided
the Court with evidence of the life expectancy of a “70-year-old African-American
male from East St. Louis, who was a long-time narcotics abuser, and who was
from a family with a history of cancer and heart disease . . . “ for the Court’s
consideration in determining whether a sentence in the guideline range would be a
de facto life sentence.
The Sixth Amendment to the Constitution provides that “[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

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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 “highly 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 “Monday morning quarterback.” Harris v. Reed, 894 F.2d
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). “A 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 counsel’s failure to provide a life expectancy table
specific to his exact situation “forced the Court to seek out and determine [his] life
expectancy based upon national actuarial data that the Court, by its own
admission, did not understand.” Johnson claims that “this failure ultimately led

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this Court and the Court of Appeals to determine that a sentence of 78 months
was not a de facto life sentence based upon national averages.”
However, the Court of Appeals noted in its opinion, that the issue of
Johnson’s life expectancy was discussed “at length” by this Court at his
sentencing hearing. The Court of Appeals discussed the uncertainty of any life
expectancy table, noting that even “the most refined statistical calculation of
[Johnson’s] life expectancy

will leave

considerable

residual uncertainty.”

Ultimately, however, the Court of Appeals determined that this Court’s decision
not to give a below-guidelines sentence despite the defendant’s age, and the fact
that his attorney had argued for a shorter sentence, was not error and the
sentence was not a de facto life sentence. Moreover, Johnson has failed to show
any prejudice by his counsel’s failure to provide a more specific life expectancy
table to the Court since he has failed to demonstrate that the outcome of his
sentencing would have been any different but for counsel’s inaction.

See

Strickland, 466 U.S. at 694.
Further, Johnson’s counsel, in his Anders brief, noted that this Court paid
attention to defendant’s age in relation to his life expectancy, but finally
determined that defendant’s criminal history did not warrant a below-guidelines
sentence. Although Johnson conjectures that a more specific life expectancy table
would show him to have a lower than average life expectancy, which might render
his sentence a de facto life sentence, he fails to provide any evidence of his
hypothesis. Thus, Johnson’s claim is without merit.

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Johnson’s Guilty Plea
Johnson next argues that his guilty plea was not voluntary because his
counsel failed to explain to him that he was waiving his right to appeal the
suppression hearing by entering an open guilty plea.

He claims that had he

known that, “he would have never agreed to an unconditional guilty plea, and
would have rather insisted on pleading guilty to a conditional plea agreement.”
However, Johnson provides no evidence that the government offered or would
have offered him a conditional plea agreement. Furthermore, by defendant not
agreeing to a conditional plea agreement, had one been offered to him, defendant’s
counsel was able to argue for a lower than guidelines sentence, based on
defendant’s advanced age.

Simply because this Court was not persuaded by

Johnson’s counsel to sentence Johnson to a lower than guideline-range sentence,
does not make counsel’s actions rise to the level of ineffective assistance of
counsel under the test.

See Strickland, 466 U.S. at 694. Johnson’s argument

that the outcome of his plea process would have been different is merely
speculative and not based on any evidence before this Court.
Court’s Internet Usage
Johnson’s final claim of ineffective assistance of counsel is that his attorney
did not raise the issue on appeal of this Court using the internet during
sentencing. This claim is also without merit. In the Anders brief that Johnson’s
counsel filed with the Court of Appeals, he conceded that Johnson’s sentence was
reasonable.

This Court sentenced Johnson to the lowest end of the guideline

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range. Johnson raised this issue in his response to the Anders brief. However,
he failed to demonstrate that he was prejudiced within the Strickland meaning.
Johnson would have to show that had his attorney raised this issue on appeal,
there is a reasonable probability that the result of his appeal would have been
different.

See Strickland, 466 U.S. at 694. Johnson failed to offer any evidence

that the Court of Appeals would not have allowed Johnson’s attorney to withdraw
if he had raised this issue on appeal.

In fact, the Court of Appeals refers to

internet sources regarding life expectancy in its opinion. In its discussion, the
Court of Appeals references the Census Bureau’s life expectancy table, which was
one of the same tables this Court used during sentencing.

After a lengthy

discussion of the meaning and use of life expectancy tables, the Court of Appeals
concluded that, in this case, “the defendant's age and physical condition do not
make his sentence a de facto life sentence.” Thus, it is clear that the outcome of
Johnson’s appeal would not have been any different if his attorney had raised the
issue of this Court’s use of the internet to research life expectancy tables during
the sentencing hearing.
Motion To Conduct Limited Discovery
In this motion, Johnson seeks this Court’s permission to retain an actuarial
scientist from Northwestern University to provide the Court with a life expectancy
table that would correspond more specifically to defendant’s family history and
lifestyle characteristics. However, Johnson fails to provide the Court with any

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evidence that this would demonstrate his sentence was de facto, a life sentence.
Therefore, the Court DENIES this motion.
Motion For An Evidentiary Hearing and To Appoint Counsel
A district judge is not required to grant an evidentiary hearing in a § 2255
case when “the record standing alone conclusively demonstrates that a petitioner
is entitled to no relief.” Daniels v. United States, 52 F.3d 290, 293 (7th Cir.
1995) (citing Humphrey v. United States, 896 F.2d 1066, 1070 (7th Cir. 1990)).
If it appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss
the motion for an evidentiary hearing.

Almonacid v. United States, 476 F.3d

518, 521 (7th Cir. 2007).
Here, petitioner has not demonstrated that he is entitled to any relief. His
claims are speculative at best, and show no specific factual allegations that would,
if proven, entitle him to relief. See Hutchings v. United States, 618 F.3d 693,
699-700 (7th Cir. 2010). Therefore, the Court DENIES Johnson’s motion for an
evidentiary hearing.
As to Johnson’s request for appointment of counsel, there is no
constitutional right to counsel in a § 2255 civil proceeding.

Oliver v. United

States, 961 F.3d 1339, 1343 (7th Cir. 1992). Only if an evidentiary hearing is
required is a petitioner entitled to appointment of counsel. Id. Otherwise it is
within the Court’s discretion to appoint counsel. Id.

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Here, the Court finds no merit in Johnson’s claims, and notes that Johnson
adequately presented his claim to this Court. Additionally, the record, standing
alone, does not show that petitioner is entitled to relief. Thus, the Court DENIES
petitioner’s motion to appoint counsel.
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
with prejudice this cause of action. The Court ORDERS the Clerk of the Court
to enter judgment reflecting the same. The Court also DENIES Johnson’s motion
to conduct limited discovery (Doc. 3) and DENIES Johnson’s motion for an
evidentiary hearing and to appoint counsel (Doc. 4).

Further, the Court

DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
Signed this 5th day of August, 2013.

David R.
Herndon
2013.08.05
16:48:42
-05'00'
Chief Judge
United States District Court

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