Johnson v. United States of America
Filing
11
ORDER DENYING 1 28 U.S.C. Section 2255 petition and DISMISSING CASE with prejudice. Further, the Court DECLINES to issue a certificate of appealability. The Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 6/5/15. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THETIS L. JOHNSON,
Petitioner,
v.
Civil Case No. 14-cv-474-DRH
Criminal Case No. 99-cr-30022-DRH-8
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM & ORDER
HERNDON, District Judge:
This matter is before the Court on petitioner Thetis L. Johnson’s motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). The
government filed a response in opposition of the motion (Doc. 7). For the
following reasons, petitioner’s motion for relief pursuant to 28 U.S.C. § 2255
(Doc. 1) is DENIED 1.
I.
Introduction and Background
Petitioner Thetis L. Johnson was convicted of drug crimes in 1999. This
Court sentenced Johnson to 168 months’ imprisonment and 5 years’ supervised
1
Having examined the record, the Court concludes Johnson’s claims do not warrant an
evidentiary hearing. See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002)
(“for a hearing to be granted, the petition must be accompanied by a detailed and specific
affidavit which shows that the petitioner [has] actual proof of the allegations going beyond
mere unsupported assertions”); Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir.
2000) (held that a hearing not required where the record conclusively demonstrates that
defendant is not entitled to relief on § 2255 motion); see also Rules 4(b) and 8(a) of Rules
Governing Section 2255 Proceedings).
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release. In 2010, petitioner was released from prison and began serving his term
of supervised release on June 21, 2010 (USA v. Johnson et al., 99-cr-30022, Doc.
587). On September 26, 2011, after violating the original terms of his supervised
release, Johnson agreed to a modification of the terms of his supervised release,
to include radio frequency monitoring and home detention,
Johnson’s violations, which led to the modification, included 1) failing to
comply with drug testing, 2) failing to notify probation about law enforcement
contact, 3) failing to submit monthly reports in a timely manner, 4) failing to
respond truthfully to his probation officer’s questions and statements, and 5)
failing to make all required payments on his court imposed fine. (USA v. Johnson
et al., 99-cr-30022-8, Doc. 677).
Subsequent to those violation, Johnson was arrested for attempting to pass
counterfeit bills at a Washington Park, Illinois Hustler Club that he received
following a sale of marijuana (USA v. Johnson et al., 99-cr-30022-8, Doc. 772).
The counterfeit bill discovery was reported to police by the manager of the Hustler
Club after they were discovered when Johnson attempted to make change. The
manager believed the bills to be counterfeit, so police were called to the club to
speak with the suspect, later identified as Johnson. Officer Allen Bonds, the
officer on the scene, spoke with Johnson and notified him of the situation. Officer
Bonds asked Johnson if he had any more counterfeit bills, in addition to those
already confiscated. Johnson admitted that he did, at which time the men stepped
outside the club to speak further and Johnson agreed to empty his pocket of a
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large sum of bills placing them on the trunk of a nearby vehicle. (Doc. 783, p. 56). The incident led to Johnson’s arrest .
Shortly thereafter, on April 18, 2013, the United States Probation Office for the
Southern District of Illinois filed a petition seeking the revocation of Johnson’s
federal supervised release pursuant to 18 U.S.C. § 3583 for violations of his
release terms, including those related to that June 8, 2012 arrest (Crim. Doc.
756). This Court revoked Johnson’s supervised release and imposed 48 months
additional imprisonment to be followed by 12 months of supervised release.
At the final revocation proceeding, petitioner denied allegations that he
committed the offenses of distribution of marijuana and uttering counterfeit
obligations or security, but admitted all other accusations (Id.). Ultimately the
Court found Johnson committed the violations; Johnson had received the
counterfeit money when he sold marijuana.
In addition to the 48 months of additional imprisonment to be followed by 12
months of supervised release, the Court included a search authorization as a
special condition of supervised release. It is the search condition that Johnson
appealed, and which the Seventh Circuit affirmed as a “reasonably necessary”
condition under the facts of this case on October 23, 2013. United States v.
Johnson, 542 Fed.Appx. 516 (7th Cir. 2013).
In his § 2255 petition, Johnson raises various claims of ineffective assistance
of counsel pertaining to his revocation hearing (Doc. 1). The Court notes that the
Federal Public Defender, Thomas C. Gabel represented Johnson over the course
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of his revocation proceedings and subsequent appeal (Doc. 7-1). In his current
petition, Johnson is specifically “seeking a new hearing and ask[s] this court to
vacate sentence” on the basis of ineffective assistance of counsel (Doc. 1).
II.
Law
A prisoner may move to vacate, set aside or correct his sentence if he
claims “the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255 is an extraordinary remedy because it asks the district court
“to reopen the criminal process to a person who has already had an opportunity
for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Accordingly, relief under Section 2255 is “reserved for extraordinary situations,”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v.
Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to
Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481
F.3d 932, 935 (7th Cir. 2007).
Thus, unless a movant demonstrates changed circumstances in fact or law,
he may not raise issues already decided on direct appeal. Olmstead v. United
States, 55 F.3d 316, 319 (7th Cir. 1995).
Further, a petitioner 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
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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). Likewise, a Section 2255 motion cannot pursue
nonconstitutional 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 Section 2255 context is if the alleged
error of law represents “a fundamental defect which inherently results in a
complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185
(1979).
Johnson raises various claims of ineffective assistance of counsel.
Importantly, the Supreme Court has held that the usual procedural default rule
does not generally apply to such claims as, “an ineffective-assistance-of-counsel
claim may be brought in a collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.” Massaro v. United
States, 538 U.S. 500, 504 (2003).
To succeed on an ineffective assistance of counsel claim, a petitioner must
demonstrate (1) his attorney’s performance “fell below an objective standard of
reasonableness,” and (2) “but for counsel’s unprofessional errors the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984). To satisfy the first prong, “the Court must determine whether, in
light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.” Id. at 690.
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To satisfy the
second prong, a petitioner must demonstrate to a “reasonable probability” that
without the unprofessional errors, “the result of the proceeding would have been
different.” Id. at 696.
A district court’s analysis begins with a “strong presumption that the
defendant’s attorney rendered adequate representation of his client.” United
States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a petitioner must
overcome a heavy burden to prove that his attorney was constitutionally deficient.
Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006).
III.
Application
1. Ineffective Assistance of Counsel
Johnson has clearly not met his burden under either prong of Strickland.
Johnson believes that his specific arguments and strategies would have had more
success than those his counsel pursued. However, counsel is not ineffective for
failing to raise every non-frivolous argument or available to him. In this Court’s
opinion, effective assistance generally requires focus on the strongest arguments
available. Nevertheless, Johnson’s specific arguments would have not changed the
outcome at his revocation hearing. Additionally, to reiterate the laws of this
Circuit, the court begins it’s analysis of an ineffective assistance of counsel claim
with a “strong presumption that the defendant’s attorney rendered adequate
representation of his client.” Meyer, 234 F.3d at 325.
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a. Failure to Suppress Evidence: Claims 1-3
Petitioner’s first grounds for relief are based on Johnson’s assertions of
ineffective performance of his attorney surrounding Johnson’s revocation
proceeding. Petitioner’s claims specifically allege that defense counsel failed to
advise him on the legality of the search of his person, failed to file a pre-trial
suppression motion for evidence seized during an allegedly unlawful search, and
failed to object to the admission of the unlawfully seized evidence at the
revocation hearing.
However, as the government points out in its response to petitioner’s
claims, Seventh Circuit precedent finds the exclusionary rule to be inapplicable to
revocation proceedings. See United States v. Hill, 447 F.2d 817, 819 (7th Cir.
1971). The Seventh Circuit reaffirmed Hill in United States v. Steinmetz, 974
F.2d 1340 (7th Cir. 1992), when it considered a possible exception for those
defendants targeted by an arresting officer based on their supervised release
status. However, the Seventh Circuit noted that the possible exception “would not
apply in this case since [defendant] presented no evidence that the arresting
officer “targeted” [defendant] because of his status as a supervised release.”
United States v. Steinmetz, 974 F.2d 1340 (7th Cir. 1992). The same holds true
for Johnson in the case at issue, as he neither alleged nor presented evidence of
being targeted by Officer Bonds based on his supervised release status. Bonds
“was dispatched to the Hustler Club…in reference to a male subject passing
counterfeit bills.” Nothing in the evidence suggests that defendant was targeted for
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any reason other than his illegal activity. Accordingly, the exclusionary rule
remains inapplicable to the revocation proceeding and defense counsel’s actions
qualify as objectively reasonable under the first prong of Strickland. Any effort to
exclude the evidence, whether via objection or motion, would thus have proven
futile. Moreover, petitioner failed to present any evidence to overcome the Meyer
presumption of adequate representation by Mr. Gabel. 234 F.3d at 325.
Johnson also challenges the adequacy of his trial counsel's representation
for failing to contest the illegality of the “search” of Johnson’s person at the time
of his arrest resulting in the discovery of a considerable amount of cash. Johnson
claims that the alleged search was unlawful, the bills discovered during said
search were “unlawfully seized evidence” and “the consent to search and the socalled confession were obtained only after police made a threat to kill him.” (Doc.
1, p. 3).
Ultimately, Johnson argues that his consent was forced. However, given the
affidavit of Assistant Public Defender Thomas C. Gabel attached to the
government’s response, Johnson never disclosed that Officer Bond threatened to
kill him if he refused to consent to a search at any time during the revocation
process or the appeal (Doc. 7-1). Additionally, Johnson never brought up this
alleged threat at his revocation proceeding, even when provided an opportunity to
speak to Judge Herndon directly on the record at the revocation proceedings
(Doc. 783, p. 52, lines 6-10). Johnson also failed to put forth any evidence of this
alleged threat. Instead of discussing the threat with his attorney, probation officer,
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or the sentencing judge, it came to light only at the rather convenient time of filing
his § 2255 petition. Accordingly, petitioner’s claims are patently frivolous given
the affidavit and no other evidence to support the alleged threat.
Furthermore, nothing in the evidence supports petitioner’s allegation that
the search was illegal. In fact, even if exclusionary rule were applicable to this
revocation proceeding, which it was not, the evidence obtained on June 8, 2012,
was still properly obtained by law enforcement, as defendant willingly provided
the counterfeit bills when asked. He consented immediately by removing the bills
from his pockets when first asked. At the revocation hearing, Officer Bonds even
stated, “I advised him of the situation, what was going on, and the reason why I
was there, and I asked him did he have any more [counterfeit bills]. He stated,
yeah, he did, and I said, Well, let’s step over to the security guard’s car, which was
positioned like right outside the front door to the right of the building. We got
there and he emptied his left pocket and placed a large sum of bills onto the trunk
of the vehicle.” (Doc. 783, p. 5-6). When a person consents to a search, an
exception arises allowing evidence obtained during said search to be admissible.
United States v. Strache, 202 F.3d 980, 984 (7th Cir.2000). Therefore, defense
counsel’s decision to refrain from filing a pre-trial suppression motion for the
evidence seized, in addition to his decision to refrain from objecting to the
admission of the evidence were reasonable under Strickland.
Petitioner’s sought-after motion and objections would have had no bearing
on the evidence’s presentment at petitioner’s revocation hearing, as the
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exclusionary rule not applying to revocation procedures. See Pennsylvania Board
of Probation & Parole v. Scott, 524 U.S. 357, 365(1998) (rule inapplicable to a
probation revocation); Hill, 447 F.2d at 819. Therefore, defendant failed to
establish good cause for or actual prejudice from defense counsel’s failure to
make the motion or raise the objection regarding the admission of the evidence
seized under the second prong of Strickland, as any attempt to suppress the
evidence would have been unsuccessful. Moreover, the Seventh Circuit has stated
that “[f]ailure to raise a losing argument… does not constitute ineffective
assistance of counsel.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996)(citing
Strickland, 466 U.S. at 687). Ultimately, Johnson cannot establish that counsel’s
decisions worked to his prejudice. Thus, Johnson’s first three grounds for relief
are without merit.
b. Failure to Request a Franks Hearing: Claim 4
Johnson’s fourth claim argues that Mr. Gabel was ineffective for failing to
“request a Franks hearing on Officer Bonds’ testimony” (Doc. 1). Johnson claims
that Officer Bonds lacked the requisite training to testify about the counterfeit
money, and the “Officer lie[d] under oath about the money being fake” (Doc 1, p.
4). However, as the government correctly highlighted, a Franks hearing is used to
challenge the veracity of a search warrant affidavit, not the testimony of an officer
on the stand. Franks v. Delaware, 438 U.S. 154, 156 (1978).
In this case, Johnson’s attorney was given the opportunity to challenge the
legitimacy of Officer Bonds’ testimony during cross-examination, which he took
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full advantage of. Mr. Gabel questioned Bonds’ professional history relating to his
lack of formal training in the detection of counterfeit money. He also highlighted
past indiscretions as a way to challenge the officer’s credibility, which Gabel
investigated entirely prior to the hearing (Doc. 7-1, ¶ 8).
As defense counsel is not obligated to request a Franks hearing, nor was
one appropriate to challenge Officer Bond’s testimony, petitioner’s claim fails the
first prong of Strickland. It is not professionally unreasonable for an attorney
vested with discretion to decide how to challenge a witness’s credibility. Thus, in
this instance, the approach chosen by Mr. Gabel was objectively reasonable under
the first prong of Strickland. Petitioner also failed to show any prejudice under
Strickland’s second prong because a Franks hearing is used to challenge the
veracity of a search warrant affidavit, and would have been inappropriate in this
instance. Accordingly, Johnson’s fourth ground for relief is meritless.
IV.
Under Rule 11(a) of
Certificate of Appealability
THE
RULES GOVERNING SECTION 2255 PROCEEDINGS, the
“district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” A habeas petitioner does not have an
absolute right to appeal a district court’s denial of his habeas petition; he may
appeal only those issues for which a certificate of appealability has been granted.
See Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). For a court
to issue a certificate of appealability, a petitioner must make a “substantial
showing of the denial of a constitutional right,” meaning, “reasonable jurists could
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debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); 28 U.S.C. §
2253(c)(2).
For the reasons stated above, Johnson’s claims do not warrant a certificate
of appealability, as reasonable jurists would agree that the petition should not
receive encouragement to proceed further. Therefore, the Court DENIES Johnson
a certificate of appealability.
V. Conclusion
For the reasons as discussed herein, Johnson’s motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence, is DENIED (Doc. 1). Johnson’s
claims are dismissed with prejudice. The Court shall not issue a certificate of
appealability. Furthermore, the Clerk is instructed to close the file and enter
judgment accordingly.
IT IS SO ORDERED.
Signed this 5th day of June, 2015.
Digitally signed by
David R. Herndon
Date: 2015.06.05
01:56:57 -05'00'
United States District Judge
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