Johnson v. USA

Filing 27

ORDER: For the reasons set forth in the attached Memorandum and Order, Petitioner Johnson's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 ) is DENIED and his case is DISMISSED with prejudice. The Clerk of the Court is DIRECTED to enter judgment accordingly. Further, no certificate of appealability shall issue. Signed by Chief Judge Michael J. Reagan on 4/27/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMARCUS O. JOHNSON,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant. )

Case No. 15-CV-1070-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
1. Introduction/procedural posture
This matter comes before the Court after an evidentiary hearing on Petitioner
Demarcus Johnson’s habeas corpus petition, filed under 28 U.S.C. § 2255 (Docs. 1, 7).
The Court appointed counsel for Petitioner Johnson pursuant to Administrative Order
176 because the petition potentially presented issues related to then-recent Supreme
Court precedent. After briefing by appointed counsel, a response by the Government,
and multiple amendments to account for rapidly changing precedent, the parties agreed
that an evidentiary hearing was necessary to resolve the ineffective assistance of counsel
portion of Petitioner Johnson’s habeas petition (See Docs. 11, 16, 17). The other aspect of
the petition was a claim for sentencing relief based on Petitioner Johnson’s classification
as an armed career criminal—an issue which was set aside for purposes of the
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evidentiary hearing. The Court has now conducted the hearing, and in the interim the
Supreme Court has also ruled on the armed career criminal act issue pending in this
case. Accordingly, the following analysis disposes of both issues raised by Petitioner
Johnson, finding that he is not eligible for relief on either basis.
2. Facts
On March 4, 2014, Petitioner Demarcus Johnson was charged via a single-count
grand jury indictment with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C) (See CM/ECF, S.D. Ill., Case No. 14-30047, Doc. 1). He pled guilty via a
plea agreement and stipulation of facts on August 13, 2014 (Id. Docs. 26, 27). Following
a presentence investigation report, and an opportunity for counsel to object, Petitioner
Johnson was sentenced on November 14, 2014 to a term of imprisonment (See id. Doc.
37). Throughout his criminal case, Petitioner Johnson was represented by attorney
Harry Anderson. Following sentencing, a direct appeal was not filed.
In March of 2015 Petitioner Johnson moved for the production of legal documents
from his criminal case (See id., Doc. 44). Subsequently in September of 2015 Petitioner
Johnson filed his habeas corpus petition seeking relief from his sentence based on
ineffective assistance of counsel, and his classification as a career offender under the
Sentencing Guidelines (Docs. 1, 11). In relation to his ineffective assistance of counsel
claim, Petitioner Johnson argued that his trial counsel (Harry Anderson) did not

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thoroughly review his plea agreement with him, did not show him the presentence
investigation report, and did not file an appeal despite being told to do so (Doc. 11 at 16). The Government responded to this claim with an affidavit from attorney Harry
Anderson wherein he indicated that he did not fail or refuse to file an appeal (Doc. 5-3).
Based on these direct contradictions, the parties sought an evidentiary hearing.
Petitioner Johnson’s habeas petition also included the claim that his sentence,
pronounced in part based on the armed career criminal provisions of the Sentencing
Guidelines, was constitutionally infirm based on a logical extension of Supreme Court
precedent—namely Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that the
residual clause of the ACCA was unconstitutionally vague) and United States v.
Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (overruling prior circuit precedent
foreclosing vagueness challenges to the guidelines and holding that the residual
clause in § 4B1.2(a)(1) is unconstitutionally vague); United States v. Rollins, 836 F.3d
737, 743 (7th Cir. 2016) (holding that the application note to the residual clause of §
4B1.2(a) that listed certain crimes as predicates for career offender classification has
no independent legal authority and is thus unconstitutional in line with Hurlburt’s
holding). When making a request for an evidentiary hearing, the parties set this issue
to the side because the timeliness and merits of the claim rose or fell with a thenpending Supreme Court case, Beckles v. United States, 2017 WL 855781, No. 15-8544,

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slip op. (S.Ct. March 6, 2017) (overruling Hurlburt).
The Court held an evidentiary hearing on April 6, 2017, to gather evidence on the
ineffective assistance of counsel claim. Petitioner was present and was represented by
appointed counsel, Dan Cronin. Petitioner testified on his own behalf. He stated that
his trial counsel, Harry Anderson, did not fully advise him as to the terms and
implications of the plea agreement. Though he admitted that Anderson visited him and
spoke to him on the phone multiple times while he was in pre-trial detention, Petitioner
Johnson did not feel that he was fully advised on the plea agreement. He indicated that
at his plea colloquy he did not verbalize his concerns to the Magistrate Judge who
accepted the plea and rendered a report and recommendation that was accepted by the
undersigned because Anderson warned him the deal could fall apart if he did so.
Following the plea, he claims he never had a chance to see his presentence
investigation report until he was in Bureau of Prisons (”BOP”) custody. He testified
that at sentencing he did not express any concerns about that report or his plea to the
Court because Anderson had convinced him that it would be best to just agree to
whatever the judge said. After sentencing he thought Anderson was going to visit him
in the ‘bull pen’ holding area of the courthouse, but Anderson never came. He asked
Anderson to file an appeal on his behalf, but did not learn that Anderson never filed
one until sometime in 2015.

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The Government called Harry Anderson as a witness. Anderson testified that he
reviewed the plea agreement and presentence investigation report thoroughly with
Petitioner Johnson at the appropriate times during the proceedings. He stated that he
did visit Johnson after sentencing in the ‘bull pen’ area. He advised Johnson that given
the terms of the plea agreement it probably would not be advisable to appeal his
sentence, but he did not refuse to file an appeal. Johnson never asked him to appeal the
matter.
3. Legal Analysis
“An evidentiary hearing on a § 2255 motion is required unless the record
“conclusively show[s] that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
Ineffective assistance claims often require an evidentiary hearing because they
frequently allege facts that the record does not fully disclose. See Shaw v. United States,
24 F.3d 1040, 1043 (8th Cir. 1994).

Further, they generally require an evidentiary

hearing if the record contains insufficient facts to explain counsel's actions as tactical.”
Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008).
A habeas petitioner’s claim that counsel's assistance was so defective as to require
reversal of a conviction or death sentence has two components. First, the petitioner
must show that counsel's performance was deficient. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This requires showing that

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counsel made grave errors, errors so serious that the representation fell below the Sixth
Amendment standard.

Id.

Second, the petitioner must show that the deficient

performance prejudiced the defense. Id. This requires showing that counsel's errors
were so serious as to deprive the then-defendant of a fair trial, a trial whose result is
reliable. Id. A claim is only viable if petitioner makes both showings Id.
Judicial scrutiny of counsel's performance is highly deferential.
It is all too tempting for a defendant to second-guess counsel's assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable. […]
Id. The court must “indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’”

Id. A wide-variety of representation can be

effective because even the best criminal defense lawyers may differ in opinion as to how
to best handle a case. Id. at 689–90.
At an evidentiary hearing, the district court possesses broad discretion to evaluate
the credibility of contradictory testimony. See Gant v. United States, 627 F.3d 677, 68182 (7th Cir. 2010). When a defendant asks an attorney to pursue a direct appeal and the
attorney does not do so, it is per se ineffective assistance of counsel. Id. at 681, citing
Kafo v. United States, 467 F.3d 1063, 1069 (7th Cir. 2006). However, to succeed on such
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a claim, a petitioner must show that he actually requested his attorney file an appeal.
Gant, 627 F.3d at 681, citing Castellanos v. United States, 26 F.3d 717, 719 (7th Cir.
1994).
With regard to a plea agreement, counsel is required to advise a client of the pros
and cons of an agreement within the bounds of reasonableness and prevailing
professional norms. See Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010) (finding that
reasonable counsel must advise a client of the potential deportation consequences of
a plea). As a part of this duty, defense counsel must of course relay formal plea offers
from the prosecution to the client, providing an opportunity for the client to accept
favorable terms and conditions. See Missouri v. Frye, 566 U.S. 133, 145 (2012). So long
as counsel’s advice on a plea was “within the range of competence demanded of
attorneys in criminal cases” the plea can stand as voluntary and intelligent. See Hill v.
Lockhart, 474 U.S. 52, 56 (1985).
“Prejudice in the context of a guilty plea requires a showing that but for counsel's
deficient performance, [petitioner] would not have pleaded guilty.

However, this

analysis takes place in the context of the presumption that an attorney's conduct is
reasonably proficient.” Galbraith v. United States, 313 F.3d 1001, 1008 (7th Cir. 2002).
(internal cites omitted).
Here, the Court heard testimony from Petitioner and his trial counsel Harry

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Anderson. The Court found Anderson’s account of the facts to be more credible than
Petitioner’s. Petitioner testified that he lied at the time of his plea colloquy and his
sentencing by not advising the presiding judges of his concerns about the plea
agreement or recommended sentence, but he offered no assurance that his old
testimony was a lie and his new testimony was credible aside from his own word. He
also testified that Anderson failed to visit him in the ‘bull pen’ or to file an appeal.
By contrast, attorney Anderson’s testimony at the evidentiary hearing was
consistent with the series of events that allegedly took place surrounding plea
negotiations, sentencing, and a possible appeal. Anderson testified that he advised
Petitioner Johnson of the pros and cons of the plea agreement itself, as well as the
potential consequences of appealing his ultimate sentence. Anderson said he visited
Petitioner in the bull pen.

Anderson’s representation was within the bounds of

reasonableness. Accordingly, this Court finds that Anderson was not ineffective in his
representation, and Petitioner is not eligible for relief on this basis.
Turning briefly to Petitioner Johnson’s other contention, that his sentence as a career
criminal was constitutionally infirm, this argument necessarily fails.

The Supreme

Court recently held that the career criminal provisions of the Sentencing Guidelines are
not constitutionally infirm. See Beckles, 2017 WL 855781, No. 15-8544, slip op. (S.Ct.
March 6, 2017). Thus, Petitioner is not entitled to relief on this basis.

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4. Certificate of Appealability
Under Rule 11(a) of 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.” Thus, the Court must determine whether Petitioner’s
claims warrant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
A certificate of appealability is required before a petitioner may appeal a district
court’s denial of his habeas corpus petition. A petitioner is entitled to a certificate of
appealability “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 could debate whether…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)).
Here, the undersigned finds no basis for a determination that the Court’s instant
decision to dismiss petitioner’s claims is debatable or incorrect. For the reasons stated
above, petitioner asserted two meritless claims that reasonable jurists would conclude

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provide no basis for relief. Therefore, the Court declines to certify any issues for review
pursuant to 28 U.S.C. § 2253(c).

5. Conclusion
Based on the foregoing analysis, Petitioner Johnson’s motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED and his case is
DISMISSED with prejudice. The Clerk of the Court is DIRECTED to enter judgment
accordingly. Further, no certificate of appealability shall issue.
IT IS SO ORDERED.
DATED: April 27, 2017

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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