Johnson v. USA

Filing 3

MEMORANDUM AND ORDER denying 80 Motion to Vacate (2255) as to Avaun Johnson IN CRIMINAL CASE 14CR429. Signed by Judge Marvin J. Garbis on 7/20/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA

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vs.

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AVAUN JOHNSON
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CRIMINAL NO. MJG-14-0429

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MEMORANDUM AND ORDER
The Court has before it Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence [Document 80].

The Court finds a

hearing unnecessary.

I.

BACKGROUND
The Indictment charges Defendant Avaun Johnson (referred to

herein as “Petitioner” or “Johnson”) with three federal offenses
committed on February 7, 2014, that are related to a shooting
that had occurred almost a month earlier.
On January 21, 2014, Mr. Seifullah Bridges (“Bridges”) was
shot multiple times, allegedly by Petitioner Avaun Johnson.1

The

shooting took place in or near 960 President Street in
Annapolis, and the shooter left him bleeding on the sidewalk
nearby.
Investigator John Murphy of the Annapolis Police Department
investigated and prepared an Investigative Report [ECF No. 86-3]
1

Johnson was indicted in state court on the shooting
charges, was tried and acquitted.
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in which he described Bridges’ statements about a trip to
Philadelphia where he met a man whom he named as “Naw” or “Pop”
(who turned out to be Johnson), how the two later agreed to meet
in Annapolis on January 21, and the events leading to the
shooting.

On January 27, Bridges identified a photo of Johnson

as a photo of the man who shot him but would not sign it then
and asked Murphy to come back the next day. On January 28th,
Murphy returned to see Bridges who was then represented by
counsel and did not then look at the photo or make any
identification.

On January 30, Bridges’ attorney contacted

Murphy and agreed to let Bridges look at photos.
Murphy met with Bridges and his attorney.

On February 6,

Bridges then

identified a photograph of Johnson as a photo of the man who
shot him and signed a document confirming the identification.
On February 7, 2014, Annapolis police officers went to
Johnson’s apartment to execute a state arrest warrant. The
officers saw Petitioner leaving the apartment carrying a trash
bag.

When Johnson saw the police officers he returned to his

apartment and dropped the bag inside.

Soon thereafter Johnson

was taken into custody and the police found that the bag
contained a substance they suspected to be marijuana. Johnson
was taken to the police station and spontaneously said “I’m
f**ked. They are going to search and find the gun, and I’m a
2

convicted felon with a handgun.”
4].

Plea Agreement [ECF No. 65 at

The police officers obtained a search warrant from a state

court district judge and effected a search of the apartment,
finding therein 62 grams of heroin, other controlled substances,
and a 380 caliber Bersa, model Thunder, semiautomatic handgun.
Johnson’s trial counsel filed motions to suppress evidence
and statements.

A motions hearing and jury selection for

Johnson’s trial were scheduled to occur on October 26, 2015.

On

that day, before the hearing or jury selection took place,
Johnson signed the plea agreement [ECF No. 65] in which he
admitted ownership of the gun and drugs and that he intended to
distribute the drugs. Id. at 5.

On October 26, 2015, Johnson

pleaded guilty to Count 1 (possession of heroin with intent to
distribute violating 221 U.S.C. § 841(a)) and Count 3
(possession of a firearm by a felon violating 18 U.S.C. §
922(g)).

Johnson also admitted to having violated conditions of

supervised release in Case No. CCB-06-0554.
On January 5, 2016, Judge Quarles imposed the sentence,
pursuant to Rule 11(1)(C)(1)(c), of 151 months of incarceration
on Count 1 with a concurrent sentence of 120 months on Count
Three with the Government recommending – and Johnson ultimately
receiving - a 48 month concurrent sentence for the supervised
release violation in Case No. CCB-06-0554.
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By the instant Motion, timely filed pursuant to 28 U.S.C.
§ 2255, Petitioner seeks to have his conviction and sentence
vacated.

II.

DISCUSSION
Petitioner asserts that he was denied his right to the

effective assistance of counsel.
In order to prevail on a claim that counsel’s
representation violated his Sixth Amendment right to effective
assistance of counsel, Petitioner must show (1) “that counsel’s
representation fell below an objective standard of
reasonableness,”2 and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984).

“A reasonable

probability is a probability sufficient to undermine confidence
in the outcome [of the proceedings].”

Id. at 694.

Petitioner bases his ineffective assistance claim on
counsel’s failure to:
a.

2

Competently litigate a Fourth Amendment claim for
suppression, and

Thus overcoming a presumption that counsel’s conduct (i. e.
representation of the criminal defendant) was reasonable. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
4

b.

Represent Petitioner effectively during plea
negotiations and communicating an alleged Government
threat to indict his common law wife.

The Government contends that Petitioner was competently
represented regarding his suppression motion and denies that
there was any threat to indict Petitioner’s common law wife.

A. Suppression
The subject of the suppression motion is the evidence
obtained from the execution of a search warrant authorizing the
Annapolis and Anne Arundel County law enforcement to search
Johnson’s residence.

The search and seizure affidavit [ECF No.

83-1] was presented to Judge Philip Caroom of the Circuit Court
for Anne Arundel County, Maryland, signed by investigator
Murphy.
Murphy sought to seize the following items located at 407D
Secluded Post Circle, Glen Burnie, MD, 21061:
Any and all items related to the Possession of
Marihuana and the attempted murder of Seifullah
Bridges including but not limited to controlled
dangerous substance packaging and weighing materials,
tally sheets, electronic records, handguns, ammunition
and any other items associated with these two crimes.
Murphy Aff. [ECF No. 83-1 at 1] at 2.
In the affidavit, Murphy referred to the attempted murder
of Seifullah Bridges on January 21, 2014, wherein Bridges was
shot numerous times throughout his body.
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The affidavit stated

that Bridges identified Petitioner from a photo lineup as the
person who shot him, and described Johnson’s arrest and
possession of marijuana.

Murphy referred to a statement made by

Johnson to another police officer that “when we go into the
house we are going to find a gun which is going to be more
Federal time.” Id. at 3.
Petitioner’s counsel presented a motion to suppress
evidence derived from the search warrant.

Petitioner claims

that his counsel failed to represent him adequately in regard to
the suppression motion because he did not speak with
Petitioner’s state counsel nor obtain certain state discovery
documents relating to the search warrant that would have led to
a Franks hearing.

Petitioner claims that Murphy knowingly

submitted a false affidavit, that the false statements were
material and had been added to provide the false appearance that
there was probable cause supporting the issuance of the warrant.
Specifically, Petitioner claims that Bridges had not
identified Johnson as the shooter at the time of the affidavit,
i.e., February 7, 2014.

Petitioner is incorrect.

Murphy’s

investigation report plainly states that Bridges identified
Johnson as the shooter orally on January 27 and both orally and
in writing on February 6.

[ECF No. 85-4].

I then presented Mr. Bridges with the second
photographic line up which included Avaun Johnson in
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photograph number five.
Again Mr. Bridges read the
opening page aloud and advised he understood the
directions. He then began looking at the photographs.
Mr. Bridges looked at all six photographs, then turned
back to photograph number five, pointed at the
photograph and stated “I think this is the mother
f[**]ker right here.”
He then sat back in his chair
and winced in pain over stomach pains he was
experiencing. I noticed Mr. Bridges was sweating
profusely from his forehead. I asked him if he was ok
and he stated “I’m hurting”.
I asked him to write
down in the spaces provided what number he had picked
out and sign the disclaimer form of the photographic
line up acknowledging which photograph he had picked
out.
Mr. Bridges then stated to me that he did not
want to sign the photographic line up at this time and
wanted me to come back on 01/28/14 so he could look at
the photographic line up again and sign it. I did not
force Mr. Bridges to sign anything nor did I make any
further statements to him regarding the line up.
***
On 2/06/14 at 1412hrs I met with Mr. Bridges and Mrs.
A1exander.
I
presented
Mr.
Bridges
with
my
photographic line up while Mrs. A1exander sat in the
room with us. Mr. Bridges was again asked to read the
disclaimer portion of the photographic line up aloud
which he did.
I asked him if he understood it which
he stated “yes”. I then advised him if he understood
he was not promised, threatened or forced to identify
anyone, he stated again “yes”.
Mr. Bridges observed
all six photographs again and returned to photograph
number 5 and stated “this is the guy who shot me”. I
asked what this persons name was, Mr. Bridges stated
“Naw”, that is “Naw”.
Photograph number 5 was Avaun
Johnson.
I asked Mr. Bridges to sign and date the
disclaimer form acknowledging that he had identified
photograph number 5 as the person responsible for
shooting him. After he signed the form I had his
attorney, Mrs. A1exander sign the form as a witness.
Investigative Rep. [ECF No. 86-3] at 13, 15.

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The parties have not clearly – if at all – particularized
the evidence that would have been suppressed had Johnson’s
motions succeeded at trial.

However, the record adequately

establishes that Johnson’s trial counsel provided him reasonable
and effective representation regarding suppression.

It was

reasonable for counsel to have decided not to pursue a Franks
hearing claim when no evidence existed to contradict the facts
alleged in Murphy’s affidavit.3

Johnson alleges that Bridges

gave no identification before May 2014, but the Investigative
Report and evidence on record reveal that Bridges had identified
Johnson by February 6, 2014.4 See Investigative Rep. [ECF No. 863] at 13, 15; Photographic Lineup Form [ECF No. 86-4].
Moreover, even if counsel’s representation fell below a
standard of reasonableness, there is no evidence of prejudice,
because there is no reasonable probability that the result of
the suppression motion would have been different.

Johnson

presents no basis for the Court to conclude that Circuit Court
Judge issued the warrant based on any false statement.

3

There

Petitioner’s counsel, David Solomon, Esq., advises that he
did speak with Petitioner’s state counsel, who did not mention
any basis for a Franks hearing type claim. Solomon Aff. [ECF No.
85-5] ¶¶ 5-6.
4
Johnson points to date discrepancies on the Photographic
Lineup Form signed by Bridges, but regardless of what date it
was signed, January 27 or February 6, both dates occurred before
May 2014 and before the February 7 warrant date. [ECF No. 86-4].
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was ample evidentiary basis for Judge Caroom to find probable
cause to justify issuing the search warrant.
Furthermore, even if Judge Caroom had erred in finding
probable cause, there is no basis to find the Leon principle
inapplicable to deny suppression on the seizing officer’s
reliance upon the search warrant.

See United States v. Leon,

468 U.S. 897, 920–21, 926 (1984)(“[S]uppression is appropriate
only if the officers were dishonest or reckless in preparing
their affidavit or could not have harbored an objectively
reasonable belief in the existence of probable cause.”).

B.

Threat to Prosecute Common Law Wife

Johnson contends, but does not present probative evidence
to prove, that the federal prosecutors obtained his guilty plea
by threatening to prosecute his common law wife.

The

prosecutors and Johnson’s trial counsel deny that there was any
such threat. See Solomon Aff. [ECF No. 85-5] ¶ 4.

There is no

documentary evidence supporting the existence of such a threat.
Johnson’s statements under oath in his guilty plea proceeding do
not refer to, or otherwise support, the existence of any such
threat.
During the plea colloquy, Petitioner stated:
THE COURT: Have you read and discussed the
Indictment with your lawyer?
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THE DEFENDANT:
THE COURT: Has
THE DEFENDANT:
THE COURT: Has
to do?
THE DEFENDANT:
THE COURT: Has
did ask him to
THE DEFENDANT:

Yes, sir.
he answered all of your questions?
Yes, sir.
he done anything you told him not
No, sir.
he refused to do anything that you
do?
No, sir.

* * *
THE COURT: Did anyone threaten you or force you
to get you to plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Outside of what’s in the plea letter,
has anybody made any other promise or prediction
to you about the sentence that I’m going to give
you?
THE DEFENDANT: No, sir.
Re-Arraignment Tr. [ECF No. 87] at 19-20.
As determined by the United States Court of Appeals for the
Fourth Circuit in United States v. Lemaster, 403 F.3d 216 (4th
Cir. 2005):
“[A] defendant’s solemn declarations in open court
affirming [a plea] agreement ... ‘carry a strong
presumption of verity,’ ”, because courts must be able
to rely on the defendant’s statements made under oath
during a properly conducted Rule 11 plea colloquy.
“Indeed, because they do carry such a presumption,
they present ‘a formidable barrier in any subsequent
collateral proceedings.’ ” White, 366 F.3d at 295-96
(quoting Blackledge, 431 U.S. at 74, 97 S.Ct. 1621).
Thus, in the absence of extraordinary circumstances, .
. .
allegations in a § 2255 motion that directly
contradict the petitioner’s sworn statements made
during a properly conducted Rule 11 colloquy are
always “palpably incredible” and “patently frivolous
or false.” . . . .
Thus, in the absence of
extraordinary
circumstances,
the
truth
of
sworn
statements
made
during
a
Rule
11
colloquy
is
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conclusively established, and a district court should,
without holding an evidentiary hearing, dismiss any
§ 2255 motion that necessarily relies on allegations
that contradict the sworn statements.
Id. at 221–22 (internal citations omitted).
Johnson has provided no plausible evidence in support of
his allegation that the prosecution threatened to charge his
common law wife, an allegation directly contradicted by his
statements before Judge Quarles during the plea colloquy.

There

has been no concession or proof that Johnson’s counsel was
ineffective, or allegations of any other pertinent extraordinary
circumstances.

On the record, the Court finds no need for

further proceedings regarding the existence of any alleged
threat claimed by Johnson.

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III. CONCLUSION
For the foregoing reasons:
1.

Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence [ECF No. 80] is DENIED.

2.

The case shall be dismissed with prejudice.

3.

Judgment shall be entered by separate Order.

SO ORDERED, this Thursday, July 20, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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