Johnson v. USA - 2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 7/30/2013. (kns, Deputy Clerk)(c/m 7/31/13)
_ALED
_lOGGED
_ENTERED
_RECEIVED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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LAMONT .JOHNSON, pro se
*
*
*
*
*
Petitioner,
v.
BY
Civil No.: P.JM 12-3425
Crim. No.: P.lM 09-0588
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*
*
UNITED STATES OF AMERICA
Respondent.
MEMORANDUM
OPINION
Lamont Johnson, pro se, has filed a Motion to Vacate his sentence under 28 U.S.c.
S
2255 [Paper No. 43]. The Motion is DENIED.
I.
Johnson was indicted for being a felon in possession of a firearm in violation of 18
U.S.c.
S
922(g). He pled guilty through a "straight-up" plea, i.e., without the benefit of a plea
agreement. In a joint letter to this Court, however, the parties agreed to the following statement
of facts:
On July 30, 2009, Prince George's County Police (PGPD) stopped Lamont Luther
JOHNSON while driving in Upper Marlboro, Maryland for a broken right brake
light. When the officer approached the vehicle he observed the operator reach
under the driver seat, exit the vehicle and move towards the passenger side of the
vehicle. The operator was ordered back to the driver side of the vehicle, at which
time JOHNSON fled on foot. Law enforcement recovered a .38 caliber revolver
bearing an obliterated serial number loaded with six (6) rounds of ammunition
from under the driver's seat. Officers also recovered a folder containing
JOHNSON's learner's permit, social security card and birth certificate from the
passenger scat. The officer looked at the picture on the learner's permit and
identified that individual as the same who had just fled the scene ...
Johnson
enhancement
was sentenced
to
183 months
in prison,
after
receiving
a sentencing
under the Armed Career Criminal Act, which increased his criminal history
category to a level V.
-1-
Johnson
appealed
affirmed
his conviction
Federal
Public
(AFPD),
who represented
for certiorari
succeeding
appeal.
Johnson
November
19,2012,
his plea, sentencing,
and
The AFPD advised Johnson
that
need to withdraw
Court, but that the odds of
Johnson
that she would consider
from Johnson's
case ifhe
was told that he would need to tile the petition
29, 2012, and was asked to contact
never responded
an Assistant
decision.
and would therefore
Johnson
16,2011,
which
during
were very slim. The APFD further advised
opted to pursue a eert petition.
Circuit,
Johnson
with the United States Supreme
any such appeal to be frivolous,
later than February
for the Fourth
1, 2011. On December
him by mail of the Fourth Circuit's
he could file a petition
such a petition
States Court of Appeals
and sentence on December
Defender
appeal, informed
to the United
to the AFPD,
the AFPD
regarding
nor did he tile a cert petition
by no
his intention
to
on his own. On
tiled the present Motion.
II.
Johnson
argues that his counsel rendered
failed to pursue a motion to suppress,
regarding
constitutionally
encouraged
and involuntarily,
assistance
when she
him to plead guilty, and failed to consult him
pursuit of a cert petition to the Supreme Court.
into his guilty plea unintelligently
ineffective
I
Johnson
further asserts that he entered
2
and requests that the plea be set aside.
A.
Johnson
first contends
that his lawyer rendered
failed to tile a motion to suppress
the revolver
inefTective assistance
found under the driver's
of counsel when she
seat of the car Johnson
had been driving.
I As a pro se petitioner, Johnson's
Motion must be liberally construed. Erickson v. Pardus, 551 U.S. 89,
94 (2007). Therefore, his somewhat imprecise claims have been recast in more meaningful form.
2 Johnson did not raise this claim in his Motion, but asserts in his Reply that it was raised implicitly. The
Court sees no need to challenge the propriety of raising a claim in this fashion and will address the claim
in any event.
-2-
To demonstrate
ineffective assistancc
of counsel, a pctitioner
needs to make two
showings: first, he must show that his counsel's representation fell bclow an objective standard
of reasonableness;
and, second, he must show that counsel's
deficicncy
was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
With respect to the first prong, judicial scrutiny of counsel's performancc is "highly
defcrcntial," and the petitioncr must overcome thc presumption that counsel's decision-making
was thc result of sound trial strategy. See id. at 689. Under the second prong-the
prong-the
prcjudice
pctitioncr must show that there was a reasonable probability of a ditferent rcsult had
counsel not committed the alleged error. ld. at 694.
Johnson has given no reason for thc Court to concludc that counsel's failure to file a
motion to suppress constituted delicient performance, nor has he supplied any reason for the
Court to bclieve that the evidence was unlawfully scizcd from the car.
For the same reasons, Johnson does not satisfy the prejudice prong.
To find probable cause, the totality of the circumstances
need only be sufficient to
warrant a reasonable person to believe that contraband or evidence of a crime would be found in
Johnson's car. See Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause does not require
that the officer's belief be more likely true than false. United States v. Jones, 31 FJd 1304, 1313
(4th Cir. 1994).
Here, after his vehicle was stopped for a broken brake light, Johnson oddly and
inexplicably reached under his passcngcr seat, cxitcd thc vehicle, and rushed to the passenger
side door. In the context of a vchicular police stop, thesc actions arc fairly deemed unusual and
suspicious. See Porte,:field v. Loll, 156 F.3d 563, 569 (4th Cir. 1998) ("[W]hen it is considered in
the light of all the surrounding circumstances, even 'seemingly innocent activity' may provide a
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----------------------------------------
basis for finding probable cause.") (citing Taylor v. Waters, 81 FJd 429, 434 (4th Cir. 1996)).
When Johnson was told to return to the driver's side of the vehicle, he bolted from the scene,
committing what can only be termed the "consummate act of evasion." United States v. Smith,
396 FJd 579, 584 (4th Cir. 2005) (headlong flight is the "consummate act of evasion") (internal
quotation and citation omitted). Consequently, the officers who arrested Johnson had probable
cause to search the car. Accordingly, a motion to suppress by counsel would not have been
meritorious. In consequence, Johnson's claim of ineffective assistance of counsel for failure to
file a motion to suppress lacks merit.
B.
Johnson also claims ineffective assistance of counsel on the grounds that counsel
encouraged him to plead guilty. Given that (a) Johnson lacked a meritorious defense, (b) he was
able to have a say in the construction of the statement of facts used against him because of his
decision to plead guilty, and (c) his ultimate sentence was on the low end of the sentencing
guidelines, the Court cannot conclude that counscl's decision to advise Johnson to plead guilty
fell below an objective standard of reasonableness.
Even assuming, arguendo, that counsel's performance was deficient, Johnson cannot
satisfy the prejudice prong of Strickland which requires, in the context of a guilty plea,
demonstration of "a reasonable probability that, but for counsel's errors, [Johnson] would not
have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59
(1985). Johnson's after-the-fact declarations are of no moment. He has failed to show what he is
required to show-that
proceeding to trial would have been objectively reasonable in light of all
the facts. See United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012) ("The challenger's
subjective preferences ... arc not dispositive; what matters is whether proceeding to trial would
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have been objectively reasonable in light of all the facts."). Johnson has pointed to no plausible
defense he might have asserted against the ponderous facts of the case, nor does one readily
appear to the Court. See id. (decision to go to trial would not be rational where evidence against
the defendant was "overwhelming");
see also Meyer v. Branker, 506 F.3d 358, 369 (4th CiT.
2007) (prejudice prong is "dependent on the likely outcome of a trial had the defendant not
pleaded guilty"). Since Johnson was not prejudiced by entering a guilty plea, his claim of
ineffective counsel fails accordingly.
c.
Johnson next claims he pled guilty unintelligently and involuntarily.
S
2255 motion
contesting a guilty plea, the Court must first determine "whether the petitioner's
allegations,
In determining whether an evidentiary hearing is necessary to resolve a
when viewed against the record of the Rule 11 plea hearing, are so palpably incredible, so
patently frivolous or false as to warrant summary dismissal." Uniled Stales v. While, 366 F.3d
291,296
in a
S
(4th CiT. 2004) (quoting Blackledge v. Allison, 431 U.S. 63, 76 (1977)). "[A)llegations
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," Uniled Slales v. Lemasfer, 403 F.3d 216, 221 (4th CiT. 2005), and, absent extraordinary
circumstances,
any
S
2255 motion that ncccssarily
relies on such allegations
should be-
dismissed. ld at 221-22.
During his Rule 11 colloquy, Johnson confirmed the accuracy of an agreed statement of
facts; i.e., facts set forth in a letter to this Court signed by Johnson and the Government.
Moreover, Johnson told the Court several times during the colloquy that he was pleading guilty
knowingly and voluntarily. Any contention now that Johnson's car taillight was not broken prior
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to the stop must be disregarded since it directly contradicts the facts that Johnson agreed to both
in writing and orally. Moreover, Johnson stated in his colloquy, inter alia, that he was satisfied
with counsel's services, that he understood that he could potentially be sentenced to life in
prison, and that he understood everything regarding the sentencing process. To the extent that he
now argues there was an insufficient factual basis for the Court to have considered his plea
intelligent and voluntary, he is attempting to re-write history. His decision to enter a guilty plea
was intelligent and voluntary.
D.
Finally, Johnson claims that counsel was ineffective for failing to consult him regarding a
possible appeal to the Supreme Court.
To be sure, counscl has a constitutional duty to consult with a defendant regarding the
possibility of an appeal when there is reason to think either (a) that a rational defendant would
want to appeal (typically because there are non-frivolous
grounds for appeal), or (b) that a
defendant has reasonably demonstrated to counsel that he is interested in appealing. Roe v.
Flores-Or/ega,
528 U.S., 470, 480 (2000). The Supreme Court has defined consulting in this
context to mean "advising the defendant about the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the defendant's wishes." ld. at 478.
Counsel fairly complied with these obligations. Counsel correctly informed Johnson that
the Supreme Court was extremely unlikely to grant certiorari in his case-less
criminal eert petitions are granted-and
Johnson, in the AFrD's
than I % of
opinion, had no non-frivolous
issues. In short, there were essentially no advantages to tiling, only disadvantages.
I3ut more
imp0l1antly, counsel made a reasonable effort to discover Johnson's wishes regarding appeal
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---------------------,
when she requested that he contact her as soon as possible to discuss whether he wanted to file a
cert petition. Her letter of December 16, 2011 to Johnson instructed him that he had until
February 29, 2012 to file a petition of certiorari with the Supreme Court. Counsel made a
reasonable effort to consult with him prior to that date about the possibility of appeal, but he
never responded to her inquiry. She complied with her professional
obligations vis-it-vis a
possible appeal to the Supreme Court. Johnson has only himself to blame for an appeal not being
taken.
In any event, Johnson cannot establish prejudice.
To establish prejudice resulting from the failure to consult regarding the possibility of an
appeal, Johnson would need to show that there were non-frivolous issues for appeal or that he
had communicated an "unwavering and ongoing" interest in appealing that would not have been
overborne by counsel's advice. See Bostick v. Stevenson, 589 F.3d 160, 168 (4th Cir. 2009). But
again the cupboard is bare. Johnson has not set forth any non-frivolous grounds that could have
been the basis of a eert petition to the Supreme Court. Nor has he demonstrated that he had an
"unwavering
and ongoing" interest in pursuing an appeal, certainly not one so strong as to
suggest that he would have appealed notwithstanding counsel's advice.
Indeed, Johnson docs
not elaim that he ever told counsel of his intention to lile a eert petition to the Supreme Court,
much less demonstrated an "unwavering and ongoing" interest in doing so. He specifically failed
to contact counsel after being asked to inform her of his intention regarding a possible appeal.
Then, after being informed of the need to act by a date certain, he failed to initiate the appeals
process himself.
-7-
In sum, counsel fairly consulted or attempted to consult with Johnson as to the possibility
of an appeal, and, in any event, he cannot show he was in any way prejudiced. There was no
ineffective assistance in this regard.
III.
For the foregoing reasons, Johnson's Motion to Vacate his sentence under 28 U.S.C.
S
2255 (Paper No. 43) is DENIED.
A separate Order will ISSUE.3
/s/
ER .I. MESSITTE
TES DISTRICT .JUDGE
11
00
.Iuly _' 2013
3 Rule II(a) of the Rules Governing ~ 2255 Cases provides that the district COlll1 "must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant."
A certificate of
appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28
U.S.c. ~ 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists would
find that any assessment of the constitutional claims by the district court is debatable or wrong, and that
any dispositive procedural ruling by the district court is likewise debatable. See Miller-E1 l'. Cockrell,
537 U.S. 322, 336-38 (2003); Slack l'. McDal/iel, 529 U.S. 473, 484 (2000); Rose l'. Lee, 252 F.3d 676,
683-84 (4th Cir. 200 t). The Court has considered the record and finds that Johnson has not made the
requisite showing because his claims arc wholly without merit, falling well short of the "reasonable
jurists" standard. Accordingly. the Court will not issue a certificate of appealability, and any such request
is DENIED.
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