Johnson v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/23/2017. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JACK BRUCE JOHNSON, SR.
Plaintiff

UNITED STATES OF AMERICA
Defendant

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Civil No. P.JM 16-654
(Related to Criminal No. 11-075)

MEMORANDUM OPINION
Jack Bruce Johnson, Sr. has filed a Motion to Vacate, Set Aside, or Correct Sentence,
under 28 U.S.C.

S 2255.

ECF No. 63. The Court has considered the Motion and the

Government's Opposition. For the reasons described below, the Court DENIES the Motion.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On February 14, 2011, a grand jury returned an eight-count indictment against Johnson
stemming from his illegal activities while serving as the County Executive for Prince George's
County, Maryland. ECF No. 17. On May 17,2011, Johnson entered into an agreement with the
Government, in which he pleaded guilty to extortion, in violation of 18 U.S.C.
and witness and evidence tampering, in violation of 18 U.S.C.

S

S

1951 (Count 2)

1512(b)(2)(B) (Count 8). ECF

No. 26. All other charges were dropped. On May 17,2011, following a colloquy with Johnson
in open court, the Court accepted the plea agreement. ld
On December 14,2011, the Court sentenced Johnson to 87 months in custody, to be
followed by three years of supervised release. ECF No. 50. Johnson waived his right to appeal
in the plea agreement.

ECF No. 27.

Some four and one-half years later, on March 8, 2016, Johnson filed the present Motion
to Vacate, Set Aside, or Correct Sentence. ECF No. 63. He argues that he is eligible for relief
on account of newly discovered evidence related to three "offensive and hate-filled" letters he
and his family received in 20 I0 and 2011. Id. at 4. The mailings contained crude language and
racial slurs directed towards Johnson and referenced the crimes to which he pleaded guilty. Id. at
8. Johnson believes and alleges that members of the Prince George's County Police Department
(PGCPD), who were part ofa federal task force investigating his crimes, were the authors of the
letters. Id. His evidence for this proposition includes the statement that one of the letters was
mailed in an official Prince George's County Government stationery envelope. Id. at 9-10.
Another of the letters referenced two PGCPD officers Johnson prosecuted during his time as the
State's Attorney for Prince George's County, an oflice he held prior to becoming County
Executive. Id. at 9.
Johnson submits that in 2015, an independent scientific laboratory retained by him tested
traces of saliva on the back flap of the three envelopes in which the letters were delivered. Id. at
10. The tests indicated that a single male had sent two of the letters, one of which was the one
sent in what appeared to be an official Prince George's County Government stationery envelope.
A separate individual purportedly sent the third letter. Id. at II. From this, Johnson concludes
that a Prince George's County employee, likely a PGCPD oflicer, sent the two letters. Id. at 12.
Johnson asserts that the DNA test's conclusions constitute new evidence suggesting a
lack of integrity in the criminal investigation that supported the investigators' application for
Title 1II wiretaps in his case which, in tum, produced a significant amount of the evidence
against him. Id. at 13. He contends that he would not have entered into his plea agreement had

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he known that the DNA tests would reveal that the investigation was tainted. Id. at 12. The
Government submits that Johnson's claim is meritless. ECF No. 68 at 6.
II.

ANAL YSIS

a. LIMIT AnONS
Title 28 U.S.c. 92255 establishes a one-year statute oflimitations

a post-conviction

petition from the latest of:
(I)

the date on which a conviction becomes final; (2) the date on which the
impediment to making a motion created by governmental action in violation
of the constitution or laws of the United States is removed, if the movant
was prevented from making a motion by such governmental action; (3) the
date on which the right asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or (4) the date
on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.

Based on 28 U.S.C. 9 2255(1)(2), Johnson argues that limitations should run from March
11, 2015, because that was "the moment which it became possible to trace the suspected law
enforcement-related

wrongdoing back to the perpetrators."

ECF No. 63 at 18. Alternatively he

argues, pursuant to 9 28 U.S.C. 92255(1)(4), that limitations should run from October 13,2015,
because that was "the date in which [Johnson] received the DNA testing results from a third
envelope."

Id. The Government counters that the appropriate date when limitations began to run

was December 28,20 II, fourteen days after the Court filed its judgment, when Johnson failed to
note on appeal and his conviction became final. ECF No. 68 at 7. See Fed. R. App. P.
4(b)(I)(A) (requiring that a defendant file a notice of appeal within fourteen days of the entry of

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judgment).

The deadline for Johnson to file a timely 28 U.S.c. 92255 motion, according to the

Government, was December 28, 2012. ECF No. 68 at 7.
The Court agrees with the Government that limitations began to run from the date
Johnson's conviction became final pursuant to 28 U.S.C. 92255(1)(1) and that his present motion
is untimely.
To obtain the benefit 01'28 U.S.C. 9 2255(1)(2), which would extend the limitations
period, a petitioner must show that the Government acted in violation of the Constitution and that
its action prevented him or her from filing a 28 U.S.C. 92255 motion. Johnson, however, cites
no governmental action that in any way prevented him from filing his motion or from conducting
an investigation into who sent the letters. Therefore, 28 U.S.c. 92255(1)(2) is not the correct
standard.
To benefit from 28 U.S.C. 9 2255(1)(4), a petitioner must prove that he or she discovered
new facts that could not have been discovered in the year after his conviction became final. See

u.s. v. Segers,

F.3d 181, 186 (4th Cir. 200 I). Johnson does not allege he was unable to have

conducted DNA tests within one year of receiving the letters, other than to say that "the stress
from the pending indictment and the accompanying media scrutiny" prevented him from
investigating the matter earlier. ECF No. 63 at 7. But the standard is not whether Johnson knew
he could obtain a DNA test or knew the results of such a test. All that is relevant is that he had
the capability to make such a discovery through the exercise of due diligence. U.S. v. Clay, 537
U.S. 522, 524-25 (2003). Without question, he was capable.

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The relevant date for limitations to begin running was December 28, 20 II. That means
that the limitations expired long before Johnson filed the present case on March 8, 2016. His suit
is therefore time barred.]
b.

Under 28 U.S.C.

S 2255,

PROCEDURAL DEFAULT

claims not raised on direct appellate review cannot be heard on

collateral review unless a petitioner shows that his or her failure to raise claims earlier in the
process was for "cause" and created "actual prejudice." See

us.

25 (4th Cir. 1996). Collateral attack is not a substitute for appeal.
165 (1982).

v. LandrulII, 93 F.3d 122, 124-

us.

v. Frady, 456 U.S. 152,

"Where [a] petitioner only waives the right to appeal, he is not precluded from

filing a petition for collateral review. But he is precluded from raising claims of the sort that
could have been raised on appeal."

us.

v. Linder, 552 F.34, 391, 396-97 (4th Cir. 2009) (citing

Brian R. Means, Fed. Habeas Practitioner Guide, Jurisdiction ~ 1.23.0 (2006/2007) (emphasis in
original).
The unalterable fact is that Johnson could have, but did not raise any of his issues he
pursues here on direct appeal, which means his claim is not cognizable under 28 U.S.C.

S 2255.

He knowingly and voluntarily entered into a plea agreement that waived his right to direct
appeal. Absent an appeal, he is not permitted to now raise these claims by way of collateral
review.

I Johnson claims he received the anonymous letters on or around November 15, 20 I0, December 27,
20 II, and December 28, 20 II. That is, he received the first letter shortly prior to his sentencing and the
other two letters shortly after being sentenced. One of the three letters was apparently sent to the home of
his son, Jack B. Johnson, Jr. ECF No. 63 at 8.

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III.

APPEALABILITY

Rule II (a) under the Federal Rules Governing 28 U.S.C.

S 2255

requires the Court to

"issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
Fed.R.Gov.

S 2255

Proc. II(a).

A certificate of appealability will not issue absent "a substantial

showing of the denial ofa constitutional right." 28 U.S.C.

S 2253(c)(2);

Mi//er-El v. Cockrell,

537 U.S. 322, 327 (2002); Slack v. McDaniel, 529 U.S. 473, 474 (2000). The Court has
reviewed pleadings and the record in this case. It finds that Johnson has not made the requisite
showing here.

IV.
For these reasons, Johnson's

CONCLUSION

Motion to Vacate, Set Aside, or Correct Sentence

DENIED.

A separate Order will ISSUE.

v~

P TER J. MESSITTE
UNITED STATES DISTRICT JUDGE

March _' 2017

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IS