Johnson v. USA
MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner DeCarlos L. Johnson motion is DENIED without an evidentiary hearing. IT IS FURTHER ORDERED this Court will not issue a certificate of appealability because Johnson has not made a substantial showing of the denial of a federal constitutional right.. Signed by District Judge Stephen N. Limbaugh, Jr on 1/23/15. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DECARLOS L. JOHNSON,
UNITED STATES OF AMERICA,
Case No. 1:14CV00132 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence by Decarlos L. Johnson, a person in federal custody. On June
24, 2013, pursuant to a plea agreement, Decarlos Johnson pled guilty to four counts of
distribution of a substance containing a detectable amount of cocaine base. On September
23, 2013, this Court sentenced Johnson to the Bureau of Prisons for a term of 151
months, the mandatory minimum sentence. Johnson’s § 2255 motion, which is based on
several allegations of ineffective assistance of counsel, is fully briefed and ripe for
A. The Indictment.
On February 28, 2013, a federal grand jury in the Eastern District of Missouri,
Southeastern Division, returned an indictment against DeCarlos L. Johnson, charging him
with four counts of Distribution of Cocaine Base in violation of Title 21, United States
Code, § 841(a)(1). (Case No. 1:13CR00021 SNLJ.) Johnson was arrested and made his
initial appearance before United States Magistrate Judge Lewis M. Blanton on March 20,
2013. The Federal Public Defender’s office was appointed to represent Johnson, and
Assistant Federal Defender Michael Skrien (“AFPD Skrien”) subsequently filed an Entry
of Appearance. AFPD Skrien appeared on behalf of Johnson at an arraignment on March
25, 2013, and Johnson entered a plea of not guilty to the charges. Judge Blanton set
Johnson’s pretrial motions hearing for April 17, 2013.
B. Pretrial Motions.
On April 16, 2013, AFPD Skrien filed a waiver of Johnson’s right to file pretrial
motions. On April 24, 2013, Johnson appeared before Judge Blanton and waived his right
to file pretrial motions. After that waiver, this Court set Johnson’s case for a plea hearing
on June 24, 2013.
C. The Plea Agreement.
Johnson and the Government reached a plea agreement that was reduced to
writing. The plea agreement sets out the parties’ bargain and understandings as to the
disposition of Johnson’s case.
Johnson agreed to plead guilty to all four counts in the indictment. In the
agreement, the parties recommended that Johnson qualified as a Career Offender
pursuant to U.S.S.G. Sec. 4B1.1. Accordingly, the parties recommended that the Base
Offense Level was 32. The plea agreement explicitly set forth that “[t]his joint
recommendation is in exchange for the government agreeing to refrain from filing a
notice of enhancement pursuant to 21 U.S.C. Sec. 851 for the defendant’s prior felony
controlled substance conviction,” which, as both parties acknowledged, would have
raised the Base Offense Level to 34. The parties further recommended that three levels
should be deducted for acceptance of responsibility, resulting in a Total Offense Level of
Johnson waived his right to appeal any sentencing issues if sentenced within the
applicable Sentencing Guidelines range. Johnson further agreed to waive his right to file
any post-conviction pleading, including a § 2255 petition, except for claims of
prosecutorial misconduct or ineffective assistance of counsel. That waiver was set out as
The defendant agrees to waive all rights to contest the conviction or sentence in
any post-conviction proceeding, including one pursuant to Title 18, United State
Code, Section 3582 and Title 28, United States Code, Section 2255, except for
claims of prosecutorial misconduct or ineffective assistance of counsel.
D. Guilty Plea Hearing.
Johnson and his attorney, AFPD Skrien, appeared before this Court on June 24,
2013. Johnson signed the Plea Agreement and pled guilty to all four counts in the
indictment. A sentencing hearing was scheduled for September 23, 2013.
E. The Presentence Investigation Report.
After the plea, this Court ordered that a Presentence Investigation Report (P.S.R.)
be prepared. United States Probation Officer Sherry L. Persinger prepared that report for
the Court. As anticipated by the parties in the plea agreement, the P.S.R. found that
Johnson did indeed qualify as a Career Offender. The Guidelines Manual provides that:
A defendant is a career offender if (1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. Section 4B1.1(a).
The P.S.R. identified three qualifying controlled substance offenses serving as
Career Offender predicates: (1) a conviction for Possession of a Controlled Substance
With Intent to Distribute, from the Circuit Court of Pemiscot County, Missouri, in Case
No. 34R059900318-02; (2) a conviction for Sale of a Controlled Substance, from the
Circuit Court of Pemiscot County, Missouri, in Case No. 01CR754102-01; and (3) a
conviction for Trafficking in the First Degree, from the Circuit Court of Pemiscot
County, Missouri, in Case No. 07F2-CR00423-01. The P.S.R. concluded, consistent with
the recommendation of the parties in the Plea Agreement, that Johnson was a Career
Offender. Pursuant to U.S.S.G. Section 4B1.1(b), the criminal history category was
determined to be VI. Based on a total offense level of 29 and a criminal history category
of VI, the applicable guideline imprisonment range was determined to be 151 to 188
No objections were filed to the P.S.R. by either party. Johnson filed his
“Acceptance to the Presentence Investigation Report” on September 6, 2013.
F. Sentencing Hearing.
On September 23, 2013, this Court sentenced Johnson to concurrent terms of
imprisonment of 151 months on each of the four counts, followed by three years of
supervised release. The sentence imposed was at the bottom of the applicable guideline
G. The Appeal.
Johnson did not appeal his conviction or sentence.
H. Petition for Post-Conviction Relief Pursuant to § 2255.
On September 19, 2014, Johnson filed his motion under 28 U.S.C. § 2255 (or, in
the alternative, a motion under 18 U.S.C. 3582(c)(2)). In the motion, Johnson asserts that
AFPD Skrien rendered ineffective assistance of counsel in that “[c]ounsel did not inform
me of the nature of the plea. I did not know nor was I made aware that there were waiver
clauses of any appeals and modifications pursuant to any change in the drug laws.” It
appears Johnson’s complaint is based upon his belief that, because of an appeal waiver in
the plea agreement, he is now barred from seeking a modification of his sentence
following the enactment of a purportedly favorable amendment to the sentencing
guidelines. Johnson’s claim is without merit.
A. NEED FOR EVIDENTIARY HEARING AND BURDEN OF PROOF
28 U.S.C. § 2255 provides, in pertinent part:
Unless the motion and the files and records of the case conclusively show that the
prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Court states:
The motion, together with all the files, records, transcripts, and correspondence
relating to the judgment under attack, shall be examined promptly by the judge to
whom it is assigned. If it plainly appears from the face of the motion and any
annexed exhibits in the prior proceedings in the case that the movant is not entitled
to relief in the district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.
When a petition is brought under Section 2255, the petitioner bears the burden of
establishing the need for an evidentiary hearing. In determining whether petitioner is
entitled to an evidentiary hearing the court must take many of petitioner’s factual
averments as true, but the court need not give weight to conclusory allegations, selfinterest and characterizations, discredited inventions, or opprobrious epithets. United
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is unnecessary when a
Section 2255 motion (1) is inadequate on its face, or (2) although facially adequate is
conclusively refuted as to the alleged facts by the files and the records of the case. Id., at
225-6. See also, United States v. Robinson, 64 F.3d 403 (8th Cir. 1995) Engelen v. United
States, 68 F.3d 238, 240 (8th Cir. 1995).
When all the information necessary for the court to make a decision with regard to
claims raised in a 2255 motion is included in the record, there is no need for an
evidentiary hearing. Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993). An
evidentiary hearing is unnecessary where the files and records conclusively show
petitioner is not entitled to relief. United States v. Schmitz, 887 F.2d 843, 844 (8th Cir.
1989); Dall v. United States, 957 F.2d 571, 573 (8th Cir. 1992).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim alleging ineffective assistance of counsel, the movant must
satisfy the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984). Under Strickland, the movant must first show that the counsel’s performance was
deficient. 466 U.S. at 687. This requires the movant to show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. Secondly, the movant must demonstrate that the deficient
performance prejudiced the defense so as “to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. The movant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
The Eighth Circuit has described the two-fold test as follows: (1) counsel’s
representation fell below an objective standard of reasonableness; and (2) but for this
ineffective assistance, there is a reasonable probability that the outcome of the trial would
have been different. Rogers v. United States, 1 F.3d 697, 700 (8th Cir. 1993). More
recently the Eighth Circuit has described the Strickland test as follows: “Whether
counsel’s performance was in fact deficient and, if so, whether the defendant was
prejudiced by the inadequate representation. If we can answer ‘no’ to either question,
then we need not address the other part of the test.” Fields v. United States, 201 F.3d
1025, 1027 (8th Cir. 2000).
When evaluating counsel’s performance, the court “must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Counsel’s performance is
considered objectively, and gauged “whether it was reasonable ‘under prevailing
professional norms’ and ‘considering all the circumstances.’” Fields, 201 F.3d at 1027,
quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. Counsel’s challenged conduct
is viewed as of the time of his representation. “And we avoid making judgments based on
hindsight.” Fields, 201 F.3d at 1027. A reviewing court’s “scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Ineffective Assistance of Counsel claim is without merit
In his motion under 28 U.S.C., § 2255, Johnson asserts that AFPD Skrien rendered
ineffective assistance of counsel in that “[c]ounsel did not inform me of the nature of the
plea. I did not know nor was I made aware that there were waiver clauses of any appeals
and modifications pursuant to any change in the drug laws.” In his “Affidavit in Support”
of the motion, Johnson proceeds to complain that he “was not even aware that the laws
were pending to modify the drug level by reducing them two levels for all drug offenses.”
Johnson asserts that he “is not able to seek any modification as Amendment 782 has now
been made into law and will be enacted on November 1st 2014.”
Although Johnson’s petition was filed as a motion to vacate, set aside, or correct
the sentence under 28 U.S.C. Section 2255, it appears Johnson is actually seeking a
reduction of his sentence under 18 U.S.C. Section 3582(c)(2). Regardless, Amendment
782 is simply inapplicable to Johnson’s sentence.
Amendment 782 does not apply to Johnson’s sentence
On April 30, 2014, the United States Sentencing Commission (hereinafter
“Commission”) promulgated Amendment 782, which became effective on November 1,
2014. The Amendment revised the Drug Quantity Table in U.S.S.G. Section 2D1.1,
reducing by two levels the offense level applicable to many drug trafficking offenses.
Although the Commission voted to make Amendment 782 retroactively applicable to
previously sentenced defendants, it does not apply to Johnson’s sentence. Johnson’s
sentence was not based on the quantity of cocaine involved in his convictions under
U.S.S.G. Section 2D1.1, but rather on his status as a Career Offender under U.S.S.G.
In United States v. Harris, 688 F.3d 950 (8th Cir. 2012), the Eighth Circuit
considered whether a defendant convicted of distribution of cocaine base was eligible for
a reduced sentence based on amendments to the crack cocaine guidelines. At issue in that
case was Amendment 750 to the Sentencing Guidelines, which reduced the offense levels
listed in U.S.S.G. Section 2D1.1 for certain crack cocaine offenses. The Harris Court
found that, because of the defendant’s status as a Career Offender, he was not eligible for
a sentence reduction. The Court explained that since the sentence was based on the
applicable offense level found in the Career Offender provisions of Section 4B1.1, as
opposed to the offense level found in the drug quantity table of Section 2D1.1, the
Amendment could not be applied to the sentence. Id., at 952-53. See also, United States
v. Reeves, 717 F.3d 647 (8th Cir. 2013).
The same analysis applies here. Johnson has never disputed his status as a Career
Offender. The sentence in his case was based on the offense level found in Section 4B1.1,
not on the drug quantity table of Section 2D1.1. Accordingly, Johnson is not eligible for a
reduction in his sentence.
The records and files in this case conclusively establish that Johnson is not entitled
to relief. Johnson has failed to satisfy either prong of the Strickland test. First, Johnson
has failed to show that his counsel’s performant was deficient. AFPD Skrien cannot be
said to have rendered ineffective assistance of counsel for failing to predict a future
enactment by the Sentencing Commission. But even assuming, arguendo, that this did
somehow constitute ineffective assistance, the enactment of Amendment 782 would not
apply to Johnson’s sentence. Thus, Johnson has failed to establish prejudice. For these
reasons, the motion is DENIED without an evidentiary hearing.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Johnson has not made a substantial showing of the denial of a
federal constitutional right.
SO ORDERED this 23rd day of January, 2015.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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