Johnson v. United States of America

Filing 23

MEMORANDUM: For the reasons set forth above, the court concludes that motions and the files and records of this case conclusively show that Johnson is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims he asserts. Therefo re, the motion and amended motion to vacate will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that Johnson has not made a substantial showing of the denial of a constitutional right. Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. § 2253. An order consistent with this memorandum opinion will be filed separately. Signed by District Judge Carol E. Jackson on 10/1/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICCO PEREZ JOHNSON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No.

4:12-CV-867 (CEJ)

MEMORANDUM
This matter is before the court on the motion of Ricco Perez Johnson to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. ' 2255.
States has filed a response in opposition.

The United

Also before the court is Johnson’s

amended motion to vacate which includes an additional claim of ineffective
assistance of counsel.
I.

Background

On January 18, 2011, Johnson pled guilty to conspiracy to distribute and
possess with intent to distribute more than 1,000 kilograms of marijuana (Count I)
and conspiracy to manufacture more than 1,000 marijuana plants (Count II), in
violation of 21 U.S.C. § 846.

The penalties for each offense included a term of

imprisonment of not less than ten years and not more than life.
According to the presentence report, Johnson had a prior felony conviction for
possession of a controlled substance with intent to distribute and a felony conviction
for distribution of marijuana.

Thus, the court determined that Johnson was a

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career offender as defined in U.S.S.G. § 4B1.1 (2010).1

Johnson’s attorney did not

object to the career offender designation.2 Based on a criminal history category of
VI and a total offense level of 34, the applicable guideline imprisonment range was
262 to 327 months.

On May 9, 2011, the court sentenced Johnson to a

200-month term of imprisonment.
Immediately after sentencing, counsel for Johnson filed a Certification of
Compliance with Local Rule 12.07(A), bearing Johnson’s signature and indicating
that a notice of appeal would be filed.3

In a letter dated May 12, 2011, defense

counsel wrote:
To date I have already file [sic] our 12.7(a) Notice of Compliance
advising that I have informed you of all appellate rights including
those waived and you have initially requested that you would be
interested in filing a Notice of Appeal of your sentence. Please
be reminded that you did indeed waive certain rights to appeal
your sentence except for issues pertaining to a finding of a career
offender status and/or criminal history category. As such, I will
be making arrangements to discuss with you in detail any
decisions to appeal your sentence before making that final
decision.
In a letter dated June 7, 2011, defense counsel wrote:
At this juncture, based on my understanding of our last
conversation I have not filed a specific Notice of Appeal on your
Under U.S.S.G. § 4B1.1, a defendant who pleads or is found guilty of a felony
controlled substance offense and who has two prior convictions for a felony controlled
substance offense is a career offender. Distribution of or possession of a controlled
substance with intent to distribute is a “controlled substance offense” as defined in U.S.S.G.
§ 4B1.2.
1

2

Defense counsel objected only to the application of the firearm adjustment under
U.S.S.G. § 2D1.1(b)(1).

3
Local Rule 12.07(A) provides that, after judgment is entered in criminal case, the
defense attorney must file either (1) a notice of appeal, (2) a notice signed by the defendant
stating that no notice of appeal will be filed, or (3) a notice signed by the attorney stating
that the defendant understands his right to appeal and has not requested that a notice of
appeal be filed on his behalf.

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behalf based on the plea agreement at issue relative to the
sentence imposed which involve [sic] a departure and/or
variance from the suggested guideline range.
There was no appeal of the judgment.
Johnson filed a motion to vacate on May 10, 2012 in which he asserted two
claims of ineffective assistance of counsel.

On January 13, 2015, Johnson filed a

motion for leave to amend his ' 2255 motion by asserting a third ineffective
assistance claim.
II.

Leave to amend was summarily granted on August 7, 2015.

Discussion

To prevail on a claim of ineffective assistance of counsel, a movant must
show that his attorney=s performance fell below an objective standard of
reasonableness and that he was prejudiced thereby.
U.S. 668, 687 (1984).

Strickland v. Washington, 466

With respect to the first Strickland prong, there exists a

strong presumption that counsel=s conduct falls within the wide range of
professionally reasonable assistance.

Id. at 689.

In Strickland, the Court

described the standard for determining an ineffective assistance claim:
[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel=s challenged conduct
on the facts of the particular case, viewed as of the time
of counsel=s conduct. A convicted defendant making a
claim of ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have been
the result of reasonable professional judgment.
The
court must then determine whether, in light of all the
circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.
In making that determination, the court
should keep in mind that counsel=s function, as elaborated
in prevailing professional norms, is to make the
adversarial testing process work in the particular case.
At the same time, the court should recognize that counsel
is strongly presumed to have rendered adequate
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assistance and made all significant decisions in the
exercise of reasonable professional judgment.
Strickland, 466 U.S. at 690.
To establish the Aprejudice@ prong, the movant must show Athat 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.

In order to show

prejudice in the context of a guilty plea, the movant must show that there is a
reasonable probability that, but for counsel’s errors, he would have not pleaded
guilty, but instead would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); United States v. Davis, 583 F.3d 1081, 1091 (8th Cir. 2009);United States
v. Nesgoda, 559 F.3d 867, 870 (8th Cir. 2009).

The failure to show prejudice is

dispositive, and a court need not address the reasonableness of counsel=s
performance in the absence of prejudice.

United States v. Apfel, 97 F.3d 1074,

1076 (8th Cir. 1996).
A.

Failure to object to career offender designation

Johnson’s first claim is that his attorney’s failure to object to the career
offender designation constituted ineffective assistance.
According to the presentence report, Johnson had a 2008 New Mexico
conviction for distributing marijuana. He contends that the state offense was part of
the conspiracy in the federal case and should have been viewed as relevant conduct
instead of as separate crime for purposes of determining his status as a career
offender.

He asserts that his attorney’s failure to raise this issue constitutes

deficient representation.

Johnson also had a 2003 Oklahoma conviction for
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possession with intent to distribute marijuana.

This and the New Mexico conviction

constituted the predicate offenses for the career offender designation.

Johnson

states that he did not admit guilt to “any of the essential elements” of the two state
crimes and, therefore, his attorney should have argued against their being counted
as predicate offenses under U.S.S.G. § 4B1.1.
The career offender guideline applies if a defendant has at least two prior
felony convictions for a controlled substance offense.

Here, Johnson does not

dispute that the New Mexico and Oklahoma crimes were controlled substance
offenses.

Further, he does not contend that he was not convicted of these

offenses. He merely asserts that he didn’t admit guilt to all of the elements of the
crimes.

A conviction for a controlled substance offense that results from an Alford

plea is a predicate offense for purposes of the career offender guideline.

See State

v. Linngren, 652 F.3d 868, 872, fn. 5 (8th Cir. 2011), cert. denied 132 S.Ct. 1594
(2012), citing United States v. Vinton, 631 F.3d 476, 486 (8th Cir. 2011) (“ ‘It is
well-established that an Alford plea, like other guilty pleas, results in a conviction,
and we have said that Alford pleas are indistinguishable from other guilty pleas
when determining whether a conviction qualifies as a predicate offense to enhance
a sentence.”)

Thus, Johnson’s state court convictions—whether they resulted from

a an Alford plea, or a jury verdict—were properly considered.

Additionally, even if

the court had considered Johnson’s New Mexico conviction as relevant conduct,
doing so would not preclude the court from considering it for career offender
purposes.

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Johnson has not shown a reasonable probability that the outcome of the case
would have been different if his attorney had objected to the career offender
designation on the grounds asserted in his motion, nor does he .

Therefore, he is

not entitled to relief on this claim.
B.

Failure to object to calculation of criminal history points

Johnson was assessed two criminal history points under U.S.S.G. § 4A1.1(d)
based on the fact that he was on probation at the time he committed the offenses
in Counts I and II.
assessment.

He argues that his attorney should have objected to this

As discussed above, Johnson was a career offender.

Consequently,

his criminal history category was VI, regardless of the number of criminal history
points assessed.

U.S.S.G. § 4B1.1(b) (“A career offender’s criminal history

category in every case

. . . shall be Category VI.”).

An objection to the two points

assessed under § 4A1.1(d), if sustained, would not have changed Johnson’s criminal
history category.

Defense counsel cannot be faulted for not making a futile

objection.
C.

Failure to file notice of appeal

Johnson’s third ground for relief is that his attorney failed to file a notice of
appeal.

He asserted this claim for the first time in the amended motion to vacate

that was filed on January 13, 2015.
be rejected as untimely.

The government argues that the claim should

Johnson requested and was granted additional time to file

a reply to the government’s response.
A one-year period of limitation applies to motions for relief under § 2255.
U.S.C. § 2255(f).

28

The one-year period begins to run---as relevant here---from the

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date on which the judgment of conviction became final. 28 U.S.C. § 2255(f)(1).

In

the instant case, because Johnson did not seek appellate review, his conviction
became final on May 23, 2011, when the 14-day period for filing a notice of appeal
expired. Fed.R.App.P. 4(b)(1)(A), 26(a).

See Murray v. United States, 313 Fed.

Appx. 924 (8th Cir. 2009)(when defendant did not file direct appeal, his conviction
became final upon expiration of the time for filing notice of appeal) [citing
Anjulo-Lopez v. United States, 541 F.3d 814, 816 n. 2 (8th Cir. 2008)].
one-year period of limitation expired on May 24, 2012.

The

Therefore, any claim for

relief under § 2255 had to be filed by that date.
Johnson’s original motion to vacate was timely filed, but the amended motion
was not filed until almost two years after the deadline.

Notwithstanding the late

filing, the ineffective assistance claim raised in the amended motion may be
considered if it relates back to back to the ineffective assistance claims raised in the
original motion.

Relation back is permitted if the amended claim only serves to add

additional facts and specificity to the original claim.

See, e.g., Mandacina v. U.S.,

328 F.3d 995, 1000 (8th Cir.), cert. denied, 540 U.S. 1018 (2003).

An amendment

relates back only if the arises out of the same conduct, transaction, or occurrence
as the original claim.

Id.

Thus, for example, in Mandacina, the court found that a

prisoner’s expanded Brady claim set forth in his amended motion related back to
the Brady claim he asserted in his original motion, as the two claims were “factually
similar in terms of both ‘time and type’.” Id. at 1001.

By contrast, however, a new

claim of ineffective assistance of counsel will not be deemed to relate back to an
earlier ineffective assistance claim of a different type. Id. at 1002 (claim of

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ineffective assistance based on counsel’s failure to discover exculpatory footprint
evidence was not sufficiently similar in time and type to ineffective assistance claim
base on counsel’s failure to investigate information in a witness interview report).
In United States v. Hernandez, 436 F.3d 851, 858 (8th Cir. 2006), the
prisoner filed a timely § 2255 motion claiming that defense counsel was ineffective
for failing to object to the admission of evidence that lacked a proper foundation.
Later, after the limitations period had expired, the prisoner sought to amend his
motion to present a second claim of ineffective assistance, this time based on
counsel’s failure to effectively cross-examine two witnesses.

The district court

dismissed the newly asserted ineffective assistance claim as untimely, and the
dismissal was affirmed on appeal.

The court of appeals found that the facts alleged

in the original claim (which referred to admission of evidence) “were not such that
would put the opposition on notice that cross-examination of witnesses [alleged in
the newly asserted claim] was at issue.” Id. at 858. (citing Mandacina, 328 F.3d at
1000) motion held that the two claims of ineffective assistance were "not similar
enough to satisfy the 'time and type' test" and did not "arise out of the same set of
operative facts." Id.
Similarly, in United States v. Craycraft, 167 F.3d 451 (8th Cir. 1999), the
court held that an amended ineffective assistance claim based on counsel’s failure
to file an appeal did not relate back to the original ineffective assistance claims
based on counsel’s failure to challenge the drug classification and failure to request
a downward departure.

Id. at 457.

In reaching its decision, the court wrote:

Failing to file an appeal is a separate occurrence in both time and type
from a failure to pursue a downward departure or failure to object to
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the type of drugs at issue. We cannot say that [the] original petition
would provide notice of such a different sort or theory. Therefore, the
amendment cannot relate back under Rule 15(c) [of the Federal Rules
of Civil Procedure] and it must be time barred. It follows that the
District Court lacked jurisdiction under the statute to hear this claim. . .
Id.
Here, Johnson’s amended ineffective assistance claim based on failure to file
an appeal is not an expansion of or in any way similar in time and type to his
original ineffective assistance claims based on failure to object to the career
offender designation and the criminal history points calculation.

As such, the

amended claim is time-barred.
The limitations period under the AEDPA may be equitably tolled “under
limited conditions, for example, where ‘extraordinary circumstances’ beyond a
prisoner's control prevent the timely filing.” Gassler v. Bruton, 255 F.3d 492, 495
(8th Cir. 2001).

See also, United States v. Martin, 408 F.3d 1089, 1092 (8th Cir.

2005) (doctrine of equitable tolling is applicable in § 2255 proceedings).

To avail

himself of equitable tolling, a prisoner must demonstrate the existence of the
extreme circumstances and that he acted with due diligence in pursuing the motion.
E.J.R.E. v. United States, 453 F.3d 1094, 1098 (8th Cir. 2006).

However, as

equitable tolling is a narrow window of relief, the court will toll the limitations period
only if the extraordinary circumstances made filing a timely motion completely
impossible.

Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001); Kreutzer v.

Bowersox, 231 F.3d 460, 463 (8th Cir. 2000).
The letter written by defense counsel establishes that Johnson knew as early
as June 2011 that no appeal had been filed.

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This was almost a year before he filed

his original motion to vacate.

Johnson’s reply to the government’s response does

not contain any explanation for the late-filed amendment.

Based on the record

before the court, there were no impediments that prevented Johnson from asserting
the ineffective assistance/failure to appeal claim in the original motion.

Johnson

has not made the requisite showing of extraordinary circumstances to justify tolling
the limitations period.

Consequently, the court will not consider the claim asserted

in the amended motion.
III. Conclusion
For the reasons set forth above, the court concludes that motions and the
files and records of this case conclusively show that Johnson is not entitled to relief
under 28 U.S.C. § 2255 based on any of the claims he asserts.

Therefore, the

motion and amended motion to vacate will be denied without a hearing. See
Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court
finds that Johnson has not made a substantial showing of the denial of a
constitutional right. Therefore, the court will not issue a certificate of appealability.
See 28 U.S.C. § 2253.
An order consistent with this memorandum opinion will be filed separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 1st day of October, 2015.

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