Johnson v. USA
MEMORANDUM: For the reasons discussed above, the Court concludes that motion 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 his mot ion to vacate. Therefore, the motion 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 appropriate order will accompany this Memorandum. Signed by District Judge Carol E. Jackson on 4/17/2017. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMAAL CURRY JOHNSON,
UNITED STATES OF AMERICA,
Case No. 4:14-CV-1929 (CEJ)
This matter is before the Court upon the motion of Jamaal Curry Johnson to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United
States has filed a response, and the issues are fully briefed.
On May 30, 2012, a jury found Johnson guilty of conspiracy to distribute and
to possess with intent to distribute cocaine base, MDMA, BZP, and marijuana, in
violation of 21 U.S.C. § 846 and § 841(b)(1)(C) (Count 1); conspiracy to use and
carry firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§
924(c) and (o) (Count 2); possession of a firearm in furtherance of a drug
trafficking crime resulting in death, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j)
(Count 3); possession of a firearm discharged in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and (c)(1)(C)(ii) (Count 4); and
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and §
924(a)(2) (Count 5). He was sentenced on September 27, 2012 to an aggregate
term of imprisonment of 240 months.
The judgment was affirmed on appeal.
United States v. Johnson, 737 F.3d 522 (8th Cir. 2013).
In the instant motion to vacate, Johnson asserts that he was denied effective
assistance of counsel and that there was insufficient evidence to sustain his
The government maintains that the ineffective assistance claims are
without merit and that the challenge to the sufficiency of the evidence is
A. Ineffective Assistance of Counsel
Johnson claims that his attorney’s performance was, in a number of respects,
constitutionally deficient. To prevail on an ineffective assistance claim, a movant
must show that his attorney=s performance fell below an objective standard of
reasonableness and that he was prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 688 (1984).
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
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 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. 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).
Johnson first asserts that he was denied effective assistance of counsel as a
result of his attorney’s failure to challenge the sufficiency of the superseding
indictment with respect to Count 1. In the memorandum in support of the motion
to vacate, Johnson argues that the Count 1 was defective because it included
language—“did knowingly and intentionally combine, conspire, confederate and
agree”—that does not appear in 21 U.S.C. § 846. Had defense counsel moved to
dismiss Count 1 as facially insufficient, he would not have succeeded.
allegations in Count 1 set forth specific facts constituting the charged offense. See
United States v. Huggans, 659 F.3d 1210, 1218 (8th Cir. 2011) (indictment
charging violation of 21 U.S.C. § 846 which contained facts supporting all of the
essential elements of the offense was sufficient). Moreover, it cannot be said (and
Johnson does not contend) that the allegations were insufficient to notify Johnson
of the charge against him. See United States v. Mann, 701 F.3d 274, 288 (8th Cir.
2012) (indictment is sufficient if it contains all elements of the offense, fairly
informs the defendant of the charges he must defend against, and contains
sufficient information to allow the defendant to plead a conviction or acquittal as a
bar to a subsequent prosecution).
Thus, even if defense counsel’s failure to
challenge the facial sufficiency of the indictment could be deemed performance
below an objective standard of reasonableness, Johnson suffered no prejudice.
Further, Johnson cannot show that the outcome of the proceedings would
have been different if defense counsel had moved to strike the alleged surplusage
in Count 1.
At best, a motion to strike would have resulted in removing the
language Johnson complains of—the prosecution of the offense charged in Count 1
would have continued. Additionally, the indictment was not submitted to the jury,
either as an exhibit or as part of the instructions. Thus, the jury’s deliberations and
verdict could not have been influenced by the alleged surplusage in Count 1.
In the reply in further support of his motion to vacate, Johnson contends that
his attorney’s failure to object to object to a constructive amendment of Count 1 at
trial constitutes deficient performance.
Specifically, he argues that “he was
charged with one thing, but the jury was instructed on another.” Reply at p. 3 [Doc.
# 8]. This argument lacks merit. Count 1 charged Johnson with conspiring with
other individuals to “distribute and possess with intent to distribute” cocaine base,
MDMA, BZP, and marijuana. At trial, however, the jury was instructed only on the
charge of conspiring to “distribute” cocaine base, MDMA, BZP, and marijuana. “A
constructive amendment occurs when the essential elements of the offense as
charged in the indictment are altered in such a manner—often through the evidence
presented at trial or the jury instructions—that the jury is allowed to convict the
defendant of an offense different from or in addition to the offenses charged in the
indictment.” United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007).
The government’s decision to proceed only on the conspiracy-to-distribute charge
did not constitute a constructive amendment, because the charge submitted to the
jury did not differ from the charge included in the offense alleged in Count 1. An
objection by defense counsel would not have succeeded and, therefore, Johnson
was not prejudiced.
Johnson next complains of his attorney’s failure to challenge the admission of
certain evidence at trial.
He contends that “[t]he only ‘facts’ established at trial
that allegedly proved [his] involvement in a conspiracy relied only on testimony
from witnesses with a huge incentive to testify against [him].” Memorandum at p.
9 [Doc. # 1-1]. He also contends that defense counsel should have objected to the
admission of evidence of his involvement in a “gang.” Among other things, the jury
was given instructions on how to assess the credibility of witnesses in general and
the credibility of specifically-named witnesses who had cooperated with the
government or had participated in the conspiracy or had prior felony convictions.
Johnson does not point to any further instructions his attorney could have offered,
nor does he identify any legal grounds for excluding the witnesses’ testimony. As
to the testimony regarding Johnson’s involvement in a gang, Johnson argued on
direct appeal that “evidence of an ‘amorphous neighborhood organization’ was
improperly admitted and thus insufficient to prove a conspiracy.”
F.3d at 524.
After reviewing the argument, the court of appeals concluded that
“[t]he admission of this evidence was not an error, much less an obvious error” and
that the evidence was sufficient to support the verdict. Id. at 525. Johnson cannot
demonstrate that he was prejudiced by his attorney’s failure to object to the
evidence at trial.
Johnson is not entitled to relief on his claims of ineffective assistance of
B. Sufficiency of the Evidence
Johnson’s final claim is that the evidence presented at trial was insufficient to
prove the conspiracy charge in Count 1. He does not challenge the sufficiency of
the evidence to sustain his conviction on the remaining charges.
The issue of
sufficiency of the evidence was reviewed de novo by the court of appeals and was
decided adversely to Johnson.
A claim that was presented and decided on
direct appeal, cannot be relitigated in a proceeding under ' 2255.
Bear Stops v.
United States, 339 F.3d 777, 780 (8th Cir. 2003); United States v. Holtzen, 718
F2d 876, 878 (8th Cir. 1983).
Johnson is not entitled to relief on this claim.
For the reasons discussed above, the Court concludes that motion 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 his motion to vacate.
Therefore, the motion 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. §
An appropriate order will accompany this Memorandum.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of April, 2017.
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