Johnson v. USA
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Michael Johnson's motion under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence is DENIED. IT IS FURTHER ORDERED that 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. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 12/1/17. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Cause No. 4:17 CV 402 RWS
MEMORANDUM AND ORDER
This matter is before me on the motion of Michael Johnson to vacate, set aside,
or correct a sentence by a person in federal custody pursuant to 28 U.S.C. § 2255.
For the reasons set forth below, Johnson’s motion will be denied.
Johnson was indicted on May 1, 2013, along with nine co-defendants, for
violations of 21 U.S.C. § 841(b)(1)(B), conspiracy to distribute heroin, and 21 U.S.C.
§ 846, possession with intent to distribute heroin. On January 7, 2015, Johnson
entered into a guilty plea.
On April 28, 2015, Johnson was sentenced to 60 months of imprisonment and
four years of supervised release. Johnson filed an appeal. On November 9, 2015,
the Court of Appeals affirmed Johnson’s sentence. Johnson filed his present motion
to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on January 31,
In his motion, Johnson claims that he was denied effective assistance of
counsel because his counsel did not object to the probation officer’s inclusion of a
1993 conviction in the criminal history section of his presentence report. (Pet. at 2).
Johnson argues that his 1993 conviction falls outside the 15 year criminal history
inclusion limit established by U.S.S.G. 4A1.1(a) and 4A1.2(a, b, k, and e). Id.
Johnson also claims that the length of his sentence violates the 1987 United States
Sentencing Guideline Manual and that he never agreed to the amount of heroin stated
in his guilty plea agreement. (Pet. at 1-2). Lastly, Johnson argues that he was
prejudiced by the allegedly ineffective preparations of his counsel. (Pet. at 3).
INEFFECTIVE ASSISTANCE OF COUNSEL
A claim of ineffective assistance of counsel must be scrutinized under the
two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). First,
Johnson must show that “counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed [to] the defendant by the Sixth Amendment.” Id. at 687. In
evaluating this showing, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. The court seeks to “eliminate the distorting effects of
hindsight” by examining counsel’s performance from counsel’s perspective at the
time of the alleged error. Id.
Second, Johnson must show that the “deficient performance prejudiced the
defense.” Id. at 687. For this prong, he must demonstrate “a reasonable probability
that, but for the counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. Unless the defendant makes “both showings, it
cannot be said that the conviction…resulted from a breakdown in the adversary
process that renders the result unreliable.” Id. at 687. Further, there is a strong
presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690. When a
petitioner has pled guilty, as Johnson did here, he must show that there is a
“reasonable probability that, but for counsel’s errors, he would not have [pled] guilty
and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Johnson’s Counsel Was Not Deficient
Johnson first claims that his counsel failed to render effective assistance
because counsel did not object to the probation officer’s inclusion of a 1993
conviction in the criminal history section of the presentence report. Johnson argues
that his 1993 conviction falls outside the 15 year limit established in U.S.S.G. §
4A1.1(a) and 4A1.2 (a, b, k, and e) because he was released in November of 1997, 15
½ years prior to his indictment for the current offense. He also claims that the
sentence for his 1993 conviction was amended due to constitutional violations,
although he fails to state what these alleged violations were or how they affected his
sentence. In addition, Johnson asserts that the inclusion of his 1993 conviction
increased his sentence to 60 months by rendering him ineligible for the benefits of
the safety valve provisions under § 2D1.1(b)(17) that would have resulted in a
recommended sentence of 40 months. He requests that the Court take judicial notice
that his 1993 conviction was outside the 15 year requirement.
Counsel’s failure to contest the 1993 conviction’s inclusion in the presentence
report does not constitute ineffective assistance of counsel because this ground for
relief is without merit. Counsel’s failure to raise a meritless issue “does not
constitute ineffective assistance.” Dodge v. Robinson, 625 F.3d 1014, 1019 (8th
Cir. 2010). Under the United States Sentencing Guidelines, a sentence imposed
more than “fifteen years prior to the defendant’s commencement of the instant
offense is not counted unless the defendant’s incarceration extended into this
fifteen-year period.” U.S.S.G. § 4A1.1(a) cmt. n.1 (2014). Johnson has repeatedly
acknowledged that his conspiracy to distribute heroin commenced in January, 2012.
(Sentencing Tr., p. 12). Johnson’s previous incarceration until November 1997 was
within the 15 year period prior to Johnson’s January 2012 commencement of the
instant offense. At the sentencing hearing it was also established that, despite
Johnson’s allegations regarding its constitutionality, the 1993 conviction counted for
the purposes of his criminal history. (Sentencing Tr. at p. 31-32). Therefore,
further objection from Johnson’s counsel on these points would have been meritless
and frivolous. Johnson was not deprived of effective assistance of counsel. As
Johnson has failed to meet the first prong of the Strickland two-prong test, it is
unnecessary to consider the second. “Unless appellant can prove both prongs, an
appellate court must not find counsel's representation to be ineffective.” Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995) (a court does not need to address
both Strickland components if the movant fails to establish one of the prongs).
Counsels Miller and Cronin Were Not Ineffective
Johnson’s claim that he was prejudiced by the allegedly ineffective
preparations of his counsels is no more than a conclusory statement. Johnson
provides no evidence or explanations to support these vague claims. (Pet. at 3).
Without any factual basis, the claims are unsupported. Johnson has failed to show
that counsels’ performances were deficient. Strickland, 466 U.S. at 687.
In his § 2255 motion, Johnson also argues that his sentence length violates the
1987 United States Sentencing Guideline Manual and that he never agreed to the
amount of heroin stated in his guilty plea. Both of these claims are without merit.
The 1987 Sentencing Guideline Manual Does Not Apply
Johnson’s vague allegation that his sentence length violates the 1987 United
States Sentencing Guideline Manual is without merit. It was made clear to Johnson
that, per the language in his guilty plea agreement, the 2014 United States Sentencing
Guideline Manual would be applied in calculating his sentence. (Guilty Plea
Agreement, p. 6). His sentence was determined using the 2014 guidelines, and any
claim based upon the 1987 guidelines is irrelevant.
Johnson Agreed to the Stated Heroin Amount
Johnson’s additional claim that he never agreed to be held accountable for 700
grams to 1 kilogram of heroin is inaccurate. In the guilty plea agreement, Johnson
admitted under oath that he was responsible for 700 grams to 1 kilogram of the drug.
(Guilty Plea Agreement, p. 3). Further, at the change of plea hearing, I twice asked
Johnson if he understood the amount of heroin for which he was claiming
responsibility. (Change of Plea Hearing Tr., p. 12). Johnson responded twice in
the affirmative. Id.
In addition to Johnson’s repeated verbal confirmations that he was pleading to
700 grams to 1 kilogram of heroin, his counsel argued to reduce the amount to 100
grams but less that 400 grams. (Objections to the Presentence Investigation Report,
p. 1-11). The issue was considered at length, and it was ultimately decided that the
amount pled would remain 700 grams to 1 kilogram. Because this amount had been
agreed to and confirmed multiple times, Johnson’s current claim that he should not be
held accountable for 700 grams to 1 kilogram of heroin is without merit.
REQUEST FOR EVIDENTIARY HEARING
A petitioner is entitled to an evidentiary hearing on a § 2255 motion unless the
motion and the rules and records of the case conclusively show that he is entitled to
no relief. Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (citing
United States v. Ledezma-Rodriguez, F.3d 830, 835-36 (8th Cir. 2005)). Because
the record clearly shows that Johnson is not entitled to relief, an evidentiary hearing
will not be held.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from a final order in a §2255 proceeding unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). To grant such a certificate,
the judge must find a substantial showing of the denial of a federal constitutional
right. Id. at §2253(c)(2); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (“A
substantial showing is a showing that issues are debatable among reasonable jurists, a
court could resolve those issues differently, or the issues deserve further
proceedings.”). Because Johnson has not made such a showing, I will not issue a
certificate of appealability.
IT IS HEREBY ORDERED that Michael Johnson’s motion under 28 U.S.C.
' 2255 to Vacate, Set Aside, or Correct Sentence is DENIED.
IT IS FURTHER ORDERED that 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.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 1st day of December, 2017.
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