Johnson v. United States of America
Filing
14
OPINION AND ORDER. For the foregoing reasons, Johnson's section 2255 petition is denied. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, this Court declines to issue a Certificate of Appealabi lity. The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk of the Court is directed to close this motion [Dkt. No. 1] and this case. (Signed by Judge Shira A. Scheindlin on 11/12/2015) (rjm)
withheld exculpatory information from the defense.4
II.
BACKGROUND
On August 9, 2011, a jury convicted Johnson and two co-conspirators
for their role in a mortgage fraud conspiracy which took place between 2007 and
2010. Johnson was also convicted of fraudulently obtaining a mortgage loan in
April 2007 for a property located in the Bronx.5 Through the fraudulent scheme,
Johnson and his co-conspirators recruited individuals to act as straw purchasers of
previously identified residential property, later using the nominee purchasers’
credit scores and false information to create fraudulent applications for mortgage
loans.6 By skimming proceeds from the mortgage loans and collecting rent
payments from tenants as well as Section 8 rent subsidies from the city for certain
properties, Johnson was able to profit substantially from the fraud.7
This Court held a sentencing hearing on August 2, 2012. After
4
See Motion Requesting an Evidentiary Hearing on Petitioner’s Motion
to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. Section 2255 (“Pet.
Supp. Br.”).
5
See Government’s Opposition to Petitioner Owen Johnson, Sr.’s
Motion Pursuant to 28 U.S.C. § 2255 to Correct, Vacate, or Set Aside His
Conviction (“Opp. Mem.”) at 3.
6
See id. at 4-7.
7
See id. at 7-8
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reviewing the Probation Department’s Revised Pre-Sentence Report (the “PSR”)
which set Johnson’s total offense level at 31 and recommended a sentence range
between 108 and 135 months’ imprisonment, the Court sentenced Johnson to 72
months in prison to be followed by three years of supervised release.8 The Court
further imposed a two hundred dollar mandatory special assessment and forfeiture
in the amount of $4,849,075.9
On August 14, 2012, Johnson filed a notice of appeal through courtappointed appellate counsel.10 In a subsequent, supplemental pro se brief, Johnson
argued that (1) the district court abused its discretion by not addressing Johnson’s
pre-trial claims of ineffective assistance of counsel, and (2) the government
committed a Brady violation by withholding exculpatory information pertaining to
its investigation into Golden First Mortgage.11 On February 4, 2014, the Second
Circuit affirmed the conviction and sentence, rejecting each of Johnson’s claims
with the exception of the ineffective assistance of counsel claim which it dismissed
without prejudice.12
8
See id.
9
See 10/2/12 Sentencing Transcript, Ex. 3 to Opp. Mem., at 24.
10
See Opp. Mem. at 13.
11
See id.
12
See United States v. Johnson, 553 Fed. App’x 78 (2d Cir. 2014).
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In the instant motion, Johnson expands his claims for ineffective
assistance of counsel, arguing that his trial counsel, Gregory Cooper, sentencing
counsel, Richard Lind, and appellate counsel, Daniel Perez, provided
constitutionally deficient representation.13 In addition, Johnson revives his
Brady claim14 and argues that the government violated his right to due process by
knowingly offering perjured witness testimony.15
III.
APPLICABLE LAW
A.
Section 2255
Section 2255 allows a convicted person held in federal custody to
petition the sentencing court to vacate, set aside or correct a sentence. Specifically,
“[s]ection 2255 provides that a prisoner sentenced by a federal court may move to
have that sentence vacated, set aside or corrected if he or she claims that the court,
in sentencing him or her, violated the Constitution or the laws of the United States,
improperly exercised jurisdiction, or sentenced him or her beyond the maximum
13
See Pet. Decl. at 6-7, 9-10; see also Pet. Supp. Br. at 2-7, 14-22, 27;
and Petitioner’s Reply to Government’s Opposition to His Motion Pursuant to 28
U.S.C. § 2255 (“Reply Mem.”) at 4-23, 33-49, 53-60.
14
See Pet. Supp. Br. at 22.
15
See Pet. Decl. at 9.
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time authorized by law.”16
A properly filed motion under section 2255 must allege that: (1) the
sentence was imposed in violation of the Constitution or laws of the United States;
(2) the sentencing court was without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or (4) the sentence is
otherwise subject to collateral attack.17 Accordingly, relief under section 2255 is
available “only for a constitutional error, a lack of jurisdiction in the sentencing
court, or an error of law or fact that constitutes a fundamental defect which
inherently results in [a] complete miscarriage of justice.”18 Because collateral
challenges are in tension with society’s strong interest in the finality of criminal
convictions, courts have established rules that “make it more difficult for a
defendant to upset a conviction by collateral, as opposed to direct, attack.”19
“A petition for habeas corpus relief requires an evidentiary hearing to
resolve disputed issues of fact unless the record shows that the petitioner is not
16
Thai v. United States, 391 F.3d 491, 493 (2d Cir. 2005).
17
See 28 U.S.C. § 2255.
18
Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per
curiam) (quotation marks and citations omitted).
19
Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)
(quotation marks and citations omitted).
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entitled to relief.”20 However, a court may deny a section 2255 petition without
holding a hearing where: (1) the petition lacks “meritorious allegations” that can be
established by “competent evidence;”21 (2) the case files and records conclusively
demonstrate that the petitioner is not entitled to relief;22 or (3) the allegations of the
petition, even if accepted as true, would not entitle the petitioner to relief.23 “The
decision whether to hold an evidentiary hearing on a 2255 motion is generally left
to the discretion of the district court.”24
In order to warrant an evidentiary hearing, the habeas application
“must contain assertions of fact that a petitioner is in a position to establish by
competent evidence . . . . Airy generalities, conclusory assertions and hearsay
statements will not suffice.”25 A court is not required to presume the credibility of
20
Ortega v. United States, 897 F. Supp. 771, 781 (S.D.N.Y. 1995)
(citing Hayden v. United States, 814 F.2d 888, 891 (2d Cir. 1987)). See also 28
U.S.C. § 2255(b).
21
United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987).
22
United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990).
23
See Rosa v. United States, 170 F. Supp. 2d 388, 398 (S.D.N.Y. 2001)
(citing Chang v. United States, 250 F.3d 78, 85-86 (2d Cir. 2001)).
24
Swerbilov v. United States, No. 04 Civ. 3320, 2005 WL 1177938, at
*2 (E.D.N.Y. May 18, 2005) (citing Newfield v. United States, 565 F.2d 203, 207
(2d Cir. 1997)).
25
Aiello, 814 F.2d at 113.
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factual assertions “where the assertions are contradicted by the record in the
underlying proceeding.”26 Moreover, “‘[i]f it plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion.’”27 Depending on the
allegations in the petition, a “court may use methods under [s]ection 2255 to
expand the record without conducting a full-blown testimonial hearing.”28
Potential methods available to a court to supplement the record include “‘letters,
documentary evidence, and, in an appropriate case, even affidavits.’”29
Because petitioner is appearing pro se, the Court construes the
petition liberally and interprets it to raise the strongest arguments that it suggests.30
B.
Procedural Default
It is well-settled that, with the exception of claims alleging ineffective
26
Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009).
27
Id. at 213 (quoting Rule 4(b) of the Rules Governing § 2255
Proceedings for the United States District Courts).
28
Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001) (citing
Blackledge v. Allison, 431 U.S. 63, 81-82 (1977) (stating that courts “may employ
a variety of measures in an effort to avoid the need for an evidentiary hearing”)).
29
Id. (quoting Raines v. United States, 423 F.2d 526, 529-30 (4th Cir.
1970) (footnote omitted)).
30
See Erickson v. Pardus, 551 U.S. 89, 84 (2007); Green v. United
States, 260 F.3d 78, 83 (2d Cir. 2001); McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir. 1999).
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assistance of counsel,31 federal prisoners may not employ section 2255 as a
substitute for direct appeal,32 nor can they use it as a vehicle to relitigate issues that
have previously been raised and addressed on direct appeal.33 As the Supreme
Court explained in United States v. Frady, “[o]nce the defendant’s chance to
appeal has been waived or exhausted . . . we are entitled to presume he stands fairly
and finally convicted, especially when . . . he already has had a fair opportunity to
present his federal claims to a federal forum.”34
C.
Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a petitioner
must show that: (1) his attorney’s performance fell below “an objective standard of
reasonableness” under “prevailing professional norms”; and (2) that he suffered
prejudice as a result of that representation.35 When considering the first factor, a
court must apply a “strong presumption” that counsel’s representation fell within
31
See Massaro v. United States, 538 U.S. 500, 509 (2003).
32
See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); United
States v. Addonizio, 442 U.S. 178, 184-85 (1979).
33
Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)) (“[S]ection
2255 may not be employed to relitigate questions which were raised and
considered on direct appeal.”) (quotations omitted).
34
Frady, 456 U.S. at 164.
35
Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984).
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the “wide range” of reasonable professional assistance.36 It is the petitioner’s
burden to show “‘that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’”37
“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”38 “In assessing the attorney’s
performance, a reviewing court must judge his conduct on the basis of the facts of
the particular case, ‘viewed as of the time of counsel’s conduct,’ and may not use
hindsight to second-guess his strategy choices.”39
Even if an attorney’s performance is objectively unreasonable, a
petitioner must still prove prejudice.40 “It is not enough ‘to show that the errors
had some conceivable effect on the outcome of the proceeding.’”41 “The
[petitioner] 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
36
Id. at 689. Accord Bell v. Cone, 535 U.S. 685, 697-98 (2002).
37
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland,
466 U.S. at 687).
38
Strickland, 466 U.S. at 690.
39
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting
Strickland, 466 U.S. at 690).
40
See Strickland, 466 U.S. at 687.
41
Harrington, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 693).
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reasonable probability is a probability sufficient to undermine confidence in the
outcome.”42 As explained by the Supreme Court, the order of analysis of the two
Strickland prongs — performance and prejudice — is at the discretion of the
court.43
[T]here is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order
or even to address both components of the inquiry if the
defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not
to grade counsel’s performance. If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.44
Thus, if the court finds that there is no prejudice, it need not reach the performance
prong.45
“Although the Strickland test was formulated in the context of
42
Strickland, 466 U.S. at 694.
43
Id. at 693 (“Even if a defendant shows that particular errors of counsel
were unreasonable, . . . the defendant must show that they had actually had an
adverse effect on the defense.”).
44
Id. at 697.
45
See Farrington v. Senkowski, 214 F.3d 237, 242 (2d Cir. 2000)
(stating that courts need not resolve the Strickland performance prong if the
prejudice prong is more readily resolved).
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evaluating a claim of ineffective assistance of trial counsel, the same test is used
with respect to appellate counsel.”46 In advancing a claim of ineffective assistance
of appellate counsel, “it is not sufficient for the habeas petitioner to show merely
that counsel omitted a nonfrivolous argument, for counsel does not have a duty to
advance every nonfrivolous argument that could be made.”47 “However, a
petitioner may establish constitutionally inadequate performance if he shows that
counsel omitted significant and obvious issues while pursuing issues that were
clearly and significantly weaker.”48
D.
Habeas Relief Based on Perjured Witness Testimony
A witness commits perjury if he “gives false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.”49 However, “[a] showing of
perjury at trial does not in itself establish a violation of due process warranting
habeas relief.”50 “Instead, when false testimony is provided by a government
witness without the prosecution’s knowledge, due process is violated only ‘if the
46
Mayo, 13 F.3d at 533.
47
Id.
48
Id.
49
United States v. Dunnigan, 507 U.S. 87, 94 (1993).
50
Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003).
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testimony was material and the court is left with a firm belief that but for the
perjured testimony, the defendant would most likely not have been convicted.’”51
Where the government “knew or should have known of the perjury, the conviction
must be set aside if there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury.”52
IV.
DISCUSSION
A.
Ineffective Assistance of Counsel Claims Against Trial,
Sentencing, and Appellate Counsel
1.
Trial Counsel
Johnson argues that he received ineffective assistance of counsel
because Cooper was not prepared for trial and failed to conduct or direct a
professional to conduct an investigation during the pre-trial stage.53 He specifically
contends that Cooper (1) failed to adequately review the government’s voluminous
51
Id. (quoting United States v. Wallach, 935 F.2d 445, 456 (2d Cir.
1991)) (footnote and alterations omitted).
52
Wallach, 935 F.2d at 456 (internal quotation marks omitted). Accord
Ortega, 333 F.3d at 108 n. 4 (“Although Wallach involved a direct appeal from a
federal district court conviction, rather than a collateral attack on a state conviction
through habeas, we find its reasoning applicable here.”); Conteh v. United States,
226 F. Supp. 2d 514, 519 (S.D.N.Y. 2002) (applying Wallach to a section 2255
petition).
53
See Pet. Decl. at 5; see also Pet. Supp. Br. at 2-5, 14-18, 20-22.
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discovery submissions;54 (2) improperly declined “to interview any of the
individuals who [he] asked to be interviewed as potential witnesses in support of
the defense that he is actually innocent of the offense”;55 (3) prevented Johnson
from testifying at trial;56 and (4) improperly relied on Johnson, rather than an
investigator, to collect certain documents in preparation for trial but ultimately
decided not to use them as evidence.57
Johnson argues as a general basis for claiming ineffective assistance
of trial counsel that, had a better case been made on his behalf, the evidence would
have demonstrated a competing version of the events that was sufficiently credible
and persuasive to rebut the government’s case and compel the jury to find that
Johnson was innocent. He argues, for instance, that witness testimony would have
communicated Johnson’s “good faith effort to operate a legitimate real estate
company intended on meeting its financial obligations while generating a profit.”58
Johnson identifies six witnesses who could have testified helpfully at trial, four of
whom were purchasers who either continued living in the properties at issue or
54
See Pet. Supp. Br. at 2-5.
55
Id. at 15-18.
56
See id. at 19-20.
57
See id. at 4-5.
58
Id. at 17.
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sold them after making improvements.59 Johnson also argues that various
documents and receipts would have further shown that he refurbished and
otherwise invested in the properties obtained by his company.60
The record demonstrates, however, that Cooper reviewed the
government’s discovery documents and made significant efforts to investigate the
case prior to trial. At the July 12, 2011 hearing convened in response to Johnson’s
request for a new attorney, Cooper confirmed with the Court that he had reviewed
the government’s approximately twenty thousand pages of discovery documents
and was prepared to discuss them with Johnson.61 The Court explained to Johnson
that it had received multiple applications from Cooper prior to the hearing which
showed investigations were proceeding, and that it was “satisfied that Cooper has
been working on this case.”62 Indeed, Cooper attested that “[o]n August 1, 2011
[he] was fully prepared for trial, having reviewed the voluminous pre-trial
discovery as well as the provided 3500 material.”63
59
See id. at 17-18.
60
See id.
61
See 7/11/11 Transcript at 3-4.
62
Id. at 8.
63
7/16/15 Declaration of Gregory Cooper (“Cooper Decl.”), Ex. 1 to
Opp. Mem., ¶ 13.
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Further, Cooper was not ineffective because he continued to review
trial documents and made efforts to contact witnesses during the weekend prior to
trial. As the Court explained at the July 29, 2011 hearing, it is not unusual for
attorneys to receive 3500 material from the government at the last minute, and
Cooper cannot be faulted for failing to contact witnesses whom he learned of on
the eve of the trial — or for not contacting witnesses that he recognized but
preferred not to call based on his professional judgment.64 Based on this record, I
am satisfied that Cooper was sufficiently competent and prepared to represent
Johnson at trial.
Johnson’s claim that Cooper’s decision to forgo the testimony of
several potential witnesses, including the six individuals whom Johnson has
identified, constituted ineffective assistance of counsel also lacks merit. According
to Johnson, four of the named witnesses would have provided helpful testimony by
explaining that they purchased real estate with Johnson’s assistance and either
refurbished and resold the homes or are still living in the properties after having
repaid their mortgage.65 Johnson additionally names Jillian Gbidi, who once
worked with Johnson but later joined Golden First as a loan processor, and an
64
See 7/29/11 Hearing Transcript (“Tr.”), Ex. 4 to Opp. Mem., at 17-18.
65
See Pet. Supp. Br. at 17-18.
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attorney who participated in many of the property transactions at issue in the
case.66 However, Johnson’s claims with respect to these witnesses are based on his
own summaries and are not substantiated by sworn statements or declarations from
these witnesses.
Even if Johnson could prove with competent evidence that each
individual would have testified to the facts set forth in his summaries, Cooper’s
decision not to call them as trial witnesses was neither deficient nor improper, let
alone consistent with a colorable claim for ineffective assistance of counsel. Two
of the proposed witnesses had been initially charged as co-conspirators in the
fraudulent mortgage scheme, and the proposed attorney witness has been
suspended from practicing law for engaging in fraudulent practices.67 In addition,
two of the individuals identified by Johnson were relatives.68 Assuming that these
witnesses would have been willing to testify at Johnson’s trial, counsel cannot be
faulted for deciding that the risks associated with calling potential co-conspirators
to a crime and a defendant’s relatives — who would undoubtedly face crossexamination concerning their knowledge of the scheme and possible biases —
66
See id.
67
See Cooper Decl. ¶ 8.
68
See id.
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outweighed any potential benefit that their testimony could have achieved.
Further, because the testimony Johnson describes is immaterial to his
culpability in the fraudulent mortgage application scheme, its absence did not
cause prejudice. Johnson was charged with conspiracy to commit bank and wire
fraud based on his central role in submitting falsified mortgage applications in
order to profit from fraudulently obtained loans.69 At trial, the government
provided evidence that Johnson trained two co-conspirators to identify potential
straw purchasers, recruited straw purchasers himself, and played a key role in
falsifying various components of the mortgage applications such as employment
history and income. This evidence was sufficient to convince the jury of Johnson’s
guilt beyond a reasonable doubt, and it is doubtful that the outcome would have
been any different had the jury known that, in a few instances, purchasers were
able to resell property which Johnson helped them purchase or remain in those
homes while fulfilling their mortgage obligations. These facts, had they been
credibly established, likely would have had no bearing on the jury’s determination
that Johnson falsified mortgage applications during the period at issue or engaged
in other fraudulent activity, as they are irrelevant to an evaluation of Johnson’s
criminal conduct.
69
See Opp. Mem. at 34-38.
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Johnson’s claim that he was deprived of effective assistance of
counsel because Cooper advised him not to testify at trial is equally unavailing.70
As with witnesses whose testimony may do more harm than good, a defendant who
testifies exposes himself to all of the risks inherent in the adversarial process.
Here, Johnson’s conclusory assertion that his testimony would have provided the
jury with exonerating evidence is insufficient to establish that Cooper’s advice was
constitutionally deficient.
Finally, Cooper’s decision to ask Johnson to collect certain publicly
available court papers for the purposes of impeaching government witnesses was
not improper. As this Court explained at the July 29, 2011 conference, clients
regularly assist their attorneys to prepare for trial when they are competent to do
so.71 Johnson was indeed competent to assist in this task, as evidenced by his
successful retrieval of the court records. Moreover, this Court has no basis to find
that Cooper’s decision not to use those records at trial was deficient. A court is not
permitted to second-guess counsels’ post-investigation trial strategy.72
70
Johnson acknowledges that he was aware that “the decision to testify
was his,” and does not contend that Cooper prevented him from testifying. Rather,
Johnson takes issue with Cooper’s recommendation that he not testify because
Cooper believed it would not be beneficial to Johnson. See Reply Mem. at 53-55.
71
See 7/29/11 Tr. at 20-21.
72
See Strickland, 466 U.S. at 690.
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2.
Sentencing Counsel
Johnson argues that his attorney at sentencing was ineffective because
he failed to object to the government’s loss calculation found in the PSR for being
erroneous, arbitrary, and not supported by evidence.73 The Court disagrees. In
order to determine the total loss borne by the victim banks, the government
calculated the sum of the fraudulently obtained loans, $10,324,988, and discounted
it by seventy percent to reach a total of $3,097,496.40.74 Johnson does not provide
a specific factual or legal basis for challenging this calculation.
Moreover, the Court notes that Lind undertook a significant effort to
challenge the government’s loss calculation by engaging an experienced appraiser
to evaluate some of the properties at issue in the case.75 However, because the
results of the appraisals were unhelpful to Lind’s goal of demonstrating a total loss
amount that correlated to a lesser Offense Level adjustment, Lind consulted with
Johnson and decided to contest the properties included in the loss calculation,
rather than continue evaluating losses associated with individual property.76
3.
Appellate Counsel
73
See Pet. Decl. at 6.
74
See Opp. Mem. at 42.
75
See 8/6/15 Declaration of Richard Lind, Ex. 2 to Opp. Mem., ¶ 7.
76
See id. ¶¶ 8-10.
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Johnson contends that he received ineffective assistance of counsel
because Perez declined to raise Johnson’s Brady claim — as well as claims for
ineffective assistance of counsel and violation of due process — and improperly
advised Johnson not to pursue the due process claim because there was a limit to
the amount of appealable issues.77 Johnson also argues that Perez was deficient in
handling the two issues raised by Johnson in his supplemental pro se brief during
oral argument.78
Perez’s appellate efforts were not ineffective. In response to
Johnson’s request to raise claims of government misconduct — offering perjured
trial testimony and committing Brady violations — Perez explained that he was
procedurally barred from raising issues that were not preserved below.79 However,
Perez did assist Johnson to obtain permission from the Second Circuit to file a
supplemental pro se brief, an avenue which Johnson utilized to argue ineffective
assistance of counsel and violations of his rights under Brady.80 In this regard,
Perez’s decision to decline to advance what he believed to be procedurally barred
77
See Pet. Decl. at 9-10; see also Pet. Supp. Br. at 28-29.
78
See Pet. Supp. Br. at 28-29.
79
See 8/6/15 Declaration of Daniel Perez (“Perez Decl.”), Ex. 5 to Opp.
Mem., ¶¶ 5-6.
80
See id.
20
claims but assist Johnson in raising them on his own accord was not deficient.
Moreover, Perez was not obligated to raise every nonfrivolous argument that could
be made.81 Therefore, his representation was not constitutionally deficient.
Johnson’s argument that Perez prevented him from raising the due
process claim on appeal is also without merit. Perez attests that he did not advise
Johnson to limit the issues he raised on appeal but explained that certain claims
were barred for procedural reasons.82 Perez further states that Johnson did not
identify which testimony he believed was perjurious.83 Nevertheless, Johnson was
aware that he could have raised the perjured testimony claim in the supplemental
brief along with his Brady and ineffective assistance of counsel claims. Indeed, the
purpose of the supplemental brief was to raise those arguments which Perez
advised against raising in his direct appeal. That Johnson chose not to raise the due
process claim on direct appeal does not suggest ineffective assistance of counsel on
Perez’s part.
Finally, Johnson’s contention that Perez’s performance during oral
argument was inadequate is belied by the record. Indeed, Perez’s oral argument
81
Mayo, 13 F.3d at 533.
82
See Perez Decl. ¶¶ 5-6.
83
See id. ¶ 5.
21
focused largely on the supplemental claim for ineffective assistance of counsel.84
B.
Petitioners’ Brady and Due Process Claims
1.
Government’s Withholding of Brady Materials
Johnson’s Brady claim focuses on the government’s withholding of
information concerning its investigation into Golden First, JP Morgan Securities,
JP Morgan Chase Bank, and EMC Mortgage for fraudulent mortgage practices and
other activities. Johnson argues that information related to the government’s
investigation into Golden First is especially relevant and material to his case.
However, the Second Circuit previously reviewed this issue on direct appeal and
rejected it on its merits. Accordingly, Johnson’s Brady claim is not properly
before this Court, and is dismissed.
2.
Perjured Witness Testimony
Johnson argues that the government violated his right to due process
by suborning perjured testimony, thereby depriving Johnson of a fair trial. He
claims that “several of the witnesses that testified at trial about their role in the
scheme [ ] testif[ied] falsely so as to bolster the case against petitioner.”85
Johnson’s support for this claim is limited to a declaration from his son, Owen
84
See id. ¶ 7.
85
Pet. Decl. at 9.
22
Johnson, Jr., who attests that co-defendant Kevin Absalom visited his home in July
2011 and revealed that the government compelled him to lie about his involvement
in one of the transactions.86
In order for a petitioner to be granted habeas relief on the basis of
perjured testimony, the Court must first accept that the testimony offered at trial
was false. I am not persuaded — based solely on Johnson Jr.’s hearsay declaration
— that Absalom lied about his knowledge of or involvement in the 4530 Hill
Avenue real estate purchase. Even assuming arguendo that Absalom lied to the
government about his knowledge or involvement, there is no basis to conclude that
the alleged truthful testimony — that Absalom “knew nothing about the
property”87 — would have resulted in Johnson’s acquittal. Accordingly, this claim
lacks merit and must be dismissed.
C.
A Hearing Is Not Required
After examining the record, briefs, declarations, and exhibits, I find
that Johnson’s ineffective assistance of counsel and due process claims are
meritless and unsupported by competent evidence. Because the remaining Brady
claim is procedurally defaulted, it too must be dismissed. Accordingly, no
86
See 9/22/14 Declaration of Owen Johnson, Jr., Attachment “A” to
Reply Mem., ¶ 7.
87
Id.
23
-AppearancesPetitioner (Pro Se):
Owen Johnson, Sr.
Reg. No. 63499-054
Moshannon Valley Correctional Center
55 Geo Drive
Phillipsburg, PA 16866
For Respondent:
Rosemary Nidiry
Assistant United States Attorney
Southern District of New York
One St. Andrew’s Plaza
New York, NY 10007
212 637-1063
25
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