Johnson v. United Sates of America

Filing 21

Order Correcting the Docket; Order Denying Motion for Order Granting Requested Relief; Order Denying Motion to Strike; Order Denying Motion for a Default Judgment; Order Granting Motion for a Status Report; Order Granting Motion for Clarification of the Record; Order Denying Motion Pursuant to 28 U.S.C. § 2255; Order Denying Certificate of Appealability; and Order Certifying Appeal Not Taken in Good Faith. Signed by Judge S. Thomas Anderson on 7/11/11. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
vs.
MELVIN JOHNSON,
Defendant.

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Cv. No. 08-2216-STA-tmp
Cr. No. 06-20198-JDB

ORDER CORRECTING THE DOCKET
ORDER DENYING MOTION FOR ORDER GRANTING REQUESTED RELIEF
ORDER DENYING MOTION TO STRIKE
ORDER DENYING MOTION FOR A DEFAULT JUDGMENT
ORDER GRANTING MOTION FOR A STATUS REPORT
ORDER GRANTING MOTION FOR CLARIFICATION OF THE RECORD
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

On April 3, 2008, Defendant Melvin Johnson, Bureau of
Prisons inmate registration number 21048-076, an inmate at the
Federal Correctional Institution in Memphis, Tennessee, filed a pro
se motion pursuant to 28 U.S.C. § 2255. (ECF No. 1.)1 The Court
issued an order on November 6, 2008 directing the Government to
respond to the motion. (ECF No. 3.) On December 18, 2008, the Court
granted the Government’s motion for an extension of time, until
January 31, 2009, to file its response. (ECF No. 5.) The Government

1

The case was originally assigned to United States District Judge J.
Daniel Breen and was reassigned to this judge on May 21, 2008. (ECF No. 2.)

did not file a timely response and did not request a further
extension of time. On February 26, 2009, Defendant filed a motion
asking the Court to grant his § 2255 motion because of the
Government’s default. (ECF No. 6.) On March 2, 2009 and March 5,
2009, the Government filed motions seeking a further extension of
time, until March 6, 2009 (ECF Nos. 7 & 9), which the Court granted
on March 6, 2009 (ECF No. 10). The Government filed its Answer on
March 6, 2009, which was docketed as a response to Defendant’s
February 26, 2009 motion and which was, inexplicably, titled
Amended Response to the Defendant’s Motion for Relief Pursuant to
28 U.S.C. § 2255. (ECF No. 12.) The Answer was redocketed, without
the attachments, on March 9, 2009. (ECF No. 14.) On April 1, 2009,
Defendant filed Petitioner’s “Traverse” Response to Government’s
Response to Motion to Vacate/Correct Sentence Under 28 USC § 2255
(ECF No. 15), which was incorrectly docketed as a reply in further
support of the motion filed on February 26, 2009. The Clerk is
directed to correct the docket to reflect that the document
Defendant filed on April 1, 2009 is a reply to the Government’s
Answer.
Defendant’s February 26, 2009 motion to grant relief (ECF
No. 6) seeks entry of default and a default judgment. On December
14, 2010, Johnson filed Plaintiff’s [sic] Motion to Strike and
Motion for Default Judgment Pursuant to the Fed.R.Civ.P. 12(f) &
Rule 55(b)(2), which seeks to strike the Government’s Answer and to

2

enter judgment by default. (ECF No. 17.) The Court implicitly
denied

the

February

26,

2009

motion

when

it

granted

the

Government’s late-filed motion for an extension of time on March 6,
2009. Moreover, because Fed. R. Civ. P. 55(a) “has no application
in habeas corpus cases,” district judges cannot enter default
judgments in habeas cases without consideration of the merits of a
prisoner’s claims. Allen v. Perini, 424 F.2d 134, 138 (6th Cir.
1970). Defendant’s motions to grant the requested relief, to
strike, and for a default judgment, are DENIED.
On April 14, 2011, Defendant filed a motion seeking a
status report. On June 16, 2011, Defendant filed a Motion for
Clarification of the Record (ECF No. 20) that inquires about the
status of the case. For good cause shown, those motions are
GRANTED. The status of the case is set forth herein.
On May 23, 2006, a federal grand jury returned a singlecount

indictment

charging

Johnson,

a

convicted

felon,

with

possession of ammunition in or affecting interstate commerce on or
about February 8, 2006, in violation of 18 U.S.C. § 922(g).
(Indictment, United States v. Johnson, No. 06-20198-JDB (W.D.
Tenn.), ECF No. 1.) The factual basis for this charge is set forth
in the presentence report:
5.
The following information was gathered from a
review of materials contained within the files of the
United States Attorney, including offense reports
prepared by the [Memphis Police Department (“MPD”)].

3

6.
On February 8, 2006, MPD officers responded to
the call of a prowler at 3273 Walnut Grove, a duplex. The
prowler call was made by Marcus Overton, a resident of
one side of the duplex. Overton advised the officers that
he arrived home and observed Melvin Johnson coming out of
the adjacent duplex, which belonged to his (Overton’s)
cousin, Torey Henry. When the officers arrived, they
observed the defendant standing near the side of the
duplex. The defendant was detained and searched for
weapons, and he was found in possession of 18 rounds of
.380 caliber ammunition and three cell phones. Henry
arrived on the scene and identified the defendant as his
uncle. Henry also confirmed that the cellular telephones
belonged to him.
7.
Subsequent to arrest, and while in custody, the
defendant wrote a letter to his sister regarding her
grandson, Marcus Overton, the person who had first
telephoned the police to report the defendant as a
prowler. The letter reads in part, “I am facing the rest
of my life in prison. Thanks to your grandson Marcus
(Overton). Well, I need for you to brace yourself. Talk
to Elaine so the both of you can talk to Mark. That’s if
he wants to keep his private life private. I don’t want
you or Elaine to hate me for what’s going to happen if he
comes to court. Federal court is not a place where you
can try and hide anything. I did not want this to go this
far. But Mark brought this upon his self. My Lawyer and
investigators has his Drivers License # number . . . ,
D.O.B. . . . and Social Security # . . . and they are
digging up everything they can to stop him from coming to
court, they are going to bring up the reason he left the
Military and why he has moved from job to job, from
police dept. to police dept. I know how you feel about
your grandson, but this is my life he’s playing with. And
these people are trying to give me the remainder of my
life in prison for something he planted for me to pickup
off of that car when I got over there to buy it. Those
cell phones and bullets where [sic] on top of that car
when I got over there. My trial starts the second week in
June. I know this is going to cause ill feeling between
you, Elaine and Me. I am truly sorry.”
Victim Impact
home

8.
The defendant burglarized victim Torey Henry’s
and attempted to leave with three cellular

4

telephones. The property temporarily taken from Mr.
Henry’s home was returned to him.
(Presentence Report, ¶¶ 5-8.)
Johnson filed a motion to suppress on May 14, 2007 (Mot.
to Suppress with Incorporated Mem. of Law, id., ECF No. 26), and
the Government filed a response on June 4, 2007 (Response of the
United States to Def.’s Mot. to Suppress, id., ECF No. 32). On June
26,

2007,

defense

counsel

filed

a

motion

to

withdraw

the

suppression motion and to set a date for a change of plea. (Mot. to
Withdraw Mot. to Suppress and to Set Change of Plea Date, id., ECF
No. 40.) United States District Judge J. Daniel Breen issued an
order granting Defendant’s motion on June 26, 2007. (Order Granting
Def.’s Mot. to Withdraw Mot. to Suppress and to Set a Change of
Plea Date, id., ECF No. 41.)
On July 12, 2007, pursuant to a written plea agreement
(Plea Agreement, id., ECF No. 43), Johnson appeared before Judge
Breen to enter a guilty plea to the sole count of the indictment.
The Plea Agreement, which was made pursuant to Fed. R. Crim. P.
11(c)(1)(C), provided, in pertinent part, as follows:
The United States and MELVIN JOHNSON agree that a
sentence of 180 months imprisonment is an appropriate and
reasonable sentence in this case, in light of MELVIN
JOHNSON’s withdrawal of his motion to suppress and his
waiver of his right to appeal. In addition, it is the
position of the United States that an enhancement for
obstruction of justice is not appropriate in this case
based on the facts currently known to the United States
absent additional investigation. In addition, in light of
the defendant’s guilty plea, the United States will not
pursue additional investigation of these potential
5

charges, or enhancements, based on obstruction of justice
related to the instant case based on actions occurring
prior to July 11, 2007.
Given the facts in possession of the United States
at the time of the writing of this agreement, the United
States does not oppose to [sic] the defendant receiving
the full three points for acceptance of responsibility
pursuant to U.S.S.G. Section 3E1.1. The defendant
understands that if the United States receives
information between the signing of this agreement and the
time of sentencing that the defendant has previously
engaged in, or if he engages in the future, in conduct
inconsistent with the acceptance of responsibility,
including, but not limited to, participation of [sic] any
additional criminal activities between now and the time
of sentencing, this position could change. Further, the
defendant understands that whether or not acceptance of
responsibility credit pursuant to Section 3E1.1 is
granted is a matter to be determined by the district
court. Failure of the district court to grant acceptance
of responsibility credit is not a basis for MELVIN
JOHNSON to withdraw his guilty plea.
Defendant understands that Title 18, United States
Code Section 3742 gives him the right to appeal the
sentence imposed by the Court. Acknowledging this,
defendant knowingly and voluntarily waives his right to
appeal any sentence imposed by the Court and the manner
in which the sentence is determined so long as the
sentence [sic] 180 months. This waiver is made in
exchange for the concessions made by the United States in
this Plea Agreement. The waiver in this paragraph does
not apply to claims relating to prosecutorial misconduct
and ineffective assistance of counsel.
. . . .
MELVIN JOHNSON agrees that this plea agreement
constitutes the entire agreement between himself and the
United States and that no threats have been made to
induce him to plead guilty. By signing this document,
MELVIN JOHNSON acknowledges that he has read this
agreement, has discussed it with his attorney and
understands it.
If the Court determines that MELVIN JOHNSON is not
an ARMED CAREER CRIMINAL, then the parties agree that a
6

sentence no higher than the low end of the applicable
guideline range is the appropriate and reasonable
sentence in this case.
(Id. at 2-4.) Judge Breen issued an order on July 12, 2007
accepting Defendant’s guilty plea. (Order on Change of Plea and
Setting, id., ECF No. 44.)
Judge Breen conducted a sentencing hearing on October 17,
2007, at which Johnson was sentenced as an armed career criminal to
a term of imprisonment of one hundred eighty (180) months, to be
followed by a three-year period of supervised release. (Min. Entry,
id., ECF No. 47.)2 Johnson did not take a direct appeal.
In this § 2255 motion, Johnson raises the following
issues:

2

Pursuant to § 2K2.1(a)(2) of the United States Sentencing Guidelines
(“U.S.S.G.”), the base offense level for unlawful possession of ammunition is 24
if the defendant committed any part of the instant offense subsequent to
sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense. The Court rejected the recommendation in the
presentence report that Johnson be afforded a two-level enhancement, pursuant to
U.S.S.G. § 3C1.1, for obstruction of justice because of a letter he had written
to a potential Government witness. The Court also rejected the recommendation
that Johnson receive a four-level enhancement, pursuant to U.S.S.G. §
2K2.1(b)(5), because he possessed the ammunition in connection with another
felony offense, in this case, aggravated burglary. Johnson received a three-point
reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1,
resulting in a total offense level of 21. Given his criminal history category of
VI, the guideline sentencing range was 77-96 months.
However, because of prior convictions for attempted aggravated
assault, aggravated assault, burglary (of a residence), and burglary of a
building, Johnson was sentenced as an armed career criminal pursuant to the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and U.S.S.G. § 4B1.4. As a
result, pursuant to U.S.S.G. § 4B1.4(b)(3)(B), the base offense level was 33.
Johnson received a three-point reduction for acceptance of responsibility, giving
him a total offense level of 30. Given his criminal history of VI, the guidelines
provided a sentencing range of 168-210 months. Johnson was also subject to a
mandatory minimum sentence of 15 years, or 180 months, pursuant to 18 U.S.C. §
924(e)(1).

7

1.

Whether his conviction was obtained by use of
evidence gained pursuant to an unconstitutional
search and seizure;

2.

Whether
his
attorney
rendered
ineffective
assistance, in violation of the Sixth Amendment;
and

3.

Whether he was denied the right to take a direct
appeal.

(ECF No. 1 at 4.)
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject
to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the
sentence.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege
either (1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact or
law that was so fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006)
(internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal.
See Sunal v. Lange, 332 U.S. 174, 178, 67 S. Ct. 1588, 1590,

91 L.

Ed. 1982 (1947). “[N]onconstitutional claims that could have been
raised on appeal, but were not, may not be asserted in collateral
proceedings.” Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S. Ct.

8

3037, 3044 n.10, 49 L. Ed. 2d 1067 (1976). “Defendants must assert
their claims in the ordinary course of trial and direct appeal.”
Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule
is not absolute:
If claims have been forfeited by virtue of ineffective
assistance of counsel, then relief under § 2255 would be
available subject to the standard of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). In those rare instances where the defaulted
claim is of an error not ordinarily cognizable or
constitutional error, but the error is committed in a
context that is so positively outrageous as to indicate
a “complete miscarriage of justice,” it seems to us that
what is really being asserted is a violation of due
process.
Id.
Even constitutional claims that could have been raised on
direct appeal, but were not, will be barred by procedural default
unless the defendant demonstrates cause and prejudice sufficient to
excuse his failure to raise those issues previously. El-Nobani v.
United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of
guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th
Cir. 2001) (new Supreme Court decision issued during pendency of
direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th
Cir. 2000) (trial errors). Alternatively, a defendant may obtain
review of a procedurally defaulted claim by demonstrating his
“actual innocence.” Bousley v. United States, 523 U.S. 614, 622
(1998).

9

After a § 2255 motion is filed, it is reviewed by the
Court and, “[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.” Rule
4(b), Rules Governing Section 2255 Proceedings for the United
States District Courts (“Section 2255 Rules”). “If the motion is
not dismissed, the judge must order the United States attorney to
file an answer, motion, or other response within a fixed time, or
to take other action the judge may order.” Id. The movant is
entitled to reply to the Government’s response. Rule 5(d), Section
2255 Rules. The Court may also direct the parties to provide
additional information relating to the motion. Rule 7, Section 2255
Rules.
“In reviewing a § 2255 motion in which a factual dispute
arises, ‘the habeas court must hold an evidentiary hearing to
determine the truth of the petitioner’s claims.’” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v.
United States, 183 F.3d 474, 477 (6th Cir. 1999)). “‘[N]o hearing
is required if the petitioner’s allegations cannot be accepted as
true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.’” Id.
(quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.
1999)). Defendant has the burden of proving that he is entitled to

10

relief by a preponderance of the evidence. Pough v. United States,
442 F.3d 959, 964 (6th Cir. 2006).
In his second issue,3 Johnson asserts that his trial
counsel rendered ineffective assistance, in violation of the Sixth
Amendment. (ECF No. 1 at 4.) The factual basis for that issue is
the following:
I was told by Mr. Lee Gerald that he was filing a motion
to suppress[,] and after the motion went forward he
tell’s [sic] me that I should back out of the motion
without any reason or explanation. The only reason given
is I would be enhanced, if I had the hearing.
(Id.)
In its response, the Government has filed the affidavit
of Johnson’s defense attorney, Lee Gerald, who states, in pertinent
part, as follows:
4.
That in connection with and as a part of said
practice I was appointed, pursuant to the Criminal
Justice Act, to and did represent Melvin Johnson in
certain criminal proceedings in the United States
District Court for the Western District of Tennessee.
Specifically, I defended Mr. Johnson in a prosecution in
which he was charged in a one count indictment with the
illegal possession of ammunition.
5.
That I met with Mr. Johnson personally
approximately thirteen (13) times during the course of
this proceeding. Many of these meetings were in the state
court room, where Mr. Johnson was charged with Burglary
arising out of the same facts before the District Court
on the above numbered indictment.
6.
That I requested and the District Court
approved the appointment of an investigator to locate and

3

In the interest of clarity, the Court will address the second issue
before the first issue.

11

interview certain witnesses, to cull records
multiple sources and to issue multiple subpoenas.

from

6.
That I, along with the investigator, spoke with
and interviewed multiple witnesses in attempts to bolster
Mr. Johnson’s version of the events which led to his
arrest.[4]
7.
That multiple conversations were had with Mr.
Johnson in which he was informed that no witnesses were
willing to assist him or to provide helpful testimony if
subpoenaed.
8.
That Mr. Johnson communicated via the United
States Mail with potential government witnesses in what
could be construed as an attempt to discourage said
witnesses from appearing in the United States District
Court when subpoenaed by the United States.
9.
That a Motion to Suppress Evidence was filed on
behalf of Mr. Johnson in the United States District
Court.
10. That the Assistant United States Attorney in
this matter agreed to not pursue a sentencing enhancement
under Obstruction of Justice and to recommend to the
Court that Mr. Johnson be sentenced at the lowest
possible statutory sentence if Mr. Johnson withdrew his
Motion to Suppress and entered a change of plea.
11. That I met with Mr. Johnson and discussed
orally and with the assistance of a diagram the range of
sentencing possibilities if he chose to go forward on the
Motion to Suppress and was unsuccessful.
12. That Mr. Johnson,
rights and fully informed
agreement did knowingly,
duress, withdraw his Motion
plea to guilty on the above

after being advised of his
of the terms of the plea
intelligently and without
to Suppress and change his
numbered indictment.

13. That I met with [the] Assistant Tennessee
Attorney General assigned to Mr. Johnson’s state charge
of burglary and as a result of multiple meetings with

4

The affidavit submitted by defense counsel contains two paragraphs
numbered “6.”

12

said prosecutor, the State of Tennessee agreed to dismiss
all state charges against Mr. Johnson.
(Aff. of Lee Gerald, sworn to on Mar. 5, 2009, ECF No. 11-2.)
A

claim

that

ineffective

assistance

of

counsel

has

deprived a defendant of his Sixth Amendment right to counsel is
controlled by the standards stated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate
deficient performance by counsel, a petitioner must demonstrate
that “counsel’s representation fell below an objective standard of
reasonableness.”

Id.

at

688,

104

S.

Ct.

at

2064.

“A

court

considering a claim of ineffective assistance must apply a ‘strong
presumption’ that counsel’s representation was within the ‘wide
range’ of reasonable professional assistance. [Strickland, 466
U.S.] at 689, 104 S. Ct. 2052. The challenger’s burden is to show
‘that

counsel

made

errors

so

serious

that

counsel

was

not

functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’ Id., at 687, 104 S. Ct. 2052.” Harrington v. Richter,
___ U.S. ___, 131 S. Ct. 770, 787, 178 L. Ed. 2d 624 (2011).
To demonstrate prejudice, a prisoner must establish “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.5 “A reasonable

5
“[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant.” Id. at 697,
104 S. Ct. at 2069. If a reviewing court finds a lack of prejudice, it need not
determine whether, in fact, counsel’s performance was deficient. Id.

13

probability is a probability sufficient to undermine confidence in
the outcome.” Id. “It is not enough ‘to show that the errors had
some

conceivable

effect

on

the

outcome

of

the

proceeding.’

[Strickland, 466 U.S.] at 693, 104 S. Ct. 2052. Counsel’s errors
must be ‘so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.’ Id., at 687, 104 S. Ct. 2052.”
Richter, 131 S. Ct. at 787-88; see also id. at 791-92 (“In
assessing prejudice under Strickland, the question is not whether
a court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. . . . The likelihood
of a different result must be substantial, not just conceivable.”)
(citations omitted); Wong v. Belmontes, ___ U.S. ___, 130 S. Ct.
383, 391-92, 175 L. Ed. 2d 328 (2009) (per curiam) (“But Strickland
does not require the State to ‘rule out’ [a more favorable outcome]
to prevail. Rather, Strickland places the burden on the defendant,
not the State, to show a ‘reasonable probability’ that the result
would have been different.”).
“Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. ___, ___, 130 S. Ct. 1473,
1385, 176 L. Ed. 2d 284 (2010).
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues
not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve.
14

Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even
under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and
with the judge. It is “all too tempting” to “second-guess
counsel’s assistance after conviction or adverse
sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell v.
Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d
914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113
S. Ct. 838, 122 L. Ed. 2d 180 (1993). The question is
whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Richter, ___ U.S. at ___, 131 S. Ct. at 788.
The

two-part

test

stated

in

Strickland

applies

to

challenges to guilty pleas based on the ineffective assistance of
counsel. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 36970, 88 L. Ed. 2d 203 (1985). “Where, as here, a defendant is
represented by counsel during the plea process and enters his plea
upon the advice of counsel, the voluntariness of the plea depends on
whether

counsel’s

advice

‘was

within

the

range

of

competence

demanded of attorneys in criminal cases.’” Id. at 56, 106 S. Ct. at
369 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct.
1441, 1449, 25 L. Ed. 2d 763 (1970)). “[T]o satisfy the ‘prejudice’
requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”

Id. at

59, 106 S. Ct. at 370; see also Padilla, 559 U.S. at ___, 130 S. Ct.
at 1485 (“[T]o obtain relief on this type of claim, a [prisoner]
15

must convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.”).6
In his motion, Johnson asserts that his attorney withdrew
the suppression motion “without any reason or explanation” apart
from the assertion that “I would be enhanced, if I had the hearing.”
(ECF No. 1 at 4.) In his reply to the Government’s Answer, Johnson
stated

that

his

“plea

agreement

was

entered

unknowingly,

unintelligently, and thus involuntarily.” (ECF No. 15 at 1.) These
assertions are not supported by the transcript of the change of plea
hearing.
At the plea hearing, Johnson stated that he had read the
indictment and discussed it with his attorney (07/12/07 Tr. at 7)
and that he understood what he was being charged with (id. at 7-8).
He also understood the penalties that could be imposed. (Id. at 89.) Johnson testified under oath that he understood the purpose of

6

The Supreme Court emphasized that,

[i]n many guilty plea cases, the “prejudice” inquiry will closely
resemble the inquiry engaged in by courts reviewing ineffective
assistance challenges to convictions obtained through a trial. For
example, where the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evidence, the
determination whether the error “prejudiced” the defendant by
causing him to plead guilty rather than going to trial will depend
on the likelihood that discovery of the evidence would have led
counsel to change his recommendation as to the plea. This
assessment, in turn, will depend in large part on a prediction
whether the evidence likely would have changed the outcome of a
trial. Similarly, where the alleged error of counsel is a failure to
advise the defendant of a potential affirmative defense to the crime
charged, the resolution of the “prejudice” inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial.
Hill, 474 U.S. at 59, 106 S. Ct. at 370-71.

16

the hearing, he had had a sufficient opportunity to review the plea
agreement and discuss it with his attorney, and he was satisfied by
the advice and representation provided by his attorney. (Id. at 5.)
Johnson acknowledged that he understood all the rights he was
waiving by pleading guilty. (Id. at 5-7.) He testified that nobody
had threatened him or tried to force him to plead guilty. (Id. at
9.) He identified his signature on the plea agreement (id. at 9-10),
and he affirmed that he entered into the agreement freely and
voluntarily (id. at 10). The terms of the plea agreement were
described (id. at 10-13), and Johnson stated that that description
was consistent with his understanding of the agreement (id. at 13).
Johnson acknowledged that he understood that he was waiving the
right to appeal his conviction and sentence “except for certain
exceptions.” (Id. at 15.) He also agreed with the Government’s
statement of the facts it would be prepared to prove at trial. (Id.
at 16.)
Johnson’s

conclusory

allegations

are

insufficient

to

warrant an evidentiary hearing. Johnson’s testimony at the change of
plea hearing is entitled to a heavy presumption of truthfulness.
Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L.
Ed. 2d 136 (1977). Had Johnson chosen to reject the plea agreement
and pursue his suppression hearing, he might have been subject to a

17

longer sentence.7 Even if he chose to plead guilty at a later date,
he might have faced an enhancement for obstruction of justice and
the loss of the reduction for acceptance of responsibility. He also
faced the risk that he could have received a sentence higher than
the statutory minimum sentence for an armed career criminal that was
imposed.
The second issue is without merit and is DISMISSED.
In his first issue, Johnson asserts that his conviction
was

obtained

by

the

use

of

evidence

gained

pursuant

to

an

unconstitutional search and seizure. The factual basis for this
issue consists of the assertion that, “[a]t the time of my arrest
which was the date of February 8-2006 [sic], a Memphis Police
Officer arrested me for the crime of burglary[,] which were later
dismissed.” (ECF No. 1 at 4; see also ECF No. 15 at 1.)8

7

As will be discussed infra, the suppression motion lacked merit.

8
The Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 48995, 96 S. Ct. 3037, 3050-53, 49 L. Ed. 2d 1067 (1976), makes clear that Fourth
Amendment issues ordinarily may not be raised on collateral review where, as
here, the defendant had a full and fair opportunity to litigate the suppression
issue prior to trial and on direct appeal. See also United States v. Johnson, 457
U.S. 537, 562 n.20, 102 S. Ct. 2579, 2594 n.20, 73 L. Ed. 2d 202 (1982) (“After
Stone v. Powell, 428 U.S. 465 (1976), the only cases raising Fourth Amendment
challenges on collateral attack are those federal habeas corpus cases in which
the State has failed to provide a state prisoner with an opportunity for full and
fair litigation of his claim, analogous federal cases under 28 U.S.C. § 2255, and
collateral challenges by state prisoners to their state convictions under
postconviction relief statutes that continue to recognize Fourth Amendment
claims.”); Boone v. United States, No. 96-1398, 1996 WL 627760, at *2 (6th Cir.
Oct. 29, 1996); Richardson v. United States, No. 93-6193, 1994 WL 194197, at *2
(6th Cir. May 16, 1994); Kapsalis v. United States, 345 F.2d 392, 394 (7th Cir.
1965). Stone’s restriction on federal habeas review of Fourth Amendment claims
does not apply to ineffective assistance of counsel claims that are founded
primarily on ineffective representation with respect to a Fourth Amendment issue.
Kimmelman v. Morrison, 477 U.S. 365, 382-83, 106 S. Ct. 2574, 2587, 91 L. Ed. 2d
305 (1986). Because Defendant argues, in effect, that defense counsel rendered
(continued...)

18

In McCann v. Richardson, 397 U.S. 759, 771, 90 S. Ct.
1441, 1449, 25 L. Ed. 2d 763 (1970), the Supreme Court held that
habeas relief was not available to a prisoner seeking to challenge
his guilty plea on the basis that his confession had been coerced.9
Subsequently, in Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.
Ct. 1602, 1607-08, 36 L. Ed. 2d 235 (1971), the Supreme Court
extended the reasoning of cases such as McCann to hold that a
defendant who has entered a guilty plea on the advice of counsel may
8

(...continued)
ineffective assistance by recommending that he withdraw his suppression motion,
the Court will address the first issue on the merits.
9

The Supreme Court explained why it is illogical for a criminal
defendant to plead guilty when the allegedly coerced confession is the primary
evidence against him:
Since we are dealing with a defendant who deems his confession
crucial to the State’s case against him and who would go to trial if
he thought his chances of acquittal were good, his decision to plead
guilty or not turns on whether he thinks the law will allow his
confession to be used against him. For the defendant who considers
his confession involuntary and hence unusable against him at a
trial, tendering a plea of guilty would seem a most improbable
alternative. The sensible course would be to contest his guilt,
prevail on his confession claim at trial, on appeal, or, if
necessary, in a collateral proceeding, and win acquittal, however
guilty he may be. . . . If he nevertheless pleads guilty the plea
can hardly be blamed on the confession which in his view was
inadmissible evidence and no proper part of the State’s case. Since
by hypothesis the evidence aside from the confession is weak and the
defendant has no reasons of his own to plead, a guilty plea in such
circumstances is nothing less than a refusal to present his federal
claims to the state court in the first instance—a choice by the
defendant to take the benefits, if any, of a plea of guilty and then
to pursue his coerced-confession claim in collateral proceedings.
Surely later allegations that the confession rendered his plea
involuntary would appear incredible . . . .
A more credible explanation for a plea of guilty by a
defendant who would go to trial except for his prior confession is
his prediction that the law will permit his admissions to be used
against him by the trier of fact.
Id. at 768-69, 90 S. Ct. at 1447-48. This analysis is equally applicable to
Defendant’s decision to plead guilty despite his belief that the bullets were
seized in violation of the Fourth Amendment.

19

not obtain collateral relief on proof that the indicting grand jury
was

unconstitutionally

selected

in

the

absence

of

ineffective

assistance of counsel. As the Supreme Court explained, these cases
rest on the same general principal:
[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may
only attack the voluntary and intelligent character of the
guilty plea by showing that the advice he received from
counsel was not within the standards set forth in McCann.
Id. at 267, 93 S. Ct. at 1608.10

The written Plea Agreement in this

case does not reserve the right to appeal any issue with respect to
guilt, as required by Fed. R. Crim. P. 11(a)(2). Indeed, the Plea
Agreement makes clear that Johnson withdrew the suppression motion
and waived his right to appeal as part of the consideration for the
guilty plea. Johnson has, therefore, waived any suppression issue by
his unconditional guilty plea. United States v. Herrera, 265 F.3d
349, 351-52 (6th Cir. 2001) (applying Fed. R. Crim. P. 11(a)(2));
United States v. Pickett, 941 F.2d 411, 415-17 (6th Cir. 1991)
(same).

10

Technically, the issue is not “waived” as a matter of constitutional
law. Menna v. New York, 423 U.S. 61, 62 n.2, 96 S. Ct. 241, 242 n.2, 46 L. Ed.
2d 195 (1975) (defendant, by pleading guilty, did not waive a claim that the
indictment should have been dismissed under the double jeopardy clause of the
Fifth Amendment); see also Haring v. Prosise, 462 U.S. 306, 319-22, 103 S. Ct.
2368, 2376-77, 76 L. Ed. 2d 595 (1983) (a defendant’s guilty plea does not waive
a subsequent suit under 42 U.S.C. § 1983 for an alleged Fourth Amendment
violation).

20

Even if that were not the case, the suppression motion is
without merit. Marcus Overton called the police and reported that he
saw Johnson coming out of the duplex next door. When the officers
arrived, they observed Johnson standing near the side of the duplex.
At a minimum, the police were entitled to question Johnson and to
search his person to ensure their safety while doing so.11 After
questioning Johnson, the police had probable cause to arrest him for
the offense of aggravated burglary.12
This conclusion is not altered by the fact that the statecourt burglary charge was subsequently dismissed.

A Fourth Amendment

claim for false arrest requires an arrest without probable cause.
See, e.g., Parsons v. City of Pontiac, 533 F.3d 492, 500 (6th Cir.
2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2432, 174 L. Ed. 2d
227 (2009); Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th
Cir. 2003) (“Today it is well established that an arrest without
probable cause violates the Fourth Amendment.”). Probable cause

11
Pursuant to Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 188485, 20 L. Ed. 2d 889 (1968), a police officer is permitted to make a brief
investigatory stop when he has a reasonable suspicion that criminal activity may
be afoot and to pat down a subject to ensure that he is not armed. An officer’s
reasonable suspicion must be supported by “specific and articulable facts.” Id.
at 21, 88 S. Ct. at 1880; see also Illinois v. Wardlow, 528 U.S. 119, 123-24, 120
S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000) (“The officer must be able to
articulate more than an ‘inchoate and unparticularized suspicion or “hunch”’ of
criminal activity.”) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883). In this
case, the police were responding to the complaint of a named individual who
identified Johnson as the person who had allegedly broken into the duplex next
door to him.
12
Under Tennessee law, burglary is the entry into a building without
the consent of the property owner with intent to commit a theft. Tenn. Code Ann.
§ 39-14-402(a). Aggravated burglary is burglary of a habitation. Id., § 39-14403.

21

exists

where

“‘facts

and

circumstances

within

the

officer’s

knowledge . . . are sufficient to warrant a prudent person, or one
of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing or is about to commit
an

offense.”

Crockett,

316

F.3d

at

580

(quoting

Michigan

v.

DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 2632, 61 L. Ed. 2d 343
(1979)); see also Wolfe v. Perry, 412 F.3d 707, 717 (6th Cir. 2005)
(“probable cause necessary to justify an arrest is defined as
‘whether at that moment [of the arrest] the facts and circumstances
within [the officers’] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in
believing that the [arrestee] had committed or was committing an
offense’”) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223,
225, 13 L. Ed. 2d 142 (1964)) (alterations in original); Gardenhire
v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000). The fact that an
arrest does not result in a conviction does not necessarily mean
that the arrest itself was unlawful. Because the relevant inquiry
concerns the information available to the officer at the time of the
arrest, “[a] valid arrest based upon then-existing probable cause is
not vitiated if the suspect is later found innocent.” Criss v. City
of Kent, 867 F.2d 259, 262 (6th Cir. 1988); see also Baker, 443 U.S.
at 145, 99 S. Ct. at 2695 (“The Constitution does not guarantee that
only the guilty will be arrested. If it did, § 1983 would provide a
cause of action for every defendant acquitted—indeed, for every

22

suspect released.”). Where, as here, there was probable cause to
arrest Johnson for burglary, the subsequent decision to drop the
state-court charges does not require that the evidence obtained
during the search of his person be suppressed. DeFillippo, 443 U.S.
at 39-40, 99 S. Ct. at 2633.
The first issue is without merit and is DISMISSED.
In his third issue, Johnson contends that he was denied
the right to take a direct appeal. (ECF No. 1 at 4.) Notably, he
does not contend that he asked his attorney to file a notice of
appeal and his attorney failed to do so.13 Instead, he states that
“[t]he prosecutor wrote it up in the plea agreement that I would not
have an appeal against my sentence in this case.” (Id.)
The Plea Agreement in this case contained an appeal waiver
provision. See supra p. 6. This waiver is binding if it is made
knowingly and voluntarily. Watson v. United States, 165 F.3d 486,
489 (6th Cir. 1999). Judge Breen found that the appeal waiver in
this case was intelligent and voluntary. (07/12/2007 Tr. at 10, 15;
10/17/2007 Tr. at 36-37.) The third issue is without merit and is
DISMISSED.

13

Defendant is not raising a claim under Rodriguez v. United States,
395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969). Such a claim requires a
defendant to request his attorney to file a notice of appeal. Roe v. FloresOrtega, 528 U.S. 470, 477 (2000); Regalado v. United States, 344 F.3d 520, 525-26
& n.3 (6th Cir. 2003); Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.
1998).

23

Defendant’s

conviction

and

sentence

are

valid

and,

therefore, his motion is DENIED. Judgment shall be entered for the
United States.
Twenty-eight U.S.C. § 2253(a) requires the district court
to evaluate the appealability of its decision denying a § 2255
motion and to issue a certificate of appealability (“COA”) "only if
the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Fed. R. App.
P. 22(b). No § 2255 movant may appeal without this certificate.
A

COA

may

issue

only

if

the

petitioner

has

made

a

substantial showing of the denial of a constitutional right, and the
COA must indicate the specific issue(s) which satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is
made when the movant demonstrates that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should
have

been

presented

resolved
were

in

a

‘adequate

different
to

manner

deserve

or

that

encouragement

the
to

issues
proceed

further.’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct.
1029, 1039, 154 L. Ed. 2d 931 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 84, 120 S. Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000));
Henley v. Bell, 308 F. App’x 989 (6th Cir. 2009) (same), cert.
denied, ___ U.S. ___, 129 S. Ct. 1057, 173 L. Ed. 2d 482 (2009). A
COA does not require a showing that the appeal will succeed. Miller,
537 U.S. at 337; 123 S. Ct. at 1039; Caldwell v. Lewis, Nos. 08-5156

24

& 08-5157, 2011 WL 915764, *5 (6th Cir. Mar. 16, 2011) (same).
Courts should not issue a COA as a matter of course. Bradley v.
Birkett, 156 F. App’x 771, 773 (6th Cir. 2005) (quoting Slack, 537
U.S. at 337, 123 S. Ct. at 1039).
In this case, there can be no question that the issues
raised in this § 2255 motion are without merit for the reasons
previously stated. Because any appeal by Defendant on the issues
raised in this motion does not deserve attention, the Court DENIES
a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation
Reform Act of 1995, 28 U.S.C. § 1915(a)-(b), does not apply to
appeals of orders denying § 2255 motions. Kincade v. Sparkman, 117
F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis
in a § 2255 case, and thereby avoid the appellate filing fee
required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain
pauper status pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d
at 952. Rule 24(a) provides that a party seeking pauper status on
appeal must first file a motion in the district court, along with a
supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a)
also provides that if the district court certifies that an appeal
would not be taken in good faith, or otherwise denies leave to
appeal in forma pauperis, the prisoner must file his motion to
proceed in forma pauperis in the appellate court. See Fed. R. App.
P. 24(a) (4)-(5).

25

In this case, for the same reasons the Court denies a
certificate of appealability, the Court determines that any appeal
would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter
would not be taken in good faith, and leave to appeal in forma
pauperis is DENIED.14
IT IS SO ORDERED this 11th day of July, 2011.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

14

If Defendant files a notice of appeal, he must also pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.

26