Johnson v. USA

Filing 11

Memorandum Opinion and Order... The court ORDERS that movant's § 2255 motion be, and is hereby, denied. Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule ll(a) of the Rules Governing Section 2255 Proceedings for th e United States District Courts, and 28 U.S.C. § 2253(c) (2), for the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 4/21/2015) (wxc)

IN THE UNITED STATES DIST
NORTHERN DISTRICT OF
FORT WORTH DIVISI

ANTHONY TROY JOHNSON,

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Movant,

vs.
UNITED STATES OF AMERICA,
Respondent.

NO. 4:15-CV-118-A
(NO. 4:12-CR-225-A)

MEMORANDUM OPINION
and
ORDER
Came on for decision the motion of Anthony Troy Johnson
("movant") under 28 U.S.C.

§

2255 to vacate, set aside, or

correct sentence by a person in federal custody.

After having

considered such motion, the government's response, the pertinent
parts of the record in Case No. 4:12-CR-225-A, styled "United
States of America v. James Lee Williams, II, et al.," and
pertinent legal authorities, the court has concluded that such
motion should be denied.
I.

Background
On March 18, 2013, movant pleaded guilty to one count of
wire fraud,

in violation of 18

u.s.c.

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1343.

On July 5, 2013,

the court sentenced movant to a term of imprisonment of 48 months
to be followed by a three-year term of supervised release.
Movant appealed his sentence to the United States Court of
Appeals for the Fifth Circuit, which affirmed by a judgment
issued as a mandate on May 5, 2014.

He sought a writ of

certiorari from the United States Supreme Court, which was denied
October 6, 2014.

Movant filed his

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2255 motion on February 26,

2015, the government responded on March 18, 2015, and movant did
not file a reply.
II.
Grounds of the Motion
The two grounds of the motion and the facts supporting each
of those grounds, as stated in the motion, are as follows:

GROUND ONE: A 1993 Insufficient Funds Check was
erroneously use against Movant to incorrectly upward
variance or upward depart Movants sentence.
(a) Supporting facts:
It is common knowledge that sentences for felony
sentences are counted against a Movant. However,
sentences for misdemeanor and petty offenses are
counted, EXCEPT AS FOLLOWS:
Insufficient funds check.
Additionally, I believe the statute of limitations had
been run on the 1993 insufficient funds check, which is
fifteen years (15).
The year 2013 - 1993 = 20 years.
This Insufficient funds check is five (5) years beyond
the statute of limitations, and should have never been
allowed our used by ANY member of Court.
Mot. at 5 (errors in original).

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GROUND TWO: A 1995 forgery of financial instrument
charge was erroneously used against Movant to
incorrectly upward variance Movants sentence.
(a) Supporting facts:
Once again, it is well documented that any prior
sentence of imprisonment exceeding one year and one
month that was imposed with FIFTEEN {15) YEARS of the
Movants commencement of the instant offense is counted.
HOWEVER, this 1995 forgery of financial instrument
was, AGAIN, beyond the federal statute of limitations
to be used in Court to justify the erroneous increase
of time to my sentence. The forged financial
instrument charge was adjudged in 1995.
So the doing
the statute of limitations math, the instant case was
in 2013 - 1995 = 18 years, three (3) years beyond the
statute.
Id. at 6.
III.

Analysis
A.

Legal Standard for 28 U.S.C.

§

2255

After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
fairly and finally convicted.

United States v. Frady, 456 U.S.

152, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991).

A defendant can challenge his conviction or

sentence after it is presumed final on issues of constitutional
or jurisdictional magnitude only, and may not raise an issue for
the first time on collateral review without showing both "cause"
for his procedural default and "actual prejudice" resulting from
the errors.

Shaid, 937 F.2d at 232.

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Section 2255 does not offer recourse to all who suffer trial
errors.

It is reserved for transgressions of constitutional

rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.

United States v. Capua, 656 F.2d 1033,

1037 (5th Cir. Unit A Sept. 1981).

In other words, a writ of

habeas corpus will not be allowed to do service for an appeal.
Davis v. United States, 417 U.S. 333, 345 (1974).

Further, if

issues •are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
collateral attack."
(5th Cir. 1979)

Moore v. United States, 598 F.2d 439, 441

(citing Buckelew v. United States, 575 F.2d 515,

517-18 (5th Cir. 1978)).
B.

The Grounds of the Motion are not Cognizable under 28 U.S.C.
§ 2255
Movant appears to be proceeding on the incorrect assumption

that the court is limited by some time period for the
consideration of criminal history of movant.

Of course, the

court is entitled to consider movant's entire criminal history in
evaluating what sentence to impose.

After considering movant's

criminal history, the court concluded that a sentence
significantly above the top of the advisory guideline range would
be appropriate in movant's case.

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Moreover, movant cannot assert the grounds he states in his
motion because those grounds are barred by reason of movant's
failure to raise them on direct appeal and because of his failure
to show any cause and prejudice to avoid procedural default.
United States v. Guerra, 94 F.3d 989, 993-94.

See

Movant has adduced

no evidence that there was any objective factor external to the
defense that prevented him from raising his current complaints on
direct appeal, nor can movant point to any evidence that he
suffered any prejudice,
different.

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that the result would have been

Moreover, his complaints lack arguable merit.

Therefore, neither of movant's grounds provided basis for
any habeas relief for movant.

IV.
Order
Therefore,
The court ORDERS that movant's

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2255 motion be, and is

hereby, denied.

* * * * *
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
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2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
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denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED April 21, 2015.

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