Johnson v. USA

Filing 11

MEMORANDUM DECISION & ORDER: The court finds the Mr. Johnson's counsel's performance was not deficient, and even if it were, there was no prejudice to Mr. Johnson. The motion is therefore DENIED as to 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge David Sam on 08/09/2018. (kpf)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

DARRELL R. JOHNSON,

MEMORANDUM DECISION

Petitioner,

AND ORDER

v.
UNITED STATES OF AMERICA,

2:17-CV-01312-DS

Respondent.

Petitioner Darrell R. Johnson, pursuant to 28 U.S.C. § 2255, has filed a Motion to Vacate,
Set Aside, or Correct his Sentence. The related criminal case is United States v. Johnson,
2:15cr128 DS. Mr. Johnson claims that his counsel was ineffective at sentencing because
counsel failed to petition the court for a reduction of Mr. Johnson’s sentence for the time that he
was in state custody. He argues that because the State initially charged him with two firearm
cases that are the underlying charges in his federal case, he should receive credit with the Bureau
of Prisons for the time he served in state custody.

I. LEGAL STANDARD
“[A] petitioner raising an ineffective assistance of counsel claim carries a ‘heavy
burden.’” Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002). To establish ineffective
assistance of counsel, a defendant must satisfy the two part test of Strickland v. Washington: 1)
the defendant must show that his counsel’s performance was deficient, and 2) the defendant must

demonstrate that the deficient performance prejudiced the defense so as “to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 66768 (1984). In order for Mr. Johnson to prevail on his motion, he must establish both prongs of
the Strickland test. United States v. Carr, 80 F.3d 413 (10th Cir. 1996).
To prove that counsel’s performance was deficient, a defendant must show “that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland at 687. Furthermore, the defendant must show
that counsel’s performance fell below an objective standard of reasonableness. Id. at 688.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “[C]ounsel is
strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690.
“[T]he overriding question under the first prong of Strickland is whether, under all the
circumstances, counsel performed in an objectively unreasonable manner.” Bullock v. Carver,
297 F.3d 1036, 1046 (10th Cir. 2002).
Two presumptions inform our objective reasonableness inquiry. First, we always
start the analysis that an attorney acted in an objectively reasonable manner and
that an attorney’s challenged conduct might have been part of a sound trial
strategy. Second, where it is shown that a particular decision was, in fact, an
adequately informed strategic choice, the presumption that the attorney’s decision
was objectively reasonable becomes “virtually unchallengeable.”

Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002).
“When reviewing an ineffective assistance of counsel claim, we must make every effort
‘to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’” Id. at

1052. “[I]nquiry into counsel’s conversations with the defendant may be critical to a proper
assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment
of counsel’s other litigation decisions.” Strickland at 691.
To establish prejudice under Strickland, a defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “[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.” Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.” Id.

II. LEGAL ANALYSIS
Mr. Johnson asserts in his 2255 motion that he spent 281 days in state custody on the
“state gun offenses.” ECF No. 1 at 10. The state record does not show this to be the case. Mr.
Johnson was initially charged in the Third District Court of Utah on February 10, 2015, for
possession of a dangerous weapon by a restricted person for conduct that occurred on February
9, 2015. See ECF No. 4-1 at 2. Mr. Johnson was also charged in the Third District Court of Utah
for possession of a dangerous weapon by a restricted person for conduct that occurred on
February 20, 2015. ECF No. 4-2 at 2. On February 23, 2015, Mr. Johnson was booked on
warrants issued in both of these state cases. On March 20, 2015, the State of Utah moved to
dismiss both of the state cases, which involved conduct for which Mr. Johnson was charged
federally in the underlying criminal case on March 11, 2015.

Mr. Johnson asserts that he was in custody continuously from the date of arrest to the
date of sentencing. However, his time in state custody, for which he seeks credit for time served,
only adds up to be a total of 25 days, and only nine of those days were served by Mr. Johnson
between March 11, 2015 (the date he was indicted in this court) and March 20, 2015 (the date the
two state cases were dismissed). Therefore, at issue here are only nine days of custody, not the
281 days that Mr. Johnson claims he served on the “state gun offenses.” ECF No. 1 at 10.
As described above, in order to succeed on his 2255 motion, Mr. Johnson must
demonstrate both that his counsel’s performance was deficient and that the deficiency resulted in
prejudice to Mr. Johnson. Strickland at 697. According to the Presentence Report, Mr.
Johnson’s Guideline Provisions were based upon a total offense level of 19, criminal history
category VI, which created a guideline range of 63 to 78 months imprisonment. PSR ¶ 62.
Counsel for Mr. Johnson negotiated a very favorable 11(c)(1)(C) agreement that recommended a
sentence of 63 months imprisonment, the low end of the Guideline range, with the option to
withdraw his plea if the Court did not sentence him to the 63-month agreed upon sentence. (Doc.
15 ¶12 (b)(2).) Mr. Johnson’s counsel did not request credit for the nine days Mr. Johnson served
in state custody for the gun charge he pleaded guilty to in this Court. This is not deficient
performance, as it is an extremely minimal amount of time for counsel to consider in light of
negotiating a sentence of 63 months. Therefore, Mr. Johnson cannot show that his counsel’s
performance was deficient. And even if the performance were somehow found to be deficient, a
nine-day difference in a 63-month sentence, does not constitute prejudice.

III. CONCLUSION
Based on the foregoing, the court finds that Mr. Johnson’s counsel’s performance was not
deficient, and even if it were, there was no prejudice to Mr. Johnson. The motion is therefore
DENIED.
IT IS SO ORDERED.
DATED this 9th day of August 2018.
BY THE COURT:

DAVID SAM
Senior Judge
United States District Court