United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
matter is before me on the motion of Michael Johnson to
vacate, set aside, or correct a sentence by a person in
federal custody pursuant to 28 U.S.C. § 2255. For the
reasons set forth below, Johnson's motion will be denied.
was indicted on May 1, 2013, along with nine co-defendants,
for violations of 21 U.S.C. § 841(b)(1)(B), conspiracy
to distribute heroin, and 21 U.S.C. § 846, possession
with intent to distribute heroin. On January 7, 2015, Johnson
entered into a guilty plea.
April 28, 2015, Johnson was sentenced to 60 months of
imprisonment and four years of supervised release. Johnson
filed an appeal. On November 9, 2015, the Court of Appeals
affirmed Johnson's sentence. Johnson filed his present
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255 on January 31, 2017.
motion, Johnson claims that he was denied effective
assistance of counsel because his counsel did not object to
the probation officer's inclusion of a 1993 conviction in
the criminal history section of his presentence report. (Pet.
at 2). Johnson argues that his 1993 conviction falls outside
the 15 year criminal history inclusion limit established by
U.S.S.G. 4A1.1(a) and 4A1.2(a, b, k, and e). Id.
Johnson also claims that the length of his sentence violates
the 1987 United States Sentencing Guideline Manual and that
he never agreed to the amount of heroin stated in his guilty
plea agreement. (Pet. at 1-2). Lastly, Johnson argues that he
was prejudiced by the allegedly ineffective preparations of
his counsel. (Pet. at 3).
INEFFECTIVE ASSISTANCE OF COUNSEL
of ineffective assistance of counsel must be scrutinized
under the two-part test articulated in Strickland v.
Washington, 466 U.S. 668 (1984). First, Johnson must
show that “counsel's performance was deficient.
This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel'
guaranteed [to] the defendant by the Sixth Amendment.”
Id. at 687. In evaluating this showing,
“[j]udicial scrutiny of counsel's performance must
be highly deferential.” Id. at 689. The court
seeks to “eliminate the distorting effects of
hindsight” by examining counsel's performance from
counsel's perspective at the time of the alleged error.
Johnson must show that the “deficient performance
prejudiced the defense.” Id. at 687. For this
prong, he must demonstrate “a reasonable probability
that, but for the counsel's unprofessional errors, the
result of the proceeding would have been different.”
Id. at 694. Unless the defendant makes “both
showings, it cannot be said that the
conviction…resulted from a breakdown in the adversary
process that renders the result unreliable.”
Id. at 687. Further, there is a strong presumption
that counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment.” Id. at 690. When a
petitioner has pled guilty, as Johnson did here, he must show
that there is a “reasonable probability that, but for
counsel's errors, he would not have [pled] guilty and
would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
Johnson's Counsel Was Not Deficient
first claims that his counsel failed to render effective
assistance because counsel did not object to the probation
officer's inclusion of a 1993 conviction in the criminal
history section of the presentence report. Johnson argues
that his 1993 conviction falls outside the 15 year limit
established in U.S.S.G. § 4A1.1(a) and 4A1.2 (a, b, k,
and e) because he was released in November of 1997, 15
½ years prior to his indictment for the current
offense. He also claims that the sentence for his 1993
conviction was amended due to constitutional violations,
although he fails to state what these alleged violations were
or how they affected his sentence. In addition, Johnson
asserts that the inclusion of his 1993 conviction increased
his sentence to 60 months by rendering him ineligible for the
benefits of the safety valve provisions under §
2D1.1(b)(17) that would have resulted in a recommended
sentence of 40 months. He requests that the Court take
judicial notice that his 1993 conviction was outside the 15
failure to contest the 1993 conviction's inclusion in the
presentence report does not constitute ineffective assistance
of counsel because this ground for relief is without merit.
Counsel's failure to raise a meritless issue “does
not constitute ineffective assistance.” Dodge v.
Robinson, 625 F.3d 1014, 1019 (8th Cir. 2010). Under the
United States Sentencing Guidelines, a sentence imposed more
than “fifteen years prior to the defendant's
commencement of the instant offense is not counted unless the
defendant's incarceration extended into this fifteen-year
period.” U.S.S.G. § 4A1.1(a) cmt. n.1 (2014).
Johnson has repeatedly acknowledged that his conspiracy to
distribute heroin commenced in January, 2012. (Sentencing
Tr., p. 12). Johnson's previous incarceration until
November 1997 was within the 15 year period prior to
Johnson's January 2012 commencement of the instant
offense. At the sentencing hearing it was also established
that, despite Johnson's allegations regarding its
constitutionality, the 1993 conviction counted for the
purposes of his criminal history. (Sentencing Tr. at p.
31-32). Therefore, further objection from Johnson's
counsel on these points would have been meritless and
frivolous. Johnson was not deprived of effective assistance
of counsel. As Johnson has failed to meet the first prong of
the Strickland two-prong test, it is unnecessary to
consider the second. “Unless appellant can prove both
prongs, an appellate court must not find counsel's
representation to be ineffective.” Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995) (a court
does not need to address both Strickland components
if the movant fails to establish one of the prongs).
Counsels Miller and Cronin Were Not Ineffective
claim that he was prejudiced by the allegedly ineffective
preparations of his counsels is no more than a conclusory
statement. Johnson provides no evidence or explanations to
support these vague claims. (Pet. at 3). Without any factual
basis, the claims are unsupported. Johnson has failed to ...