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Johnson v. United States

United States District Court, E.D. Missouri, Eastern Division

December 1, 2017

MICHAEL JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         Johnson 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.

         On 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.

         In his 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).

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         A claim 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. Id.

         Second, 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).

         A. Johnson's Counsel Was Not Deficient

         Johnson 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 year requirement.

         Counsel's 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).

         B. Counsels Miller and Cronin Were Not Ineffective

         Johnson's 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 ...


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