Johnson v. U.S.

• Decision Date: 25 November 2003
• Docket Number: No. 3:98-CV-479 (EBB).,No. 3:93-CR-240 (EBB).,3:93-CR-240 (EBB).,3:98-CV-479 (EBB).
• Court: U.S. District Court — District of Connecticut
• Parties: Neil JOHNSON, Petitioner v. UNITED STATES of America, Respondent.

307 F.Supp.2d 380

Neil JOHNSON, Petitioner v. UNITED STATES of America, Respondent.

No. 3:93-CR-240 (EBB).

No. 3:98-CV-479 (EBB).

United States District Court, D. Connecticut.

November 25, 2003.

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Neil Johnson, Otisville, NY, Pro se.

RULING ON PETITIONER'S MOTION UNDER 28 U.S.C. Section 2255

BURNS, Senior District Judge.

INTRODUCTION

Neil Johnson, (hereinafter "Johnson" or "Petitioner") has filed a Motion to Vacate, Set Aside or Correct His Conviction, pursuant to 28 U.S.C. § 2255, challenging his conviction and sentencing for conspiring to possess with intent to distribute narcotics. After a thorough review of the parties' moving papers and exhibits thereto, it was determined that a hearing was unnecessary in order to decide the present Motion which is now ready for decision.

STATEMENT OF FACTS

The Court sets forth only those facts deemed necessary to an understanding of the issues raised in, and decision rendered on, this Motion. The facts are distilled from the parties' moving papers, the joint and government appendices before the Second Circuit, the pre-sentence report, the transcript of his sentencing, and the transcript of his state court guilty plea. The petitioner, Neil Johnson, was arrested on November 24, 1993, on a complaint charging him with violating 21 U.S.C. §§ 841(a)(1) and 846. On or about December 21, 1993, an indictment was returned, charging that the petitioner had conspired with one Raul Rivera to possess with intent to distribute a controlled substance, in violation of §§ 841(a)(1) and 846. The petitioner pleaded not guilty on January 5, 1994, and petitioner's trial commenced on March 21, 1994, before the Honorable Peter C. Dorsey. On March 28, 1994, a jury returned a verdict of guilty on both counts. The petitioner was sentenced to 320 months imprisonment, a $24,000 dollar fine, and eight years of supervised release upon completion of his sentence. Johnson appealed his conviction, and the Second Circuit Court of Appeals reversed and remanded for a new trial. United States v. Rivera, 61 F.3d 131 (2d Cir.1995)

On September 14, 1995, jury selection for the second trial began before Judge Dorsey. The case was then transferred to this court, which continued to conduct voir dire and complete the jury selection. The second trial began before this court on September 26, 1995, and continued until October 5, 1995.

The evidence produced at trial resulted from a heroin trafficking investigation of the defendant, initiated by the Drug Enforcement Administration ("DEA") in Hartford, Connecticut. One of the government's chief witnesses was Raul Rivera, who, after being arrested for possession of narcotics, agreed to cooperate with the government against Johnson. At the trial, Rivera testified about Johnson's narcotics operation, which included smuggling heroin from Mexico and distributing it in Connecticut. Rivera testified that he sold heroin for Johnson inside the Dutch Point Housing Project in Hartford, Connecticut. Rivera also testified about accompanying Johnson to purchase heroin in Texas, where Rivera tested the narcotics to ensure its quality. In addition to Rivera's testimony, the government also played tapes of conversations they had recorded as a result of wiretaps, and presented testimony of Special Agents of the DEA. The jury returned a verdict of guilty on both counts.

On February 27, 1996, this court sentenced the defendant to a term of 320 months imprisonment, and eight years of supervised release. The government introduced transcripts of the testimony of Raul Rivera and a Hartford Police Detective, and presented police reports of several arrests and complaints regarding narcotics trafficking at the Dutch Point Housing Project. Johnson objected to the findings of the pre-sentence report regarding the amount of heroin attributed to him and his operation, and the enhancements calculated. He based his objections on the lack of credibility of witness Raul Rivera. Johnson also challenged the consideration of his December, 1984, state conviction for conspiracy to possess narcotics with intent to sell, arguing that he had not made a knowing and intelligent waiver of his rights when he pleaded guilty in that case. The court rejected these claims and found that Johnson was responsible for the amount of heroin indicated in the pre-sentence report, but departed downward to the offense level found at the first sentencing, and sentenced Johnson to 320 months, the same sentence as in the first sentencing. Petitioner appealed this conviction and sentence and the Second Circuit affirmed. On March 11, 1997, the Supreme Court denied the petitioner's petition for writ of certiorari.

LEGAL ANALYSIS

I. Procedural Bar of Claims

On direct appeal, Johnson only challenged the jury selection process and his sentence, failing to raise the ineffective assistance of counsel claims he now brings before this court. The failure of a federal defendant to raise an issue on direct appeal will bar the defendant from raising the issue in a habeas petition for the first time absent a showing of both "`cause' for the waiver and `actual prejudice' resulting from the alleged waiver." Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)(quoting Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). See also, United States v. Canady, 126 F.3d 352, 359 (2d Cir.1997). Under the cause and prejudice standard, defendant bears the burden of showing such cause and prejudice. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Johnson has failed to meet his burden.

Defendant asserts that he has cause for his failure to raise his claims on direct appeal because he received ineffective assistance of appellate counsel. Attorney error does not satisfy the cause requirement "[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). In Strickland, the Supreme Court set forth the yardstick for measuring claims of ineffective assistance of counsel:

The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the `ample opportunity to meet the case of the prosecution' to which they are entitled. (citations omitted) ... The Sixth Amendment recognizes the right to assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.

Id. at 685, 104 S.Ct. 2052.

While recognizing that "the right to counsel is the right to effective assistance of counsel", McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the Strickland Court created a two-pronged showing a defendant must make in order to prevail on an ineffective assistance of counsel claim:

First, the defendant 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 the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Accordingly, Johnson must overcome the strong presumption that his counsel's conduct was reasonable and show that it fell below an objective standard of reasonableness under prevailing professional norms. Judicial scrutiny of counsel's performance must be highly deferential. The performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances and the reasonableness of counsel's conduct must be judged as of the time of counsel's conduct. Strickland, 466 at 688-90, 104 S.Ct. 2052.

Under the second prong of Strickland,"any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Id. at 692, 104 S.Ct. 2052. In other words, an error by counsel, even if professionally unreasonable, does not warrant setting aside a conviction, or a sentence, if the error had no effect. If the petitioner fails to satisfy one prong of the Strickland analysis, the court need not consider the other. Id. at 697, 104 S.Ct. 2052.

The Second Circuit has held that an attorney's failure to file a notice of appeal after conviction is not, without more, constitutionally ineffective assistance. The Court explained that cause "must be something external to the petitioner, something that cannot be fairly attributed to him." Marone v. United States, 10 F.3d 65, 67 (2d Cir.1993) (quoting Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640)(emphasis in original). In Marone, the Second Circuit concluded that because the defendant had not instructed his attorney to file a notice of appeal, the defendant's failure to raise by appeal the claims subsequently asserted in his Section 2255 motion could be attributed to his own conduct, and thus was not cause external to him sufficient to overcome waiver of these claims. Id. at 67.

Johnson briefly states in the introduction to his petition that his counsel was ineffective for failing to include his present claims in his direct appeal. He makes no claim that he asked his attorney to appeal the issues he now brings before the court. Because he does not allege something more than his attorney failing to raise these claims on direct appeal, under Marone, Johnson has not shown cause for his procedural fault.

Further, in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77...