Johnson v. United States
| Decision Date | 06 January 2022 |
| Docket Number | 1:20-cv-02443-SEB-DML |
| Court | U.S. District Court — Southern District of Indiana |
| Parties | ZAKEE JOHNSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C § 2255, DENYING MOTION FOR ABEYANCE AND APPOINTMENT OF COUNSEL, AND DENYING CERTIFICATE OF APPEALABILITY
For the reasons explained in this Order, Zakee Johnson's motion for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997)).
In February 2017, Mr. Johnson was charged with four counts of interference with commerce by robbery ("Hobbs Act robbery") in violation of 18 U.S.C. § 1951, and four counts of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). United States v. Johnson, 1:17-cr-00027-SEB-MJD-1 ("Crim. Dkt."), dkt. 18. In June 2018, a grand jury returned a superseding indictment that omitted two counts of brandishing a firearm during a crime of violence. Crim. Dkt. 60.
The next month, Mr. Johnson executed a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Crim. Dkt. 81. He agreed to plead guilty to all four counts of Hobbs Act robbery and one count of brandishing a firearm during a crime of violence in exchange for dismissal of the second count of brandishing a firearm during a crime of violence. Id. at ¶¶ 1-2. The parties agreed to a sentence between 240 and 360 months' imprisonment. Id. at ¶ 10.
The plea agreement contained the following stipulated facts: (1) Mr. Johnson entered a tobacco store, brandished a firearm, demanded money from the cash register, removed money from the cash register, threatened to shoot the employee if he called the police, and destroyed the security system in the tobacco store; (2) Mr. Johnson entered a fast food restaurant minutes after robbing the tobacco store, asked the employees to open the cash registers, brandished a firearm, grabbed cash from the cash registers, and fled the restaurant; (3) three days later, Mr. Johnson entered another fast food restaurant, brandished a firearm, demanded money from the cash register, removed currency from the cash register, demanded money from the safe, and left the restaurant; and (4) shortly after robbing the fast food restaurant, Mr. Johnson entered a liquor store, brandished a firearm, pointed it at two different employees while demanding money, took money handed to him by the employees, and left the liquor store. Id. at ¶ 12. For each robbery, Mr. Johnson admitted that "[a]s a result of his actions, items moving in interstate commerce were actually or potentially delayed, obstructed, or affected." Id.
Mr. Johnson also waived certain rights as part of his plea agreement. Specifically, he waived his "right to appeal the conviction and sentence imposed in this case on any ground" and his right to "contest, or seek to modify, [his] conviction or sentence or the manner in which either was determined in any later legal proceeding." Id. at ¶¶ 18-19. The waiver pertaining to later legal challenges contained an exception for claims of ineffective assistance of counsel. Id. at ¶ 19.
The Court conducted a change of plea hearing on July 9, 2018. Crim. Dkt. 84 (minute entry); Crim. Dkt. 114 (transcript). During this hearing, Mr. Johnson stated that he reviewed the superseding indictment with counsel and "knew exactly" what he was charged with. Crim. Dkt. 114 at 4-6. He also declined an opportunity to ask the Court about the essential elements of the charged offenses or the statutory penalties applicable to them. Id. at 6-7. After the Court reviewed the appeal and later legal challenge waivers, Mr. Johnson stated he understood those provisions and indicated that he had no questions concerning those provisions. Id. at 9-10.
When the Court reviewed the factual basis for the guilty plea, Mr. Johnson admitted the truth of those facts, expressed no disagreement with them, and agreed that he committed the acts as described. Id. at 20-21. The Court thereafter found that Mr. Johnson was "aware of the nature of the charges and the consequences of his plea" and "that his plea of guilty is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of each of [the] five offenses." Id. at 22. It accepted Mr. Johnson's guilty plea and advised him as to the next steps. Id. at 22-23.
A presentence investigation report ("PSR") was prepared, and the Court conducted a sentencing hearing in November 2018. Crim. Dkt. 88 (presentence investigation report); Crim. Dkt. 92 (minute entry); Crim. Dkt. 112 (transcript). There were no objections to the PSR, and the Court concluded that the total offense level was 27 and Mr. Johnson's criminal history category was I. Crim. Dkt. 114 at 10. The resulting guidelines sentencing range was 70 to 84 months' imprisonment for the Hobbs Act robbery counts and a consecutive 84-month term of imprisonment for the count of brandishing a firearm in furtherance of a crime of violence. Id. at 11. The Court reviewed the sentencing factors listed in 18 U.S.C.§ 3553(a) and imposed an aggregate term of 264 months' imprisonment and five years' supervised release. Id. at 32-38. After pronouncing the sentence, the Court notified Mr. Johnson of the timeline for filing a notice of appeal and advised him to speak with counsel about it. Id. at 38.
Judgment was entered on November 27, 2018, Crim. Dkt. 96, and Mr. Johnson filed a notice of appeal on December 7, 2018, Crim. Dkt. 99. The Seventh Circuit granted Mr. Johnson's motion to voluntarily dismiss the appeal in March 2019. Crim. Dkt. 117. He filed a second notice of appeal in December 2018, but that appeal was also dismissed on Mr. Johnson's motion. Crim. Dkt. 105; Crim. Dkt. 110. Mr. Johnson filed this motion for relief under 28 U.S.C. § 2255 in September 2020. Dkt. 1; Crim. Dkt. 125.
Mr. Johnson presents two claims of ineffective assistance of counsel in his § 2255 motion: (1) counsel failed to perfect an appeal; and (2) counsel failed argue that the Hobbs Act robbery counts were not crimes of violence. See dkt. 1. In his reply, he also contends that the Court committed several errors during the change of plea colloquy and that there was no interstate nexus for the Hobbs Act robbery counts. See dkt. 9 at 6-9.
The Seventh Circuit has "repeatedly recognized that district courts are entitled to treat an argument raised for the first time in a reply brief as waived." O'Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020) (collecting cases); see also United States v. Desotell, 929 F.3d 821, 826 (7th Cir. 2019) (). Mr. Johnson waited until his reply brief to present his challenges to (1) the knowledge element of the count of brandishing a firearm during a crime of violence; (2) the sufficiency of the plea colloquy; (3) the Court's consideration of the sentencing factors listed in 18 U.S.C. § 3553(a); and (4) the interstate nexus of the Hobbs Act robbery counts. He provides no explanation for this delay. Because these arguments were not raised until his reply, they are waived, and the Court will not address them on the merits.
The Court will, however, address the merits of the ineffective assistance of counsel claims presented in Mr. Johnson's § 2255 motion. A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Resnick v. United States, 7 F.4th 611, 619 (7th Cir. 2021). If a petitioner cannot establish one of the Strickland prongs, the Court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy the first prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider whether in light of all of the circumstances, counsel's performance was outside the wide range of professionally competent assistance. Id. On the prejudice prong, a petitioner "must show that but for counsel's errors, there is a reasonable probability that the result would have been different." Perrone v. United States, 889 F.3d 898, 908 (7th Cir. 2018) (cleaned up). 1. Perfect an Appeal
Mr Johnson first alleges that counsel provided ineffective...
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