Johnson v. United States
| Decision Date | 27 March 2017 |
| Docket Number | No. 16-3022,16-3022 |
| Parties | HENRY D. JOHNSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Central District of Illinois |
This cause is before the Court on Petitioner Henry D. Johnson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1). The Motion is GRANTED IN PART and DENIED IN PART. For the reasons that follow, the Court finds that Petitioner is not entitled to relief on Grounds One, Two, Three, Four, Five, Six, Seven, Nine, Ten, Eleven, and Twelve. The Government concedes that Petitioner is entitled to relief on Ground Eight, and the Court accepts that concession.
On January 20, 2005, a grand jury charged Petitioner by way of a Second Superseding Indictment with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (Count 1); three counts of using a telephone to facilitate a drug offense in violation of 21 U.S.C. § 843(b) (Counts 2, 3, 4); conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (Count 5); conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 (Count 6); conspiracy to maintain a drug-involved building in violation of 21 U.S.C. § 846 (Count 7); maintaining a drug involved building in violation of 21 U.S.C. § 856(a)(2) (Count 8); distribution of marijuana in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(D) (Count 9); and aiding and abetting the distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(B), and 18 U.S.C. § 2 (Count 10). See Crim., Second Superseding Indictment (d/e 41).
At trial, the Government presented evidence that Petitioner was a high-ranking member of the Black P-Stone Nation gang and was "responsible for a large-scale crack, cocaine, and marijuana distribution" operation in Quincy, Illinois. United States v. Johnson, 580 F. App'x 480 (7th Cir. 2014). Several of the participants in the operation testified against Petitioner at trial.
On July 7, 2005, a jury found Petitioner guilty on all ten counts. In February 2006, U.S. District Judge Jeanne Scott denied Petitioner's post-trial motions, entered judgment on the verdict on Counts 1, 2, 3, 4, 8, 9, and 10, and found that the three conspiracy counts, Counts 5, 6, and 7, merged into the judgment of conviction on Count 1. Crim., Opinion at 13 (d/e 137).
In July 2006, Judge Scott sentenced Petitioner to life imprisonment on Count 1; 48 months' imprisonment on Counts 2, 3, and 4; 240 months' imprisonment on Count 8; 60 months' imprisonment on Count 9; and 480 months' imprisonment on Count 10, all to run concurrently. Judge Scott also sentenced Petitioner to five years of supervised release on Counts 1 and 10; one year on Counts 2, 3, and 4; and 3 years on Counts 8 and 9, allto run concurrently. See Crim., Judgment (d/e 144). The Court also imposed a $700 special assessment. Id. Petitioner appealed.
The Seventh Circuit appointed attorney Kenneth J. Hogan to represent Petitioner on appeal. See Crim., Order (d/e 149). In March 2007, Hogan was allowed to withdraw and Kellie Paris-Asaka was substituted as retained counsel for Petitioner. See Seventh Circuit Case No. 06-3048, Order (d/e 15).
On October 15, 2007, Paris-Asaka filed the appellant's brief raising numerous arguments. Id., Brief (d/e 23). Oral argument was held on February 21, 2008. Id. docket notation (d/e 35, 36). On March 11, 2008, the Seventh Circuit issued an order noting that Paris-Asaka filed a brief and presented oral argument that "[t]he panel assigned to the case" found to be "not sufficiently informative." Id., Order (d/e 39). The court appointed Barry Levenstam of Jenner & Block LLP as amicus curiae to re-brief the side of Petitioner. The Seventh Circuit directed the amicus to address whatever issues he deemed appropriate and re-brief any issues previously raised in the brief by Petitioner. Id.
On June 27, 2008, Levenstam filed the amicus brief preserving the issues raised in the prior brief but raising andfocusing on three issues: (1) whether the district court committed reversible error by failing to instruct the jury that, to find Petitioner guilty of engaging in a criminal enterprise, the jurors must unanimously agree that Petitioner acted in concert with five or more other persons and occupied a position of organizer, supervisor, or manager with respect to them; (2) whether the district court committed reversible error when it admitted evidence of Petitioner's uncharged drug activities and other bad acts occurring up to seven years before the crimes charged in the indictment; and (3) whether Petitioner's sentence should be vacated and his case remanded for resentencing under Kimbrough v. United States, 128 S. Ct. 558 (2007). Seventh Circuit Case No. 06-3048, Amicus Brief at 1-2, 4 (d/e 47). Oral argument was held on January 7, 2009. Id., docket notation (d/e 60, 61). On October 14, 2009, the Seventh Circuit considered the three arguments raised by the amicus, affirmed Petitioner's conviction, but vacated his sentence and remanded for resentencing in light of Kimbrough, 552 U.S. 85. See United States v. Johnson, 584 F.3d 731 (7th Cir. 2009).
On remand, Judge Scott sentenced Petitioner to the same sentence originally given. Crim., Judgment (d/e 187). Petitioner appealed. On March 24, 2011, the Seventh Circuit again vacated Petitioner's sentence but this time remanded for a redetermination of the sentence in light of the parsimony principle of 18 U.S.C. § 3553(a). United States v. Johnson, 635 F.3d 983, 988, 990 (7th Cir. 2011) ().
By this time, Judge Scott had retired from the bench, and the case was reassigned. On October 2, 2012, following a hearing, this Court entered judgment resentencing Petitioner to 360 months' imprisonment on Counts 1 and 10; 48 months on Counts 2, 3, and 4; 240 months on Count 8; and 60 months on Count 9, to all run currently. This Court sentenced Petitioner to 5 years of supervised release on Counts 1 and 10; 1 year on Counts 2, 3, and 4; and 3 years on Counts 8 and 9, all to run concurrently. This Court also imposed a $700 special assessment. Crim., Judgment (d/e 212).
Petitioner appealed. On February 19, 2013, the United States and appellate counsel for Petitioner filed a joint motion asking the Seventh Circuit to vacate the sentence and remand to give the district court the opportunity to consider and expressly address Petitioner's argument for a reduced crack-to-powder ratio. The Seventh Circuit granted that motion, vacated Petitioner's sentence, and remanded the case for resentencing. See Seventh Circuit Case No. 12-3254, Order (d/e 16).
In August 2013, this Court sentenced Petitioner to 293 months' imprisonment on Count 1; 48 months' imprisonment on Counts 2, 3, and 4; 240 months' imprisonment on Counts 8 and 10; and 60 months' imprisonment on Count 9, all to run concurrently. The Court also sentenced Petitioner to 5 years of supervised release on Counts 1 and 10; 1 year on Counts 2, 3, and 4; and 3 years on Counts 8 and 9, all to run concurrently; and a $700 special assessment. Crim., Judgment (d/e 234). Petitioner appealed.
On appeal, appellate counsel filed an Anders brief in support of his motion to withdraw as appointed counsel. On October 21, 2014, the Seventh Circuit granted counsel's motion to withdrawand dismissed the appeal. Johnson, 580 F. App'x at 480. Petitioner did not file a petition for certiorari.
On January 19, 2016, Petitioner timely filed his § 2255 Motion by placing the Motion in the prison mailing system.2 See Rule 3(d), Rules Governing Section 2255 Motions (providing a paper filed by an inmate confined to an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing); Mot. at 12 (d/e 1) (certifying that Petitioner placed the § 2255 Motion in the prison mailing system on January 19, 2016).
In his § 2255 Motion, Petitioner raises 12 grounds for relief, all alleging ineffective assistance of counsel.
A person convicted of a federal crime may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Reliefunder § 2555 is an extraordinary remedy because a § 2255 petitioner has already had "an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Post-conviction relief under § 2255 is therefore "appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal quotation marks omitted).
To succeed on a claim of ineffective assistance, Petitioner must prove that: "(1) his attorney's performance fell below an objective standard of reasonableness; and (2) he suffered prejudice as a result." Wyatt v. United States, 574 F.3d 455, 457-58 (7th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). The first prong is known as the "performance prong," and the second is known as the "prejudice prong." See, e.g., Wyatt, 574 F.3d at 458.
Under the performance prong, the Court's scrutiny of counsel's performance is highly deferential. Rodriguez v. United States, 286 F.3d 972, 983 (7th Cir. 2002). Petitioner must overcome the "strong presumption that counsel's conduct fallswithin the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689 (). Petitioner must establish the "specific acts or omissions of ...
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