United States v. Johnson

• Court: U.S. District Court — Southern District of Alabama
• Writing for the Court: KATHERINE P. NELSON
• Decision Date: 13 March 2014
• Docket Number: CRIMINAL No. 05-00196-WS-N,Civil Action No. 12-00589-WS
• Citation: United States v. Johnson, Civil Action No. 12-00589-WS, CRIMINAL No. 05-00196-WS-N (S.D. Ala. Mar 13, 2014)
• Parties: UNITED STATES OF AMERICA, v. ERIC LAMONT JOHNSON, Defendant.

UNITED STATES OF AMERICA, v. ERIC LAMONT JOHNSON, Defendant.

CRIMINAL No. 05-00196-WS-N

Civil Action No. 12-00589-WS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: March 13, 2014

REPORT AND RECOMMENDATION

This action is before the court on a motion filed by the defendant, Eric Lamont Johnson, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 113). This matter has been referred to the undersigned Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration of the petitioner's § 2255 motion, the United States' response in opposition thereto (doc. 115), Johnson's reply (doc. 124), and all other pertinent portions of the record, it is the recommendation of the undersigned that the § 2255 motion be DENIED.

I. BACKGROUND

A three count indictment issued against Johnson in June 2005, charging him in Counts One and Two with possession of a firearm by a prohibited person (convicted felon) in violation of 18 U.S.C. § 922(g)(1), and in Count Three with making false and fictitious oral and written statements in connection with the attempted acquisition and acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6). (Doc. 1). On June 28, 2010, and again on July 28, 2010, Johnson appeared in Court with counsel for a competency hearing and, based upon the testimony of two examining psychologists and a review of the psychological evaluation reports in evidence, the Court held that:

Defendant is not presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.

(Doc. 61). At the pretrial conference conducted on August 9, 2010, Johnson's counsel advised the Court that defendant would enter a guilty plea and an order setting the plea was entered. (Doc. 63). Johnson executed a written plea agreement and factual resume in support of his guilty plea to Count Three of the indictment. (Docs. 64,¹ 65). On August 17, 2010, Johnson entered his guilty plea on the record in open Court. (Doc. 107-2). Johnson confirmed, on the record, under oath, that he:

[A]cquired or attempted to acquire a firearm from a Federally-licensed firearm dealer as charged; that in so doing, that [he] knowingly made a false or fictitious statement orally or in writing intended to deceive such dealer; and that the subject matter of the false statement was material to the lawfulness of the sale.

(Doc. 107-2 at 15-16). He was sentenced on November 15, 2010, to 60 months in prison. (Doc. 77). A direct appeal was concluded with the filing of a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and an "independent review of the entire record" by the Eleventh Circuit, which revealed "no arguable issues of merit" and resulted in an affirmance of Johnson's conviction and sentence on August 17, 2011.² (Doc. 111).

On September 6, 2012, Johnson filed the present § 2255 motion asserting, in sum, ineffective assistance of counsel predicated on the following contentions:

• He "expressed to counsel" that he did not remember the alleged attempt to purchase a firearm and "counsel failed to seek out a handwriting expert to examine the signature at issue in this matter"³;

• Counsel informed Johnson that "he would spend the rest of his life in prison if he did not enter a plea of guilty"; and

• Counsel abandoned Johnson "at a critical stage by refusing to sign the plea agreement because the agreement was unconstitutional."

(Doc. 124 at 2-3).⁴

The United States argues, in sum, that Johnson's motion is due to be summarily denied because he "alleges ineffective assistance of counsel at the guilty plea stage without the requisite showing of prejudice." (Doc. 115 at 3). The United States further argues that no evidentiary hearing is necessary because Johnson's claims "are affirmatively contradicted by the record." (Id.).

In his reply, Johnson pursues only one contention.⁵ He argues that the attached opinion of Beth Chrisman, identified as a Forensic Document Examiner,⁶ "establishes a reasonableprobability that but for counsel's errors the result of the proceeding would have been different and had counsel conducted an adequate investigation or made adequate inquiry - seeking out a handwriting expert - he would have insisted on going to trial." (Doc. 124 at 6, citing Hill v. Lockhart, 474 U.S. 52, 59 (1985). This issue has, however, for the reasons stated below, been waived by Johnson's voluntary and intelligent guilty plea.

Johnson did not request, and there is no need for, an evidentiary hearing because his claims can be resolved based on the existing record. Schultz v. Wainwright, 701 F.2d 900, 901 (11^th Cir. 1983)(" An evidentiary hearing is not required where, as here, the district court can determine the merits of the ineffectiveness claim based on the existing record."); see also Aron v. United States, 291 F.3d 708, 715 (11^th Cir. 2002)("[D]istrict court is not required to hold an evidentiary hearing where the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently frivolous."); United States v. Mobley, 2013 WL 4166553, *22 (S.D. Ala., August 15, 2013)("There is no need for an evidentiary hearing [because] [o]n the existing record, Mobely has not presented non-conclusory facts that, if true, would entitle her to relief."). See also, San Martin v. McNeil, 633 F.3d 1257, 1271 (11^th Cir. 2011) ("'An evidentiary hearing may be necessary where the material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing when his claims are merely conclusory allegations unsupported by specifics.'"), quoting Pugh v. Smith, 465 F.3d 1295, 1300 (11^th Cir. 2006).

II. STATEMENT OF THE LAW

A. Habeas Standard.

The limited scope of habeas relief is well established, as this Court has recognized:

Collateral relief is an extraordinary remedy which "may not do service for a [] [direct] appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11^th Cir. 2004) ("Courts have long and consistently affirmed that a collateralchallenge, such as a § 2255 motion, may not be a surrogate for a direct appeal."). A defendant who has waived or exhausted his right to appeal is presumed to stand "fairly and finally convicted." Frady, 456 U.S. at 164. Unless a claim alleges a lack of jurisdiction or constitutional error, the scope of the collateral attack has remained extremely limited. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Consequently, '[i]f issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack. . . . A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns." Moore v. United States, 598 F.2d 439, 441 (5^th Cir. 1979).

United States v. Evans, 2008 WL 3200694 at *3 (S.D. Ala. 2008).

B. Strickland v. Washington Standard.

A two-fold analysis must be applied to claims of ineffective assistance of counsel, as set forth by the Supreme Court and the Eleventh Circuit:

To succeed on a claim of ineffective assistance, a habeas petitioner must satisfy both prongs of the test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The performance prong requires a petitioner to establish that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that he failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 68789, 104 S.Ct. at 2064-65. The prejudice prong requires a petitioner to demonstrate that seriously deficient performance of his attorney prejudiced the defense. Id. at 687, 104 S.Ct. at 2064.

Unless a petitioner satisfies the showings required on both prongs, relief is due to be denied. Id. As a result, once a court decides that one of the requisite showings has not been made it need not decide whether the other one has been. Id. at 697, 104 S.Ct. 2069 (A court need not "address both components of the inquiry if the [petitioner] makes an insufficient showing on one."); Duren v. Hopper, 161 F.3d 655, 660 (11^th Cir. 1998) ("if a defendant cannot satisfy the prejudice prong, the court need not address the performance prong"). . . .

To establish prejudice, a petitioner must show "there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. [P]etitioners must affirmatively prove prejudice because '[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. [T]hat the errors had some conceivable effect of the outcome of the proceeding' is insufficient to showprejudice." Gilreath v. Head, 234 F.3d 547, 551 (11^th Cir. 2000) (alteration in original) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067).

United States v. Butcher, 368 F.3d 1290, 1293-94 (11^th Cir. 2004). In making the performance determination, conduct must be evaluated from the attorney's perspective at the time in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689; see also Payne v. United States, 566 F.3d 1276, 1277 (11^th Cir. 2009)(" a court must avoid 'the distorting effects of hindsight' and must 'evaluate the conduct from counsel's perspective at the time'."). ."). In guilty plea cases, the prejudice showing requires a defendant to demonstrate that, but for alleged ineffective assistance of counsel, the defendant would not have pleaded guilty. Hill v....