United States v. Johnson

• Decision Date: 11 July 2011
• Docket Number: Cr. No. 06-20198-JDB,Cv. No. 08-2216-STA-tmp
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MELVIN JOHNSON, Defendant.
• Court: U.S. District Court — Western District of Tennessee

UNITED STATES OF AMERICA, Plaintiff, v. MELVIN JOHNSON, Defendant.

Cv. No. 08-2216-STA-tmp

Cr. No. 06-20198-JDB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

ORDERED: July 11, 2011

ORDER CORRECTING THE DOCKET

ORDER DENYING MOTION FOR ORDER GRANTING REQUESTED RELIEF

ORDER DENYING MOTION TO STRIKE

ORDER DENYING MOTION FOR A DEFAULT JUDGMENT

ORDER GRANTING MOTION FOR A STATUS REPORT

ORDER GRANTING MOTION FOR CLARIFICATION OF THE RECORD

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

On April 3, 2008, Defendant Melvin Johnson, Bureau of Prisons inmate registration number 21048-076, an inmate at the Federal Correctional Institution in Memphis, Tennessee, filed a pro se motion pursuant to 28 U.S.C. § 2255. (ECF No. 1.)¹ The Court issued an order on November 6, 2008 directing the Government to respond to the motion. (ECF No. 3.) On December 18, 2008, the Court granted the Government's motion for an extension of time, until January 31, 2009, to file its response. (ECF No. 5.) The Governmentdid not file a timely response and did not request a further extension of time. On February 26, 2009, Defendant filed a motion asking the Court to grant his § 2255 motion because of the Government's default. (ECF No. 6.) On March 2, 2009 and March 5, 2009, the Government filed motions seeking a further extension of time, until March 6, 2009 (ECF Nos. 7 & 9), which the Court granted on March 6, 2009 (ECF No. 10). The Government filed its Answer on March 6, 2009, which was docketed as a response to Defendant's February 26, 2009 motion and which was, inexplicably, titled Amended Response to the Defendant's Motion for Relief Pursuant to 28 U.S.C. § 2255. (ECF No. 12.) The Answer was redocketed, without the attachments, on March 9, 2009. (ECF No. 14.) On April 1, 2009, Defendant filed Petitioner's "Traverse" Response to Government's Response to Motion to Vacate/Correct Sentence Under 28 USC § 2255 (ECF No. 15), which was incorrectly docketed as a reply in further support of the motion filed on February 26, 2009. The Clerk is directed to correct the docket to reflect that the document Defendant filed on April 1, 2009 is a reply to the Government's Answer.

Defendant's February 26, 2009 motion to grant relief (ECF No. 6) seeks entry of default and a default judgment. On December 14, 2010, Johnson filed Plaintiff's [sic] Motion to Strike and Motion for Default Judgment Pursuant to the Fed.R.Civ.P. 12(f) & Rule 55(b)(2), which seeks to strike the Government's Answer and toenter judgment by default. (ECF No. 17.) The Court implicitly denied the February 26, 2009 motion when it granted the Government's late-filed motion for an extension of time on March 6, 2009. Moreover, because Fed. R. Civ. P. 55(a) "has no application in habeas corpus cases," district judges cannot enter default judgments in habeas cases without consideration of the merits of a prisoner's claims. Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970). Defendant's motions to grant the requested relief, to strike, and for a default judgment, are DENIED.

On April 14, 2011, Defendant filed a motion seeking a status report. On June 16, 2011, Defendant filed a Motion for Clarification of the Record (ECF No. 20) that inquires about the status of the case. For good cause shown, those motions are GRANTED. The status of the case is set forth herein.

On May 23, 2006, a federal grand jury returned a single-count indictment charging Johnson, a convicted felon, with possession of ammunition in or affecting interstate commerce on or about February 8, 2006, in violation of 18 U.S.C. § 922(g). (Indictment, United States v. Johnson, No. 06-20198-JDB (W.D. Tenn.), ECF No. 1.) The factual basis for this charge is set forth in the presentence report:

5. The following information was gathered from a review of materials contained within the files of the United States Attorney, including offense reports prepared by the [Memphis Police Department ("MPD")].

6. On February 8, 2006, MPD officers responded to the call of a prowler at 3273 Walnut Grove, a duplex. The prowler call was made by Marcus Overton, a resident of one side of the duplex. Overton advised the officers that he arrived home and observed Melvin Johnson coming out of the adjacent duplex, which belonged to his (Overton's) cousin, Torey Henry. When the officers arrived, they observed the defendant standing near the side of the duplex. The defendant was detained and searched for weapons, and he was found in possession of 18 rounds of .380 caliber ammunition and three cell phones. Henry arrived on the scene and identified the defendant as his uncle. Henry also confirmed that the cellular telephones belonged to him.

7. Subsequent to arrest, and while in custody, the defendant wrote a letter to his sister regarding her grandson, Marcus Overton, the person who had first telephoned the police to report the defendant as a prowler. The letter reads in part, "I am facing the rest of my life in prison. Thanks to your grandson Marcus (Overton). Well, I need for you to brace yourself. Talk to Elaine so the both of you can talk to Mark. That's if he wants to keep his private life private. I don't want you or Elaine to hate me for what's going to happen if he comes to court. Federal court is not a place where you can try and hide anything. I did not want this to go this far. But Mark brought this upon his self. My Lawyer and investigators has his Drivers License # number . . . , D.O.B. . . . and Social Security # . . . and they are digging up everything they can to stop him from coming to court, they are going to bring up the reason he left the Military and why he has moved from job to job, from police dept. to police dept. I know how you feel about your grandson, but this is my life he's playing with. And these people are trying to give me the remainder of my life in prison for something he planted for me to pickup off of that car when I got over there to buy it. Those cell phones and bullets where [sic] on top of that car when I got over there. My trial starts the second week in June. I know this is going to cause ill feeling between you, Elaine and Me. I am truly sorry."

Victim Impact

8. The defendant burglarized victim Torey Henry's home and attempted to leave with three cellulartelephones. The property temporarily taken from Mr. Henry's home was returned to him.

(Presentence Report, ¶¶ 5-8.)

Johnson filed a motion to suppress on May 14, 2007 (Mot. to Suppress with Incorporated Mem. of Law, id., ECF No. 26), and the Government filed a response on June 4, 2007 (Response of the United States to Def.'s Mot. to Suppress, id., ECF No. 32). On June 26, 2007, defense counsel filed a motion to withdraw the suppression motion and to set a date for a change of plea. (Mot. to Withdraw Mot. to Suppress and to Set Change of Plea Date, id., ECF No. 40.) United States District Judge J. Daniel Breen issued an order granting Defendant's motion on June 26, 2007. (Order Granting Def.'s Mot. to Withdraw Mot. to Suppress and to Set a Change of Plea Date, id., ECF No. 41.)

On July 12, 2007, pursuant to a written plea agreement (Plea Agreement, id., ECF No. 43), Johnson appeared before Judge Breen to enter a guilty plea to the sole count of the indictment. The Plea Agreement, which was made pursuant to Fed. R. Crim. P. 11(c)(1)(C), provided, in pertinent part, as follows:

The United States and MELVIN JOHNSON agree that a sentence of 180 months imprisonment is an appropriate and reasonable sentence in this case, in light of MELVIN JOHNSON's withdrawal of his motion to suppress and his waiver of his right to appeal. In addition, it is the position of the United States that an enhancement for obstruction of justice is not appropriate in this case based on the facts currently known to the United States absent additional investigation. In addition, in light of the defendant's guilty plea, the United States will not pursue additional investigation of these potentialcharges, or enhancements, based on obstruction of justice related to the instant case based on actions occurring prior to July 11, 2007.

Given the facts in possession of the United States at the time of the writing of this agreement, the United States does not oppose to [sic] the defendant receiving the full three points for acceptance of responsibility pursuant to U.S.S.G. Section 3E1.1. The defendant understands that if the United States receives information between the signing of this agreement and the time of sentencing that the defendant has previously engaged in, or if he engages in the future, in conduct inconsistent with the acceptance of responsibility, including, but not limited to, participation of [sic] any additional criminal activities between now and the time of sentencing, this position could change. Further, the defendant understands that whether or not acceptance of responsibility credit pursuant to Section 3E1.1 is granted is a matter to be determined by the district court. Failure of the district court to grant acceptance of responsibility credit is not a basis for MELVIN JOHNSON to withdraw his guilty plea.

Defendant understands that Title 18, United States Code Section 3742 gives him the right to appeal the sentence imposed by the Court. Acknowledging this, defendant knowingly and voluntarily waives his right to appeal any sentence imposed by the Court and the manner in which the sentence is determined so long as the sentence [sic] 180 months. This waiver is made in exchange for the concessions made by the United States in this Plea Agreement. The waiver in this paragraph does not apply to claims relating to prosecutorial misconduct and ineffective assistance of counsel.

. . . .

MELVIN JOHNSON agrees that this plea agreement constitutes the entire agreement between himself and the United States and that no threats have been made to induce him to plead guilty. By signing this

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