Johnson v. USA - 2255, No. 8:2012cv03425 - Document 2 (D. Md. 2013)
Court Description: MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 7/30/2013. (kns, Deputy Clerk)(c/m 7/31/13)
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_ALED _lOGGED _ENTERED _RECEIVED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * LAMONT .JOHNSON, pro se * * * * * Petitioner, v. BY Civil No.: P.JM 12-3425 Crim. No.: P.lM 09-0588 * * * UNITED STATES OF AMERICA Respondent. MEMORANDUM OPINION Lamont Johnson, pro se, has filed a Motion to Vacate his sentence under 28 U.S.c. S 2255 [Paper No. 43]. The Motion is DENIED. I. Johnson was indicted for being a felon in possession of a firearm in violation of 18 U.S.c. S 922(g). He pled guilty through a "straight-up" plea, i.e., without the benefit of a plea agreement. In a joint letter to this Court, however, the parties agreed to the following statement of facts: On July 30, 2009, Prince George's County Police (PGPD) stopped Lamont Luther JOHNSON while driving in Upper Marlboro, Maryland for a broken right brake light. When the officer approached the vehicle he observed the operator reach under the driver seat, exit the vehicle and move towards the passenger side of the vehicle. The operator was ordered back to the driver side of the vehicle, at which time JOHNSON fled on foot. Law enforcement recovered a .38 caliber revolver bearing an obliterated serial number loaded with six (6) rounds of ammunition from under the driver's seat. Officers also recovered a folder containing JOHNSON's learner's permit, social security card and birth certificate from the passenger scat. The officer looked at the picture on the learner's permit and identified that individual as the same who had just fled the scene ... Johnson enhancement was sentenced to 183 months in prison, after receiving a sentencing under the Armed Career Criminal Act, which increased his criminal history category to a level V. -1- Johnson appealed affirmed his conviction Federal Public (AFPD), who represented for certiorari succeeding appeal. Johnson November 19,2012, his plea, sentencing, and The AFPD advised Johnson that need to withdraw Court, but that the odds of Johnson that she would consider from Johnson's case ifhe was told that he would need to tile the petition 29, 2012, and was asked to contact never responded an Assistant decision. and would therefore Johnson 16,2011, which during were very slim. The APFD further advised opted to pursue a eert petition. Circuit, Johnson with the United States Supreme any such appeal to be frivolous, later than February for the Fourth 1, 2011. On December him by mail of the Fourth Circuit's he could file a petition such a petition States Court of Appeals and sentence on December Defender appeal, informed to the United to the AFPD, the AFPD regarding nor did he tile a cert petition by no his intention to on his own. On tiled the present Motion. II. Johnson argues that his counsel rendered failed to pursue a motion to suppress, regarding constitutionally encouraged and involuntarily, assistance when she him to plead guilty, and failed to consult him pursuit of a cert petition to the Supreme Court. into his guilty plea unintelligently ineffective I Johnson further asserts that he entered 2 and requests that the plea be set aside. A. Johnson first contends that his lawyer rendered failed to tile a motion to suppress the revolver inefTective assistance found under the driver's of counsel when she seat of the car Johnson had been driving. I As a pro se petitioner, Johnson's Motion must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Therefore, his somewhat imprecise claims have been recast in more meaningful form. 2 Johnson did not raise this claim in his Motion, but asserts in his Reply that it was raised implicitly. The Court sees no need to challenge the propriety of raising a claim in this fashion and will address the claim in any event. -2- To demonstrate ineffective assistancc of counsel, a pctitioner needs to make two showings: first, he must show that his counsel's representation fell bclow an objective standard of reasonableness; and, second, he must show that counsel's deficicncy was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong, judicial scrutiny of counsel's performancc is "highly defcrcntial," and the petitioncr must overcome thc presumption that counsel's decision-making was thc result of sound trial strategy. See id. at 689. Under the second prong-the prong-the prcjudice pctitioncr must show that there was a reasonable probability of a ditferent rcsult had counsel not committed the alleged error. ld. at 694. Johnson has given no reason for thc Court to concludc that counsel's failure to file a motion to suppress constituted delicient performance, nor has he supplied any reason for the Court to bclieve that the evidence was unlawfully scizcd from the car. For the same reasons, Johnson does not satisfy the prejudice prong. To find probable cause, the totality of the circumstances need only be sufficient to warrant a reasonable person to believe that contraband or evidence of a crime would be found in Johnson's car. See Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause does not require that the officer's belief be more likely true than false. United States v. Jones, 31 FJd 1304, 1313 (4th Cir. 1994). Here, after his vehicle was stopped for a broken brake light, Johnson oddly and inexplicably reached under his passcngcr seat, cxitcd thc vehicle, and rushed to the passenger side door. In the context of a vchicular police stop, thesc actions arc fairly deemed unusual and suspicious. See Porte,:field v. Loll, 156 F.3d 563, 569 (4th Cir. 1998) ("[W]hen it is considered in the light of all the surrounding circumstances, even 'seemingly innocent activity' may provide a -3- ---------------------------------------- basis for finding probable cause.") (citing Taylor v. Waters, 81 FJd 429, 434 (4th Cir. 1996)). When Johnson was told to return to the driver's side of the vehicle, he bolted from the scene, committing what can only be termed the "consummate act of evasion." United States v. Smith, 396 FJd 579, 584 (4th Cir. 2005) (headlong flight is the "consummate act of evasion") (internal quotation and citation omitted). Consequently, the officers who arrested Johnson had probable cause to search the car. Accordingly, a motion to suppress by counsel would not have been meritorious. In consequence, Johnson's claim of ineffective assistance of counsel for failure to file a motion to suppress lacks merit. B. Johnson also claims ineffective assistance of counsel on the grounds that counsel encouraged him to plead guilty. Given that (a) Johnson lacked a meritorious defense, (b) he was able to have a say in the construction of the statement of facts used against him because of his decision to plead guilty, and (c) his ultimate sentence was on the low end of the sentencing guidelines, the Court cannot conclude that counscl's decision to advise Johnson to plead guilty fell below an objective standard of reasonableness. Even assuming, arguendo, that counsel's performance was deficient, Johnson cannot satisfy the prejudice prong of Strickland which requires, in the context of a guilty plea, demonstration of "a reasonable probability that, but for counsel's errors, [Johnson] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Johnson's after-the-fact declarations are of no moment. He has failed to show what he is required to show-that proceeding to trial would have been objectively reasonable in light of all the facts. See United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012) ("The challenger's subjective preferences ... arc not dispositive; what matters is whether proceeding to trial would -4- have been objectively reasonable in light of all the facts."). Johnson has pointed to no plausible defense he might have asserted against the ponderous facts of the case, nor does one readily appear to the Court. See id. (decision to go to trial would not be rational where evidence against the defendant was "overwhelming"); see also Meyer v. Branker, 506 F.3d 358, 369 (4th CiT. 2007) (prejudice prong is "dependent on the likely outcome of a trial had the defendant not pleaded guilty"). Since Johnson was not prejudiced by entering a guilty plea, his claim of ineffective counsel fails accordingly. c. Johnson next claims he pled guilty unintelligently and involuntarily. S 2255 motion contesting a guilty plea, the Court must first determine "whether the petitioner's allegations, In determining whether an evidentiary hearing is necessary to resolve a when viewed against the record of the Rule 11 plea hearing, are so palpably incredible, so patently frivolous or false as to warrant summary dismissal." Uniled Stales v. While, 366 F.3d 291,296 in a S (4th CiT. 2004) (quoting Blackledge v. Allison, 431 U.S. 63, 76 (1977)). "[A)llegations 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always "palpably incredible" and "patently frivolous or false," Uniled Slales v. Lemasfer, 403 F.3d 216, 221 (4th CiT. 2005), and, absent extraordinary circumstances, any S 2255 motion that ncccssarily relies on such allegations should be- dismissed. ld at 221-22. During his Rule 11 colloquy, Johnson confirmed the accuracy of an agreed statement of facts; i.e., facts set forth in a letter to this Court signed by Johnson and the Government. Moreover, Johnson told the Court several times during the colloquy that he was pleading guilty knowingly and voluntarily. Any contention now that Johnson's car taillight was not broken prior -5- to the stop must be disregarded since it directly contradicts the facts that Johnson agreed to both in writing and orally. Moreover, Johnson stated in his colloquy, inter alia, that he was satisfied with counsel's services, that he understood that he could potentially be sentenced to life in prison, and that he understood everything regarding the sentencing process. To the extent that he now argues there was an insufficient factual basis for the Court to have considered his plea intelligent and voluntary, he is attempting to re-write history. His decision to enter a guilty plea was intelligent and voluntary. D. Finally, Johnson claims that counsel was ineffective for failing to consult him regarding a possible appeal to the Supreme Court. To be sure, counscl has a constitutional duty to consult with a defendant regarding the possibility of an appeal when there is reason to think either (a) that a rational defendant would want to appeal (typically because there are non-frivolous grounds for appeal), or (b) that a defendant has reasonably demonstrated to counsel that he is interested in appealing. Roe v. Flores-Or/ega, 528 U.S., 470, 480 (2000). The Supreme Court has defined consulting in this context to mean "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." ld. at 478. Counsel fairly complied with these obligations. Counsel correctly informed Johnson that the Supreme Court was extremely unlikely to grant certiorari in his case-less criminal eert petitions are granted-and Johnson, in the AFrD's than I % of opinion, had no non-frivolous issues. In short, there were essentially no advantages to tiling, only disadvantages. I3ut more imp0l1antly, counsel made a reasonable effort to discover Johnson's wishes regarding appeal -6- - - ---------------------, when she requested that he contact her as soon as possible to discuss whether he wanted to file a cert petition. Her letter of December 16, 2011 to Johnson instructed him that he had until February 29, 2012 to file a petition of certiorari with the Supreme Court. Counsel made a reasonable effort to consult with him prior to that date about the possibility of appeal, but he never responded to her inquiry. She complied with her professional obligations vis-it-vis a possible appeal to the Supreme Court. Johnson has only himself to blame for an appeal not being taken. In any event, Johnson cannot establish prejudice. To establish prejudice resulting from the failure to consult regarding the possibility of an appeal, Johnson would need to show that there were non-frivolous issues for appeal or that he had communicated an "unwavering and ongoing" interest in appealing that would not have been overborne by counsel's advice. See Bostick v. Stevenson, 589 F.3d 160, 168 (4th Cir. 2009). But again the cupboard is bare. Johnson has not set forth any non-frivolous grounds that could have been the basis of a eert petition to the Supreme Court. Nor has he demonstrated that he had an "unwavering and ongoing" interest in pursuing an appeal, certainly not one so strong as to suggest that he would have appealed notwithstanding counsel's advice. Indeed, Johnson docs not elaim that he ever told counsel of his intention to lile a eert petition to the Supreme Court, much less demonstrated an "unwavering and ongoing" interest in doing so. He specifically failed to contact counsel after being asked to inform her of his intention regarding a possible appeal. Then, after being informed of the need to act by a date certain, he failed to initiate the appeals process himself. -7- In sum, counsel fairly consulted or attempted to consult with Johnson as to the possibility of an appeal, and, in any event, he cannot show he was in any way prejudiced. There was no ineffective assistance in this regard. III. For the foregoing reasons, Johnson's Motion to Vacate his sentence under 28 U.S.C. S 2255 (Paper No. 43) is DENIED. A separate Order will ISSUE.3 /s/ ER .I. MESSITTE TES DISTRICT .JUDGE 11 00 .Iuly _' 2013 3 Rule II(a) of the Rules Governing ~ 2255 Cases provides that the district COlll1 "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.c. ~ 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong, and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-E1 l'. Cockrell, 537 U.S. 322, 336-38 (2003); Slack l'. McDal/iel, 529 U.S. 473, 484 (2000); Rose l'. Lee, 252 F.3d 676, 683-84 (4th Cir. 200 t). The Court has considered the record and finds that Johnson has not made the requisite showing because his claims arc wholly without merit, falling well short of the "reasonable jurists" standard. Accordingly. the Court will not issue a certificate of appealability, and any such request is DENIED. -8-
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