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Anthony Johnson v. United States of America

March 29, 2012

ANTHONY JOHNSON, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT



The opinion of the court was delivered by: : (Chief Judge Kane)

MEMORANDUM

Pending before the Court is Petitioner Anthony Johnson's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 100.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will deny Petitioner's motion.

I. BACKGROUND

On January 8, 2007, Petitioner was charged with several counts of violating Pennsylvania laws regarding the illegal possession of controlled substances, drug paraphernalia, and a firearm. (Doc. No. 123-2 at 3.) The Court of Common Pleas of Dauphin County, Pennsylvania arraigned Petitioner on these charges on March 23, 2007. (Id. at 5.) On April 12, 2007, Petitioner filed a motion to suppress evidence seized in connection with his arrest pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania. (Id.; Doc. No. 123 at 9.)Aside from two continuances granted after the filing of the motion to suppress, there was no further activity in Petitioner's state court proceedings until the Commonwealth made an application for an entry of nolle prosequi, which the state court granted on April 14, 2011. (Doc. No. 123-2 at 5.)

On January 16, 2008, a federal indictment was returned against Petitioner, charging that Petitioner, having been convicted of three crimes punishable by imprisonment for a term exceeding one year, knowingly possessed a Taurus, .38 Special revolver, which had been shipped and transported in interstate and foreign commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Doc. No. 1.) An arraignment hearing was held on January 17, 2008, at which Petitioner entered a plea of not guilty. (Doc. No. 10.) On January 23, 2008, Attorney Assad Omar Bucaram was appointed to represent Petitioner. (Doc. No. 14.) On April 23, 2008, Petitioner filed a motion to suppress evidence seized in connection with his arrest. (Doc. No. 23.) A hearing on this motion was held on May 28, 2008 (Doc. No. 38), and the Court denied the motion on September 17, 2008 (Doc. No. 56).

On May 28, 2008, a superseding indictment was returned against Petitioner, charging him in Count II with possession with intent to distribute, and distribution of, marijuana and cocaine, in violation of 21 U.S.C. § 841(a). (Doc. No. 33.) Petitioner entered a plea of not guilty to the charges in the superseding indictment on June 17, 2008. (Doc. No. 44.) On December 23, 2008, Petitioner pled guilty to Count I of the superseding indictment. (Doc. No.

67.) On April 8, 2009, the Court sentenced Petitioner to an imprisonment term of 180 months, a fine of $1,000, a special assessment fee of $100, and a supervised release term of four years. (Doc. No. 78.) The Court also dismissed Count II of the superseding indictment on this date. (Id.)

On April 9, 2009, the Court terminated Attorney Bucaram as Petitioner's counsel and appointed new counsel for Petitioner. (Doc. No. 79.) Petitioner filed a notice of appeal to the United States Court of Appeals for the Third Circuit on April 24, 2009. (Doc. No. 82.) The Third Circuit summarily affirmed Petitioner's conviction and sentence on January 27, 2010. (Doc. No. 89.)

On March 2, 2011, Petitioner filed a motion to vacate, modify, or correct sentence under 28 U.S.C. § 2255 (Doc. No. 92), a motion for leave to proceed in forma pauperis (Doc. No. 94), and a motion pursuant to Rule 6(b) of the Rules Governing Section 2255 Proceedings (Doc. 95). On March 4, 2011, the Court issued an Administrative Order with Notice of Limitations on Filing of Future Petitions under 28 U.S.C. § 2255 ("Administrative Order"). (Doc. No. 97.) On April 15, 2011, Petitioner filed a letter with the Court in which he suggested that he did not receive the Administrative Order. (Doc. No. 98.) In an abundance of caution, the Court reissued the Administrative Order on April 18, 2011, attaching a Section 2255 motion form to the Administrative Order. (Doc. No. 99.) On April 25, 2011, Petitioner filed a new Section 2255 motion and a notice of election. (Doc. Nos. 100, 101.) The Government filed a brief in opposition to Petitioner's motion on May 18, 2011. (Doc. No. 104.) Petitioner filed a reply brief on June 3, 2011. (Doc. No. 105.)

On June 24, 2011, an evidentiary hearing was held in order to provide Petitioner with the opportunity to develop the record on the issue of whether Attorney Bucaram provided ineffective assistance of counsel. (Doc. Nos. 109, 111.) At the hearing, Petitioner's current counsel requested that the record remain open. (Doc. No. 111.) On January 6, 2012, a second evidentiary hearing was held. (Doc. No. 121.) During this hearing, Petitioner's counsel submitted the docket sheet from Petitioner's case in the Court of Common Pleas of Dauphin County as an exhibit and requested that the Court permit Petitioner to file a supplemental brief in support of his Section 2255 motion, which the Court granted. (Id.; Doc. No. 122.) Petitioner filed his supplemental brief in support on January 20, 2012 (Doc. No. 123), and the Government filed a brief in opposition on February 2, 2012 (Doc. No. 124).

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a federal prisoner may file a motion requesting that the sentencing court vacate, set aside, or correct his sentence on the grounds 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." Section 2255, however, does not afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). "The alleged error must raise 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Furthermore, Section 2255 generally limits a federal prisoner's ability to attack the validity of his sentence to cure jurisdictional errors and errors that rose to the level of a constitutional violation. United States v. Timmreck, 441 U.S. 780, 783-84 (1979).

III. DISCUSSION

Petitioner raises four arguments in support of his Section 2255 motion. First, Petitioner argues that Attorney Bucaram provided ineffective assistance of counsel because he convinced Petitioner to enter a guilty plea to the offense of possession of a firearm by a convicted felon. (Doc. No. 100 at 4.) Second, Petitioner contends that Attorney Bucaram was ineffective because he failed to obtain a report from the Government establishing that the revolver in Petitioner's possession at the time of his arrest traveled in interstate commerce. (Id. at 5.) Third, Petitioner asserts that the Court violated his due process rights by failing to grant his motion to suppress evidence seized in connection with his arrest. (Id. at 6-7.) Petitioner also states that his appellate counsel was ineffective on this issue, but he does not elaborate on that ...


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