United States District Court, W.D. Pennsylvania
ALAN N. BLOCH, District Judge.
Petitioner Michael R. Johnson, on September 3, 2013, filed a pro se Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. No. 755 at CR 00-136 and Doc. No. 75 at CR 00-146) and memorandum of facts and law in support thereof (Doc. No. 756 at CR 00-136 and Doc. No. 76 at CR 00-146). Upon consideration of this motion, and upon further consideration of the Government's response thereto (Doc. No. 759 at CR 00-136 and Doc. No. 79 at CR 00-146), filed on November 6, 2013, the Court denies Petitioner's petition for the reasons set forth below.
On September 21, 2000, Petitioner pled guilty to one count of conspiracy to distribute and possess with intent to distribute in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. § 846, and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), at Criminal No. 00-136, and one count of possession with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii), at Criminal No. 00-146. On November 30, 2000, this Court sentenced Petitioner to 188 months' imprisonment at each count, to be served concurrently, to be followed by 5 years of supervised release at Count One and 3 years of supervised release at Count 2 at Criminal No. 00-136, to be served concurrently, and 5 years of supervised release at Count One at Criminal No. 00-146, to be served concurrently with the terms imposed at Criminal No. 00-136. However, on November 7, 2002, the Court reduced Petitioner's sentence of imprisonment to 72 months at each count in both cases, to be served concurrently. His term of supervised release remained unchanged.
Petitioner was released to supervision on September 30, 2005, and his supervision was transferred to the District of New Mexico on July 5, 2007. On July 14, 2007, Petitioner was arrested on a charge of driving under the influence of alcohol in New Mexico. On September 13, 2007, the Court approved a modification of Petitioner's supervision conditions to include 120 days of community confinement, which was successfully completed.
On June 20, 2008, Petitioner's probation officer filed another Petition on Supervised Release, alleging that Petitioner violated the conditions of his supervision by violating the condition that provides that he shall not commit another federal, state, or local crime, by committing the New Mexico state offenses of violation of a protection order, aggravated stalking, assault on a household member, and disorderly conduct, and by committing several technical violations. On October 23, 2008, the Court found that Petitioner violated his conditions of release and sentenced him to a term of imprisonment of 8 months at Count One at Criminal No. 00-136, one day at Count Two at Criminal No. 00-136, and one day at Count One at Criminal No. 00-146, all to be served concurrently with one another. The Court also placed Petitioner on supervised release for a term of 52 months at Count One and 35 months at Count Two at Criminal No. 00-136, and 52 months at Count One at Criminal No. 00-146, all to be served concurrently with one another.
Petitioner was again released to supervision on February 11, 2009. On June 16, 2010, his probation officer filed another Petition on Supervised Release alleging that Petitioner had violated the conditions of his release by traveling to Missouri, Oklahoma, and New Mexico without permission and in the company of two other convicted felons and by failing to report contact he had with law enforcement in Missouri and Oklahoma on May 3, 2010. The next day, June 17, 2010, the Court approved a modification of Petitioner's conditions to include 6 months of home detention with electronic monitoring, which was successfully completed on November 10, 2010.
On January 26, 2011, the probation officer filed a new Petition on Supervised Release alleging that Petitioner had violated the terms of his release and requesting that the Court order a bench warrant be issued for his arrest and that the warrant be lodged as a detainer at El Paso County Jail, El Paso, Texas. Specifically, the probation officer advised that Petitioner violated the condition of his supervised release that provides that he shall not commit another federal, state, or local crime, by committing the federal offense of conspiracy to possess with intent to distribute 400 pounds of marijuana, in violation of 21 U.S.C. § 846. She also advised the Court that Petitioner violated the condition which provides that he shall not leave the judicial district without permission of the Court, by traveling to El Paso, Texas, when he had only received permission from the Court to travel to Albuquerque, New Mexico.
Petitioner pled guilty to an information in regard to the federal drug conspiracy charges in the United States District Court for the Western District of Texas at Case No. EP-11-cr-356 PRM(1), and, on November 3, 2011, was sentenced by the district court to a term of imprisonment of 46 months and a term of supervised release of five years for violating 21 U.S.C. §§ 841 and 846. Shortly thereafter, on December 22, 2011, this Court, pursuant to the Petition filed by the probation officer, found that Petitioner had again violated the terms of his supervised release and revoked his supervision. The Court sentenced him to a term of imprisonment of 33 months, consisting of 11 months at each of Counts One and Two at Criminal No. 00-136, and 11 months at Count One at Criminal No. 00-146, all to be served consecutive to each other and consecutive to the sentence imposed by the Western District of Texas at Case No. EP-11-cr-356 PRM(1). This Court did not impose an additional term of supervised release. Petitioner appealed the Court's sentence upon revocation, but the Third Circuit Court of Appeals affirmed this Court's judgment on July 1, 2013.
On September 3, 2013, Petitioner, acting pro se, filed the present motion pursuant to 28 U.S.C. § 2255. On September 5, 2013, in accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), the Court issued an Order advising Petitioner that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prohibits consideration of a second or successive habeas petition absent certification from the Third Circuit that certain very specific and rare circumstances exist. With that in mind, Petitioner was ordered to advise the Court as to how he wished to proceed in this case, and specifically, whether he wished to have his motion ruled upon as filed and lose the ability to file successive petitions absent Third Circuit certification, or whether he wished to withdraw the motion and file one all-inclusive Section 2255 petition within the one-year statutory period of the AEDPA. When Petitioner failed to respond, the Court proceeded under his motion as filed. The Court will address the claims raised in Petitioner's instant petition below.
Pro se pleadings are held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Holley v. Department of Veterans Affairs, 165 F.3d 244, 247 (3d Cir. 1999). However, even a pro se plaintiff must be able to prove a "set of facts in support of his claim which would entitle him to relief.'" Haines, 404 U.S. at 520-21 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
As noted, Petitioner brings his pro se petition pursuant to Section 2255. This statute permits a "prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States... [to] move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). An evidentiary hearing is not required on a Section 2255 motion if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
In his motion and memorandum, Petitioner claims he is entitled to relief under Section 2255 on the basis of ineffective assistance of counsel. In raising this claim, Petitioner identifies two areas in which his counsel was allegedly ineffective. First, he alleges that his counsel was ineffective by failing to object to the revocation sentence imposed by this Court on double jeopardy grounds because he received two criminal history points in his Western District of Texas case for committing that offense while on supervised release. Second, he objects to his counsel failing to obtain a Presentence Investigation Report ("PIR") which would have enabled him to establish that Petitioner was authorized to act as a government agent while committing the crime for which he was convicted in the Western District of Texas. For ...