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Johnson v. United States

United States District Court, M.D. Pennsylvania

May 22, 2017

ERIC JOHNSON, Petitioner


          Yvette Kane, District Judge United States District Court.

         Before the Court is Petitioner Eric Johnson's (“Petitioner” or “Johnson”), motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 98.) For the reasons that follow, the Court will deny Petitioner's motion.

         I. BACKGROUND

         On June 13, 2012, the United States entered a four-count Indictment against Petitioner, charging him with multiple violations of the Controlled Substances Act. (Doc. No. 1.) Count I alleged that Petitioner was responsible for distributing and possessing with the intent to distribute at least 280 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). (Id.) Count II alleged that Johnson traveled in interstate commerce to further the drug trafficking activity described in the other counts of the Indictment in violation of 18 U.S.C. § 1952(a)(3). (Id.) Count III charged Johnson with using a communication facility such as a telephone or cellphone to further felony drug trafficking crimes in violation of 21 U.S.C. § 843(b). (Id.) Count IV, which incorporated Counts I-III of the Indictment, alleged that Johnson was engaged in a criminal conspiracy to distribute at least 280 grams of crack cocaine in violation of 21 U.S.C. § 846. (Id.)

         On July 17, 2012, Petitioner appeared before Magistrate Judge Smyser and pleaded not guilty to the Indictment. (Doc. No. 11.) Thomas A. Thornton, of the Federal Public Defender's Office (“Attorney Thornton”), represented Petitioner, who entered into plea negotiations with the Government, resulting in a plea agreement. (Doc. No. 34.) The agreement called for Petitioner to plead guilty to a one-count Superseding Information asserting a violation of 21 U.S.C. § 846. (Id.) In essence, the Superseding Information was Count IV of the original Indictment without representing the quantity of drugs in the count. (Id.)

         On July 16, 2013, Johnson appeared before Magistrate Judge Carlson. (Doc. No. 41.) Johnson was advised that he faced up to twenty (20) years' imprisonment by pleading guilty to the Superseding Information, and that the drug quantity would be in dispute. (Doc. No. 53.) Petitioner pled guilty and Magistrate Judge Carlson recommended to the Court that his guilty plea be accepted. (Doc. Nos. 43, 45.)

         The United States Probation Office prepared a Presentence Report (“PSR”), which classified Johnson as a career offender with a criminal history category of VI. Based on the amount of drugs the Probation Office determined to be involved, Johnson was assigned a total offense level of 33, after application of a two-level upward adjustment for possession of a dangerous weapon and then a three-level reduction for acceptance of responsibility. Because of the statutory maximum of 20 years, Johnson's guideline range was restricted to 235-240 months. (PSR at 11.)

         In a letter dated September 26, 2013 from Attorney Thornton to John Vought of the United States Probation Office, Johnson objected to the drug quantity and the two-level enhancement for possession of a firearm, arguing that the quantity of drugs and the firearm found in a van that was searched at the time of his arrest should not be attributable to him, as he did not possess the van. (Doc. No. 108-1.) At his sentencing hearing on December 5, 2013, Johnson asked that Attorney Thornton be removed, and new counsel appointed. By Order of the same date, the Court granted Johson's motion and appointed Attorney Terrance J. McGowan, (“Attorney McGowan”), to represent him. (Doc. No. 52.) Subsequently, Johnson filed a motion to withdraw his guilty plea with a supporting brief. (Doc. Nos. 57, 58.) The Court held a hearing on Johnson's motion on June 25, 2014, during which both Johnson and Attorney Thornton testified. By Memorandum and Order dated June 30, 2014, the Court denied Johnson's motion. (Doc. Nos. 67, 68.)

         On July 30, 2014, the Court conducted Johnson's sentencing hearing, at which time the Court addressed Johnson's objections to the PSR. After hearing the testimony of several witnesses and the arguments of counsel, the Court agreed with Johnson that his criminal history category of VI was too high, and reduced it to IV. (Doc. No. 79 at 115.) Accordingly, with an offense level of 33, Johnson's imprisonment guidelines range was 188-235 months' imprisonment. (Id.) The Court sentenced him to 200 months' imprisonment. (Doc. No. 76.)

         Johnson, through Attorney McGowan, filed an appeal on August 5, 2014, alleging ineffective assistance of counsel by his original counsel, Attorney Thornton. (Doc. No. 77.) On March 25, 2015, the Court of Appeals for the Third Circuit affirmed this Court's judgment. (Doc. No. 89.) In an opinion accompanying its mandate issued May 1, 2015, the Third Circuit addressed Johnson's claim of ineffective assistance of counsel as to Attorney Thornton, and finding it to be without merit, affirmed his conviction and sentence. (Doc. No. 90-1 at 2, 10.) On October 26, 2015, Johnson filed a Motion to Reduce Sentence pursuant to USSC Amendment 182 (Doc. No. 91), which the Court granted on April 27, 2016, reducing his sentence from 200 months' imprisonment to 188 months' imprisonment. (Doc. No. 100.)

         On April 25, 2016, Petitioner filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that he was denied his constitutional right to effective assistance of counsel. (Doc. No. 98.) Petitioner also filed a supporting brief. (Doc. No. 99.) On May 18, 2016, the Court issued Petitioner a notice of election, informing him of his rights to file a petition for relief, the potential bar on subsequent petitions, and the one-year statute of limitations. (Doc. No. 102.) On May 26, 2016, Petitioner returned the notice of election. (Doc. No. 103.) Subsequently, the Court ordered service of his motion on the United States. (Doc. No. 104.) The United States filed its opposition to the motion on October 14, 2016. (Doc. No. 108.) After seeking an extension of time to file a reply (Doc. No. 111), which was granted by the Court (Doc. No. 112), Petitioner failed to file a reply brief. Accordingly, Petitioner's Section 2255 motion is now ripe for disposition.


         Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion requesting that the sentencing court vacate, set aside, or correct his sentence on the basis “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.” 28 U.S.C. § 2255(a). However, Section 2255 does not afford a remedy for all errors that may have been made at trial or during sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, Section 2255 is implicated only when the alleged error raises “a fundamental defect which inherently results in a complete miscarriage of justice.” Addonizio, 442 U.S. at 185. Under the Antiterrorism and Effective Death Penalty Act (“AELPA”), a petitioner has one year from the time his conviction becomes final to file a Section 2255 motion. 28 U.S.C. § 2244.

         In order to establish entitlement to relief, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). See George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). The first Strickland prong requires Petitioner to “establish first that counsel's performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This prong requires Petitioner to show that counsel made errors “so serious” that counsel was not functioning as guaranteed under the Sixth Amendment. Id. In this way, Petitioner must demonstrate that counsel's representation fell below an objective standard of ...

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