United States District Court, S.D. Illinois
THETIS L. JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Case No. 99-cr-30022-DRH-8
MEMORANDUM & ORDER
DAVID R. HERNDON, District Judge.
This matter is before the Court on petitioner Thetis L. Johnson's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). The government filed a response in opposition of the motion (Doc. 7). For the following reasons, petitioner's motion for relief pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED.
I. Introduction and Background
Petitioner Thetis L. Johnson was convicted of drug crimes in 1999. This Court sentenced Johnson to 168 months' imprisonment and 5 years' supervised release. In 2010, petitioner was released from prison and began serving his term of supervised release on June 21, 2010 ( USA v. Johnson et al., 99-cr-30022, Doc. 587). On September 26, 2011, after violating the original terms of his supervised release, Johnson agreed to a modification of the terms of his supervised release, to include radio frequency monitoring and home detention,
Johnson's violations, which led to the modification, included 1) failing to comply with drug testing, 2) failing to notify probation about law enforcement contact, 3) failing to submit monthly reports in a timely manner, 4) failing to respond truthfully to his probation officer's questions and statements, and 5) failing to make all required payments on his court imposed fine. ( USA v. Johnson et al., 99-cr-30022-8, Doc. 677).
Subsequent to those violation, Johnson was arrested for attempting to pass counterfeit bills at a Washington Park, Illinois Hustler Club that he received following a sale of marijuana ( USA v. Johnson et al., 99-cr-30022-8, Doc. 772). The counterfeit bill discovery was reported to police by the manager of the Hustler Club after they were discovered when Johnson attempted to make change. The manager believed the bills to be counterfeit, so police were called to the club to speak with the suspect, later identified as Johnson. Officer Allen Bonds, the officer on the scene, spoke with Johnson and notified him of the situation. Officer Bonds asked Johnson if he had any more counterfeit bills, in addition to those already confiscated. Johnson admitted that he did, at which time the men stepped outside the club to speak further and Johnson agreed to empty his pocket of a large sum of bills placing them on the trunk of a nearby vehicle. (Doc. 783, p. 5-6). The incident led to Johnson's arrest.
Shortly thereafter, on April 18, 2013, the United States Probation Office for the Southern District of Illinois filed a petition seeking the revocation of Johnson's federal supervised release pursuant to 18 U.S.C. § 3583 for violations of his release terms, including those related to that June 8, 2012 arrest (Crim. Doc. 756). This Court revoked Johnson's supervised release and imposed 48 months additional imprisonment to be followed by 12 months of supervised release.
At the final revocation proceeding, petitioner denied allegations that he committed the offenses of distribution of marijuana and uttering counterfeit obligations or security, but admitted all other accusations (Id.). Ultimately the Court found Johnson committed the violations; Johnson had received the counterfeit money when he sold marijuana.
In addition to the 48 months of additional imprisonment to be followed by 12 months of supervised release, the Court included a search authorization as a special condition of supervised release. It is the search condition that Johnson appealed, and which the Seventh Circuit affirmed as a "reasonably necessary" condition under the facts of this case on October 23, 2013. United States v. Johnson, 542 Fed.Appx. 516 (7th Cir. 2013).
In his § 2255 petition, Johnson raises various claims of ineffective assistance of counsel pertaining to his revocation hearing (Doc. 1). The Court notes that the Federal Public Defender, Thomas C. Gabel represented Johnson over the course of his revocation proceedings and subsequent appeal (Doc. 7-1). In his current petition, Johnson is specifically "seeking a new hearing and ask[s] this court to vacate sentence" on the basis of ineffective assistance of counsel (Doc. 1).
A prisoner may move to vacate, set aside or correct his sentence if he claims "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).
Section 2255 is an extraordinary remedy because it asks the district court "to reopen the criminal process to a person who has already had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Accordingly, relief under Section 2255 is "reserved for extraordinary situations, " Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).
Thus, unless a movant demonstrates changed circumstances in fact or law, he may not raise issues already decided on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Further, a petitioner cannot raise constitutional issues that he could have but did not directly appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal, or unless failure to consider the claim would result in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Likewise, a Section 2255 motion cannot pursue nonconstitutional issues that were not raised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues ...