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Johnson v. United States

United States District Court, S.D. Illinois

April 27, 2017

DEMARCUS O. JOHNSON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          Michael J. Reagan United States District Judge

         1. Introduction/procedural posture

         This matter comes before the Court after an evidentiary hearing on Petitioner Demarcus Johnson's habeas corpus petition, filed under 28 U.S.C. § 2255 (Docs. 1, 7). The Court appointed counsel for Petitioner Johnson pursuant to Administrative Order 176 because the petition potentially presented issues related to then-recent Supreme Court precedent. After briefing by appointed counsel, a response by the Government, and multiple amendments to account for rapidly changing precedent, the parties agreed that an evidentiary hearing was necessary to resolve the ineffective assistance of counsel portion of Petitioner Johnson's habeas petition (See Docs. 11, 16, 17). The other aspect of the petition was a claim for sentencing relief based on Petitioner Johnson's classification as an armed career criminal-an issue which was set aside for purposes of the evidentiary hearing. The Court has now conducted the hearing, and in the interim the Supreme Court has also ruled on the armed career criminal act issue pending in this case. Accordingly, the following analysis disposes of both issues raised by Petitioner Johnson, finding that he is not eligible for relief on either basis.

         2. Facts

         On March 4, 2014, Petitioner Demarcus Johnson was charged via a single-count grand jury indictment with distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (See CM/ECF, S.D. Ill., Case No. 14-30047, Doc. 1). He pled guilty via a plea agreement and stipulation of facts on August 13, 2014 (Id. Docs. 26, 27). Following a presentence investigation report, and an opportunity for counsel to object, Petitioner Johnson was sentenced on November 14, 2014 to a term of imprisonment (See Id. Doc. 37). Throughout his criminal case, Petitioner Johnson was represented by attorney Harry Anderson. Following sentencing, a direct appeal was not filed.

         In March of 2015 Petitioner Johnson moved for the production of legal documents from his criminal case (See id., Doc. 44). Subsequently in September of 2015 Petitioner Johnson filed his habeas corpus petition seeking relief from his sentence based on ineffective assistance of counsel, and his classification as a career offender under the Sentencing Guidelines (Docs. 1, 11). In relation to his ineffective assistance of counsel claim, Petitioner Johnson argued that his trial counsel (Harry Anderson) did not thoroughly review his plea agreement with him, did not show him the presentence investigation report, and did not file an appeal despite being told to do so (Doc. 11 at 1-6). The Government responded to this claim with an affidavit from attorney Harry Anderson wherein he indicated that he did not fail or refuse to file an appeal (Doc. 5-3). Based on these direct contradictions, the parties sought an evidentiary hearing.

         Petitioner Johnson's habeas petition also included the claim that his sentence, pronounced in part based on the armed career criminal provisions of the Sentencing Guidelines, was constitutionally infirm based on a logical extension of Supreme Court precedent-namely Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that the residual clause of the ACCA was unconstitutionally vague) and United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (overruling prior circuit precedent foreclosing vagueness challenges to the guidelines and holding that the residual clause in § 4B1.2(a)(1) is unconstitutionally vague); United States v. Rollins, 836 F.3d 737, 743 (7th Cir. 2016) (holding that the application note to the residual clause of § 4B1.2(a) that listed certain crimes as predicates for career offender classification has no independent legal authority and is thus unconstitutional in line with Hurlburt's holding). When making a request for an evidentiary hearing, the parties set this issue to the side because the timeliness and merits of the claim rose or fell with a then-pending Supreme Court case, Beckles v. United States, 2017 WL 855781, No. 15-8544, slip op. (S.Ct. March 6, 2017) (overruling Hurlburt).

         The Court held an evidentiary hearing on April 6, 2017, to gather evidence on the ineffective assistance of counsel claim. Petitioner was present and was represented by appointed counsel, Dan Cronin. Petitioner testified on his own behalf. He stated that his trial counsel, Harry Anderson, did not fully advise him as to the terms and implications of the plea agreement. Though he admitted that Anderson visited him and spoke to him on the phone multiple times while he was in pre-trial detention, Petitioner Johnson did not feel that he was fully advised on the plea agreement. He indicated that at his plea colloquy he did not verbalize his concerns to the Magistrate Judge who accepted the plea and rendered a report and recommendation that was accepted by the undersigned because Anderson warned him the deal could fall apart if he did so.

         Following the plea, he claims he never had a chance to see his presentence investigation report until he was in Bureau of Prisons (”BOP”) custody. He testified that at sentencing he did not express any concerns about that report or his plea to the Court because Anderson had convinced him that it would be best to just agree to whatever the judge said. After sentencing he thought Anderson was going to visit him in the ‘bull pen' holding area of the courthouse, but Anderson never came. He asked Anderson to file an appeal on his behalf, but did not learn that Anderson never filed one until sometime in 2015.

         The Government called Harry Anderson as a witness. Anderson testified that he reviewed the plea agreement and presentence investigation report thoroughly with Petitioner Johnson at the appropriate times during the proceedings. He stated that he did visit Johnson after sentencing in the ‘bull pen' area. He advised Johnson that given the terms of the plea agreement it probably would not be advisable to appeal his sentence, but he did not refuse to file an appeal. Johnson never asked him to appeal the matter.

         3. Legal Analysis

         “An evidentiary hearing on a § 2255 motion is required unless the record “conclusively show[s] that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Ineffective assistance claims often require an evidentiary hearing because they frequently allege facts that the record does not fully disclose. See Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). Further, they generally require an evidentiary hearing if the record contains insufficient facts to explain counsel's actions as tactical.” Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008).

         A habeas petitioner's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the petitioner must show that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This requires showing that counsel made grave errors, errors so serious that the representation fell below the Sixth Amendment standard. Id. Second, the petitioner must show that the deficient performance prejudiced the defense. Id. This requires showing that counsel's errors ...


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