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United States v. Johnson

United States District Court, S.D. Texas, Houston Division

November 20, 2017

United States of America
v.
Cheryl Reed Johnson

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller, United States District Judge

          Defendant Cheryl Reed Johnson, proceeding pro se, filed an amended motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255 as to both Criminal Action No. H-14-047-1 and Criminal Action No. H-14-575-1 (Docket Entry No. 195).[1] The Government filed a motion for summary judgment (Docket Entry No. 196; Docket Entry No. 57), to which Defendant filed a response (Docket Entry No. 197).

         Having reviewed the amended section 2255 motion, the motion for summary judgment, the response, the record, and the applicable law, the Court GRANTS the motion for summary judgment and DISMISSES the amended section 2255 motion for the reasons that follow.

         Background and Claims

         Defendant was prosecuted for various criminal offenses in two separate Houston Division cases: Case No. 14-cr-047-l (the "47 Case"), which is the instant case, and Case No. 14-cr-575-l (the "575 Case"). Both cases were before the undersigned federal district judge. Defendant pleaded guilty in the instant case on October 14, 2014, to conspiracy to commit mail and wire fraud, conspiracy to defraud the IRS, and falsely claiming a tax refund. She pleaded guilty in the 575 Case on March 31, 2015, to conspiracy to commit mail, wire, and bank fraud, making false statements to a bank in connection with a loan, and wire fraud.

         On September 10, 2015, a single, combined sentencing hearing was undertaken covering both cases. Separate sentences were imposed for each case, and separate judgments of conviction were entered. The Court ordered the sentences to run concurrently as to both cases. Defendant filed separate notices of appeal in each case, and the Fifth Circuit Court of Appeals separately affirmed the convictions in each case.

         Defendant filed her original section 2255 motion in the instant case, but did not file a separate section 2255 motion in the 575 Case. Her claims for relief in this case overlapped with habeas challenges to the criminal proceedings in the 575 Case. Upon motion by the Government, the Court notified Defendant under Castro v. United States, 540 U.S. 375 (2003), of its intent to construe the instant section 2255 motion as a section 2255 motion co- applicable to the 575 Case. In response, Defendant filed the pending amended motion for relief under section 2255 (Docket Entry No. 195), joining her habeas claims as to both cases into one amended section 2255 motion. Likewise, the Government's pending motion for summary judgment addresses the amended section 2255 motion as to both causes of action.

         Defendant raises the following claims for habeas relief:

         1. The Government breached its plea agreement by criminally prosecuting Defendant in the 575 Case for offenses arising from conduct underlying her guilty plea in the 47 Case.

         2. Trial counsel was ineffective in

a. failing to raise breach of the plea agreement as to the Government's opposition to Defendant's request for acceptance of responsibility;
b. failing to object to imposition of relevant conduct and the grouping of the counts in separate indictments, as per Molina-Martinez v. United States; and
c. failing to raise a viable argument against the imposition of USSG § 2Bl.l(b)(16)(A), as per Honeycutt v. United States.

         3. Appellate counsel was ineffective in failing to raise claims as to the Government's breach of the plea agreement.

         In compliance with the Court's order, trial counsel and appellate counsel submitted affidavits under seal, testifying as to the facts surrounding Defendant's claims for ineffective assistance of counsel. (Docket Entries No. 191, 193.) The Government argues that Defendant's habeas claims are without merit and that the amended section 2255 motion should be dismissed.

         Legal Standards

         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).

         Breach of the Plea Agreement

         Defendant contends that, by prosecuting her in the 575 Case, the Government breached the plea agreement it reached with her in the 47 Case.

         The governing law is clear. If a defendant pleads guilty as part of a plea agreement, the Government must strictly adhere to the terms and conditions of its promises as set forth in the agreement. United States v. McClure, 854 F.3d 789, 793 (5th Cir. 2017). The defendant bears the burden of proving by a preponderance of the evidence that the Government breached an agreement. Id.

         To evaluate a defendant's claim of a breach, the courts must consider whether the Government's conduct was consistent with the defendant's reasonable understanding of the agreement. See McClure, 854 F.3d at 793. "We apply general principles of contract law in order to interpret the terms of the plea agreement." United States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007). "Thus, when a [plea] contract is unambiguous, this court generally will not look beyond the four comers of the document." United States v. Long, 722 F.3d 257, 262 (5th Cir. 2013).

         In the written plea agreement between Defendant and the Government in the 47 Case, the Government agreed that it "will not further criminally prosecute Defendant in the Southern District of Texas for offenses arising from conduct charged in the indictment." (Docket Entry No. 75, p. 6, ¶ 9) (emphasis added). The "conduct charged in the Indictment" in the 47 Case was tax fraud, conspiracy related to tax fraud, and wire fraud associated with that tax fraud; in short, it was conduct associated with filing fraudulent tax returns. (Docket Entry No. 1.)

         The indictment in the 575 Case, on the other hand, charged conduct as to mortgage fraud, which was conduct wholly unrelated to the filing of fraudulent tax returns. Defendant argues that the mortgage fraud conduct made the basis of the 575 Case was precluded by the plea agreement language in the 47 Case because the Government "was aware of those [mortgage fraud] activities" at the time of the tax fraud plea agreement. Her argument, however, is at odds with the plain language of the plea agreement itself. The Government did not agree not to prosecute all criminal conduct for which it had knowledge or awareness at the time. See United States v. Elashyi, 554 F.3d 480 (5th Cir. 2008) (involving plea agreement that expressly precluded "further criminal charges . . . arising out of the facts and circumstances known by the government at this time"). To the contrary, the plea agreement language was expressly limited to non-prosecution of any other offenses arising from the conduct charged in the 47 Case indictment. The indictments in the 47 Case and 575 Case set forth distinct, disparate criminal conduct, and Defendant does not show that the Government had expressly agreed not to prosecute her for the conduct set forth in the 575 Case indictment.

         No breach of the 47 Case plea agreement is shown, and the Government is entitled to summary judgment dismissal of this claim.

         To the extent Defendant claims that trial and appellate counsel were ineffective in not raising this claim for breach of the plea agreement, the claim is without merit. Counsel is not ineffective in failing to present groundless objections or arguments. See, e.g., United States v. Webster, 392 F.3d 787, 796 n. 17 (5th Cir .2004). Habeas relief is unwarranted.

         Ineffective Assistance of Trial Counsel

         The United States Supreme Court's decision in Strickland v. Washington provides the familiar two-pronged test for ...


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