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United States v. Johnson

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

May 14, 2018

United States of America
v.
Raymond Tierra Johnson.

          MEMORANDUM OPINION AND ORDER

          GRAY H. MILLER, UNITED STATES DISTRICT JUDGE.

         Defendant Raymond Tierra Johnson, proceeding pro se, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Docket Entry No. 832). The Government filed a response, seeking denial of section 2255 relief. (Docket Entry No. 844.) No. further pleadings were filed by defendant.

         Having reviewed the section 2255 motion, the Government's response, matters of record, and the applicable law, the Court DENIES the section 2255 motion for the reasons that follow.

         Background and Claims

         A jury found defendant guilty of one count of conspiracy to commit bank robbery by force, violence, and intimidation; two counts of bank robbery; two counts of use of a firearm in furtherance of a crime of violence; and one count of hostage taking. The Court sentenced him to 744 months' imprisonment and five years' supervised release. Defendant's conviction was affirmed on direct appeal. United States v. Smith, 822 F.3d 755, 762 (5th Cir. 2016).

         Defendant raises the following grounds for habeas relief under section 2255:

1. Trial counsel was ineffective in failing to
a. properly investigate the case;
b. object to evidence of the firearm;
c. call rebuttal witness;
d. object to the jury charge;
e. object to the timing of the sentencing hearing; and
f. challenge the PSR.
2. The trial court erred in assessing a two-level enhancement for use of a minor during commission of the offense in calculating his sentencing guideline range.

         In compliance with the Court's order, trial counsel submitted an affidavit under seal, testifying as to the facts surrounding defendant's claims for ineffective assistance of counsel. (Docket Entry No. 841.) The Government argues that Defendant's habeas claims are without merit and that the section 2255 motion should be denied.

         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).

         The pleadings of a pro se prisoner litigant are reviewed under a less stringent standard than those drafted by an attorney, and are provided a liberal construction. Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless, a pro se litigant is still required to provide sufficient facts to support his claims, and "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue." United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). Accordingly, "[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertion on a critical issue in his pro se petition ... to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

         Ineffective Assistance of Trial Counsel

         The United States Supreme Court's decision in Strickland v. Washington provides the familiar two-pronged test for establishing a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687 (1984). A court need not address both components of the inquiry if the defendant makes an insufficient showing on one. Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.").

         A counsel's performance is strongly presumed to fall within the wide range of reasonable professional assistance. Premo v. Moore, 562 U.S. 115, 121 (2011). To overcome that presumption, a habeas petitioner must "show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 121-22 (internal quotations omitted). The standard for judging counsel's representation is a deferential one. "The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom." Id.

         Defendant contends that trial counsel was ineffective in the following instances.

         Failure to ...


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