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Johnson v. United States

United States District Court, Fourth Circuit

July 31, 2013

LAMONT JOHNSON, pro se Petitioner,
v.
UNITED STATES OF AMERICA Respondent. Crim. No. PJM 09-0588

MEMORANDUM OPINION

PETER J. MESSITTE, District Judge.

Lamont Johnson, pro se, has filed a Motion to Vacate his sentence under 28 U.S.C. § 2255 [Paper No. 43]. The Motion is DENIED.

I.

Johnson was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He pled guilty through a "straight-up" plea, i.e., without the benefit of a plea agreement. In a joint letter to this Court, however, the parties agreed to the following statement of facts:

On July 30, 2009, Prince George's County Police (PGPD) stopped Lamont Luther JOHNSON while driving in Upper Marlboro, Maryland for a broken right brake light. When the officer approached the vehicle he observed the operator reach under the driver seat, exit the vehicle and move towards the passenger side of the vehicle. The operator was ordered back to the driver side of the vehicle, at which time JOHNSON fled on foot. Law enforcement recovered a.38 caliber revolver bearing an obliterated serial number loaded with six (6) rounds of ammunition from under the driver's seat. Officers also recovered a folder containing JOHNSON's learner's permit, social security card and birth certificate from the passenger seat. The officer looked at the picture on the learner's permit and identified that individual as the same who had just fled the scene

Johnson was sentenced to 183 months in prison, after receiving a sentencing enhancement under the Armed Career Criminal Act, which increased his criminal history category to a level V.

Johnson appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed his conviction and sentence on December 1, 2011. On December 16, 2011, an Assistant Federal Public Defender (AFPD), who represented Johnson during his plea, sentencing, and appeal, informed him by mail of the Fourth Circuit's decision. The AFPD advised Johnson that he could file a petition for certiorari with the United States Supreme Court, but that the odds of such a petition succeeding were very slim. The APFD further advised that she would consider any such appeal to be frivolous, and would therefore need to withdraw from Johnson's case if he opted to pursue a cert petition. Johnson was told that he would need to file the petition by no later than February 29, 2012, and was asked to contact the AFPD regarding his intention to appeal. Johnson never responded to the AFPD, nor did he file a cert petition on his own. On November 19, 2012, Johnson tiled the present Motion.

II.

Johnson argues that his counsel rendered constitutionally ineffective assistance when she failed to pursue a motion to suppress, encouraged him to plead guilty, and failed to consult him regarding pursuit of a cert petition to the Supreme Court.[1] Johnson further asserts that lie entered into his guilty plea unintelligently and involuntarily, and requests that the plea be set aside.[2]

A.

Johnson first contends that his lawyer rendered ineffective assistance of counsel when she failed to file a motion to suppress the revolver found under the driver's seat of the car Johnson had been driving.

To demonstrate ineffective assistance of counsel, a petitioner needs to make two showings: first, he must show that his counsel's representation fell below an objective standard of reasonableness; and, second, he must show that counsel's deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).

With respect to the first prong, judicial scrutiny of counsel's performance is "highly deferential, " and the petitioner must overcome the presumption that counsel's decision-making was the result of sound trial strategy. See id. at 689. Under the second prong-the prejudice prong the petitioner must show that there was a reasonable probability of a different result had counsel not committed the alleged error. Id. at 694.

Johnson has given no reason for the Court to conclude that counsel's failure to file a motion to suppress constituted deficient performance, nor has he supplied any reason for the Court to believe ...


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