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Johnson v. United States

United States District Court, Fourth Circuit

August 2, 2013

LARRY JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. RDB-07-0153

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

On October 6, 2011, the pro se petitioner Larry Johnson ("Petitioner") filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 (ECF No. 90). On February 23, 2012, Petitioner filed a Motion to Amend his Motion to Vacate (ECF No. 100). Although Petitioner's Motions are long and meandering, [1] this Court is able to discern five separate claims: (1) that this Court's conclusions were unsupported by fact; (2) that the federal prosecution was a sham prosecution; (3) that this case warranted a retroactive application of Arizona v. Gant, 556 U.S. 332 (2009); (4) that Petitioner's counsel rendered ineffective assistance; and (5) that the Government's actions regarding some of the evidence violated Petitioner's rights under Brady v. Maryland, 373 U.S. 83 (1963). This Court has reviewed Petitioner's Motion to Vacate (ECF No. 90), Petitioner's Motion to Amend (ECF No. 100), the Government's Opposition (ECF No. 98), and Petitioner's Reply to the Government's Opposition (ECF No. 99), and finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated below, Petitioner's Motion to Amend (ECF No. 100) is GRANTED and Petitioner's Motion to Vacate (ECF No. 90) is DENIED.

BACKGROUND

On September 7, 2007, a jury found Petitioner Larry Johnson guilty on all three counts of his indictment (ECF No. 57). These three counts included: (1) possession with intent to distribute cocaine and heroine in violation of 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On November 29, 2007, this Court sentenced Petitioner to a total term of 360 months, as well as three years of supervised release and an assessment of $300. Judgment, ECF No. 60.

The facts of this case are taken from Petitioner's appeal of his conviction to the United States Court of Appeals for the Fourth Circuit. United States v. Johnson, 599 F.3d 339, 341-342 (4th Cir. 2010). On September 14, 2006, Detective Eric Green ("Detective Green") was conducting video surveillance of the 1800 block of Pennsylvania Avenue in Baltimore City, an area known to be infested with narcotics activity. Detective Green, who has executed thousands of drug arrests, observed Petitioner engage in what appeared to be three drug sale transactions. In each of these three transactions, an individual would quickly approach Petitioner, engage in a hand-to-hand exchange, and then immediately leave the area.

Detective Green contacted Officer Bannerman and another officer and asked them to arrest Petitioner. While Detective Green waited for the arrest team to arrive at the scene, he used his pole camera to continue observing Petitioner. He watched Petitioner mill about the street, leave the area for a brief time, and then return to the original place where he had engaged in the three hand-to-hand exchanges. After reaching into his pocket, Petitioner entered a Chinese carry-out restaurant. Two suspected buyers were with Petitioner. The first entered the store with Petitioner, but the second saw the officers' marked patrol car and continued walking past the restaurant.

Officer Bannerman entered the restaurant and identified himself. When he asked to see Petitioner's hands, Petitioner refused compliance and threw what Officer Bannerman correctly identified as a heroine gel cap over the restaurant counter. After a struggle, Officer Bannerman arrested Petitioner. Officer Bannerman recovered the gel cap and found $102 in Petitioner's possession. While the officers drove Petitioner to the police station in their patrol car, Detective Green reviewed the video surveillance again.

Upon review of the video surveillance, Detective Green noticed that before engaging in the three hand-to-hand exchanges, Petitioner had accessed a parked car and appeared to have removed something from it. Based on his belief that Petitioner was storing narcotics in that car, Detective Green instructed Officer Bannerman to return to the scene and secure the car. When Officer Bannerman returned, he looked through the car window and saw car keys and narcotics resembling the heroine gel cap seized during Petitioner's arrest. Detective Green instructed Officer Bannerman to use the keys and drive the car to the police station. When Officer Bannerman opened the car, he found not only more heroine gel caps, but also suspected cocaine. At the police station, the officers conducted a thorough search of the car. They found suspected cocaine and heroine, a mirror with suspected narcotics residue, a razor blade, and a handgun.

After his indictment, Petitioner filed two suppression motions regarding the evidence obtained in the course of his arrest and the search of the car. After a suppression hearing, this Court denied both motions to suppress. Petitioner proceeded to trial, after which a jury found him guilty on all three counts of his indictment. Petitioner then appealed, and the United States Court of Appeals for the Fourth Circuit affirmed both Petitioner's conviction and sentence in a published opinion on April 1, 2010. Johnson, 599 F.3d 339. On October 6, 2011, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255.

STANDARD OF REVIEW

This Court recognizes that Petitioner Larry Johnson ("Petitioner") is proceeding pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). There are limited grounds upon which a petitioner may state a claim for relief under 28 U.S.C. § 2255. Under Section 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where (1) "the sentence was imposed in violation of the Constitution or laws of the United States, " (b) the court lacked "jurisdiction to impose the sentence... [(c)] the sentence was in excess of the maximum authorized by law, or [(d) the sentence] is otherwise subject to a collateral attack." 28 U.S.C. § 2255. "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). In general, prisoners are instructed to raise any Sixth Amendment ineffective assistance of counsel claims in a motion under 28 U.S.C § 2255. Id. "Ineffective assistance claims are generally not cognizable on direct appeal... unless [an attorney's ineffectiveness] conclusively appears from the record.'" United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (quoting United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)).

ANALYSIS

Petitioner has filed two Motions containing the claims that he believes justify relief under 28 U.S.C. § 2255. While Petitioner's Motion to Vacate, at 113 pages, is long and meandering, this Court discerns five separate claims: (1) that this Court's conclusions were unsupported by fact; (2) that the federal prosecution was a sham prosecution; (3) that this case warranted a retroactive application of Arizona v. Gant, 556 U.S. 332 (2009); (4) that Petitioner's counsel rendered ineffective assistance; and (5) that the Government's actions regarding some of the evidence violated Petitioner's rights under Brady v. Maryland, 373 U.S. 83 (1963). In his Motion to Amend his Motion to Vacate, Petitioner merely expands on the sham prosecution claim in his original Motion to Vacate. Specifically, Petitioner ...


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