United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
to 28 U.S.C. § 2255, Charles Jerome Johnson has
requested that the Court vacate his conviction and/or
sentence on the basis of ineffective assistance of counsel.
ECF No. 89 at 1. According to Johnson, he would have
accepted the government's plea offer of thirty-six months
but for his former counsel. Robert C. Bonsib. leading Johnson
to believe he had a defense against the charges, drastically
understating the penalty Johnson would receive if convicted
at trial, and tailing to advise Johnson to take the plea
offer of thirty-six months. ECF No. 89 at 3. Johnson asserts
Bonsib should have "directly and specifically
advised" that there was no possible defense to the
charges and that Johnson "absolutely should" accept
the plea agreement of thirty-six months. ECF No. 106 at 2. A
hearing is unnecessary. Eoc. R. 105.6 (D. Md. 2016). For the
reasons stated below, Johnson's Motion to Vacate
Conviction and Sentence is DENIED.
23, 2012. the Government filed a superseding indictment
charging Johnson with receiving and possessing child
pornography in violation of 18 U.S.C. § 2252A. ECF No.
24 at 1. Specifically. Count One charged Johnson with
knowingly receiving child pornography and materials that
contained child pornography on April 15. 2011. in violation
of 18 U.S.C. § 2252A(a)(2), ECF No. 24 at 1. and Count
Two charged Johnson with knowingly possessing any material
that contained an image of child pornography on May 17. 2011,
in violation of 18 U.S.C. § 2252A(a)(5)(B), ECF No. 24
at 2. Johnson, who was represented by Bonsib from his Initial
Appearance on October 13.. 2011 until August 8, 2012. ECF
Nos. 8, 70,  pleaded not guilty and the matter
proceeded to trial, ECF No. 89 at 2.
the three day trial concluded on June 14. 2012. ECF No. 48.
the jury found Johnson guilty on both counts, ECF No. 53. On
November 14, 2012, Judge Williams sentenced Johnson, who was
then represented by Matthew Kaiser, to a term of ninety-six
months. ECF No. 73. On September 4. 2014, Johnson filed this
motion, requesting that the Court vacate "his
convictions and direct the Government to re-offer its
pre-trial plea deal so that Mr. Johnson may be resentenced as
if he had pleaded guilty and agreed to fully admit his
offense conduct instead of proceeding to trial." ECF No.
89 at 4. The Court directed the government to file a
response. ECF No. 92, which was filed on May 11, 2015, ECF
submitted an affidavit in support of his motion. According to
Johnson, shortly after a search warrant was executed at
Johnson's home. Johnson retained the services of Bonsib,
who had "more than 30 years of experience practicing law
in the Greenbelt. Maryland area" and "was
experienced in cases where defendants had been charged with
using a computer to illegally obtain child
pornography." Id. ¶ 3. Johnson explained
that he viewed pornographic images of children because he was
writing a book, and never purposely saved images to his
computer's hard drive. Id. ¶ 4.
advised Johnson that cases like Johnson's case are
difficult to defend and showed Johnson a case to demonstrate
how sentences were calculated, but Bonsib never explained how
Johnson's sentence would be calculated. Id.
¶ 5. Bonsib also advised Johnson that "being
convicted at trial would not necessarily lead to [a] harsher
sentence" and that Johnson would receive "around
(or near) the minimum of 60 months imprisonment" if he
lost at trial. Id. Bonsib communicated the
Government's plea offer to Johnson, explaining that the
offer was a sentence of thirty-six months imprisonment with
no further reduction, but he did not discuss "the
advantages and disadvantages of pleading guilty versus going
to trial" nor advise Johnson to take the plea.
Id. ¶ 6. Johnson did not know that he was
facing a potential sentence of 121 to 151 months if he
rejected the plea offer. Id. ¶ 10.
mid-December 2011, Bonsib provided Johnson with approximately
twenty different judicial opinions that ruled on facts
similar to Johnson's case in which "the defendants
were successful at trial or appeal because the defendants had
viewed on the computer, but not saved, child
pornography." Id. ¶ 7. Just prior to the
start of trial, Bonsib told Johnson for the first time that
the images Johnson saved to a Microsoft Word document
demonstrated that he exercised dominion and control over the
images on his computer. Id. ¶ 8.
government submitted an affidavit from Bonsib in support of
its opposition. In Bonsib's affidavit, he states that he
had a number of conferences with Johnson and '"spent
many hours discussing the issues of his case, including
discussing possible legal and factual defenses and how best
to present his position regarding the allegations brought
against him in this matter.*' EC1; No. 101.
They also discussed what defenses Johnson "might offer,
his potential testimony before the jury and how he should
best present his defense and his own testimony, should he
have decided to testify in his own defense."
Id. Shortly before trial, the Government filed
"a motion in limine that was eventually granted
by the Court and had the effect of essentially
'gutting' the substance of what Mr. Johnson wanted to
present, through his testimony, to the jury."
Bonsib advising Johnson that "the likelihood of a
successful outcome after trial was slight, " Johnson
consistently and without exception expressed that he would
not accept any plea agreement "that exposed him to the
possibility of incarceration or involved the requirement of
registration on the Sexual Offender Registry"
Id. The Government offered a plea that would have
required Johnson to agree to a thirty-six month term of
imprisonment and Johnson was fully advised of the possibility
of resolving his case on those terms. Id. However,
Johnson maintained that he would not accept a plea
irrespective of whether the risk of post-trial sentencing was
“3 years, 5 years or 15 years, or any period of
support of his affidavit, Bonsib attached memoranda that
summarized some of his interactions with Johnson. HCF No.
101, Ex, 1. The memoranda detail Bonsib's repeated
attempts to explain to Johnson that he would likely be
convicted at trial and Johnson's firmness regarding not
accepting any plea that included incarceration. Bonsib also
attached a statement and an email from Johnson that expressed
Johnson's insistence on not accepting any plea that