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United States v. Johnson

United States District Court, D. Maryland

July 20, 2017

UNITED STATES OF AMERICA
v.
AVAUN JOHNSON

          MEMORANDUM AND ORDER

          Marvin J. Garbis United States District Judge

         The Court has before it Petitioner's Motion to Vacate, Set Aside, or Correct Sentence [Document 80]. The Court finds a hearing unnecessary.

         I. BACKGROUND

         The Indictment charges Defendant Avaun Johnson (referred to herein as “Petitioner” or “Johnson”) with three federal offenses committed on February 7, 2014, that are related to a shooting that had occurred almost a month earlier.

         On January 21, 2014, Mr. Seifullah Bridges (“Bridges”) was shot multiple times, allegedly by Petitioner Avaun Johnson.[1] The shooting took place in or near 960 President Street in Annapolis, and the shooter left him bleeding on the sidewalk nearby.

         Investigator John Murphy of the Annapolis Police Department investigated and prepared an Investigative Report [ECF No. 86-3] in which he described Bridges' statements about a trip to Philadelphia where he met a man whom he named as “Naw” or “Pop” (who turned out to be Johnson), how the two later agreed to meet in Annapolis on January 21, and the events leading to the shooting. On January 27, Bridges identified a photo of Johnson as a photo of the man who shot him but would not sign it then and asked Murphy to come back the next day. On January 28th, Murphy returned to see Bridges who was then represented by counsel and did not then look at the photo or make any identification. On January 30, Bridges' attorney contacted Murphy and agreed to let Bridges look at photos. On February 6, Murphy met with Bridges and his attorney. Bridges then identified a photograph of Johnson as a photo of the man who shot him and signed a document confirming the identification.

         On February 7, 2014, Annapolis police officers went to Johnson's apartment to execute a state arrest warrant. The officers saw Petitioner leaving the apartment carrying a trash bag. When Johnson saw the police officers he returned to his apartment and dropped the bag inside. Soon thereafter Johnson was taken into custody and the police found that the bag contained a substance they suspected to be marijuana. Johnson was taken to the police station and spontaneously said “I'm f**ked. They are going to search and find the gun, and I'm a convicted felon with a handgun.” Plea Agreement [ECF No. 65 at 4]. The police officers obtained a search warrant from a state court district judge and effected a search of the apartment, finding therein 62 grams of heroin, other controlled substances, and a 380 caliber Bersa, model Thunder, semiautomatic handgun.

         Johnson's trial counsel filed motions to suppress evidence and statements. A motions hearing and jury selection for Johnson's trial were scheduled to occur on October 26, 2015. On that day, before the hearing or jury selection took place, Johnson signed the plea agreement [ECF No. 65] in which he admitted ownership of the gun and drugs and that he intended to distribute the drugs. Id. at 5. On October 26, 2015, Johnson pleaded guilty to Count 1 (possession of heroin with intent to distribute violating 221 U.S.C. § 841(a)) and Count 3 (possession of a firearm by a felon violating 18 U.S.C. § 922(g)). Johnson also admitted to having violated conditions of supervised release in Case No. CCB-06-0554.

         On January 5, 2016, Judge Quarles imposed the sentence, pursuant to Rule 11(1)(C)(1)(c), of 151 months of incarceration on Count 1 with a concurrent sentence of 120 months on Count Three with the Government recommending - and Johnson ultimately receiving - a 48 month concurrent sentence for the supervised release violation in Case No. CCB-06-0554.

         By the instant Motion, timely filed pursuant to 28 U.S.C. § 2255, Petitioner seeks to have his conviction and sentence vacated.

         II. DISCUSSION

         Petitioner asserts that he was denied his right to the effective assistance of counsel.

         In order to prevail on a claim that counsel's representation violated his Sixth Amendment right to effective assistance of counsel, Petitioner must show (1) “that counsel's representation fell below an objective standard of reasonableness, ”[2] and (2) “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the proceedings].” Id. at 694.

         Petitioner bases his ineffective assistance claim on counsel's failure to:

a. Competently litigate a Fourth Amendment claim for suppression, and
b. Represent Petitioner effectively during plea negotiations and communicating an alleged Government threat to indict his common law wife.

         The Government contends that Petitioner was competently represented regarding his suppression motion and denies that there was any threat to indict Petitioner's common law wife.

         A. Suppression

         The subject of the suppression motion is the evidence obtained from the execution of a search warrant authorizing the Annapolis and Anne Arundel County law enforcement to search Johnson's residence. The search and seizure affidavit [ECF No. 83-1] was presented to Judge Philip Caroom of ...


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