United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION (DOC. #258) AND DENYING CERTIFICATE OF APPEALABILITY
GEORGE CARAM STEEH, District Judge.
Federal prisoner Herman Norman Johnson ("Johnson"), appearing pro se, moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Johnson killed Waad Murad ("Murad"), the owner and operator of Metro Car Company ("Metro Car"), a used car dealership located on Woodward Avenue near Seven Mile Road in Detroit, to prevent Murad from communicating with federal authorities about an ongoing illegal drug investigation. A jury found Johnson guilty of:
Count One: 18 U.S.C. §§ 1512(a)(1)(C), 1512(k) - Conspiracy to Commit Murder to Prevent a Person From Providing Information Concerning a Federal Crime to a Law Enforcement Officer of the United States
Count Two: Murder to Prevent a Person From Providing Information Concerning a Federal Crime to a Law Enforcement Officer of the United States-Aiding and Abetting, 18 U.S.C. § 1512(a)(1)(C); 18 § U.S.C. 2(a)
Count Three: 18 U.S.C. § 922(g) - Felon in Possession of a Firearm (Doc. #35). The court imposed concurrent life sentences for the conspiracy and murder convictions and a concurrent 10-year sentence for the felon-in-possession conviction.
Before the court is Johnson's § 2255 motion. Johnson challenges the sufficiency and particularity of the affidavit used in support of the search warrant that led to the acquisition of evidence of his crimes. In particular, Johnson claims that his rights under the Fourth Amendment to the United States Constitution were violated because there was no probable cause to search his home. In addition, Johnson claims he received ineffective assistance of counsel. The government has filed a response to Johnson's motion. For the reasons set forth below, Johnson's motion shall be denied.
In 2004, the Drug Enforcement Administration ("DEA") began investigating Metro Car and Murad after multiple vehicles registered to or purchased from Metro Car "were stopped in various parts of the country and found to be carrying large quantities of cocaine or currency." (Doc. #249 at 1). The investigation resulted in a raid of Metro Car pursuant to a federal warrant in November 2004. The raid "uncovered records of persons in the Detroit drug community who had purchased luxury cars under false names from Metro Car." ( Id. at 2).
Murad agreed to cooperate with the DEA in its investigation. Shortly after, on March 17, 2005, Murad was killed while he sat in the driver's seat of his vehicle, with another person sitting passenger, in Metro Car's parking lot. Two individuals approached the vehicle. One fired a single shot into Murad's head, killing him.
DEA Special Agent Edward Donovan ("Agent Donovan") began an investigation into Murad's killing. Murad's family publicly offered a $50, 000 reward for information leading to the apprehension of those responsible for Murad's killing, and, shortly after, an unknown woman called Metro Car stating that she had information about the shooting and knew where the shooter lived. The woman also knew two other people (her boyfriend and his associate) who had information about the shooting. Agent Donovan spoke with all three informants on multiple occasions.
Through his communications with the informants, Donovan learned that the person responsible for Murad's shooting 1) went by the name "Little Herm" or "Little Hearn"; 2) was a dark-skinned 30-to-35-year-old bald black male with a disfigured lip, 5'4" to 5'5" tall, and weighing between 130 and 155 pounds; 3) lived at 14270 Strathmoor in Detroit; 4) used the cell phone number XXX-XXX-XXXX; 5) bragged about "taking care of some work on Woodward" and that he was "paid in stacks" for shooting Murad, in the days following Murad's killing; and 6) that he was in possession of the gun (a chrome revolver) used to kill Murad and was attempting to get rid of it or trade it. The informants told Agent Donovan that they had been to Little Herm's home and that they had communicated with him by telephone. It was also communicated to Agent Donovan that officers needed to move fast or risk Little Herm disposing of the chrome revolver used in Murad's killing.
In addition to communicating with the informants, Agent Donovan obtained cell phone tower records attributed to the phone number associated with Little Herm. The records showed that, at the time of Murad's killing, the phone bearing the number XXX-XXX-XXXX was registered to Frederick Harrison. The cell phone was drawing reception from the closest cell phone tower to where Murad was killed at the time the shooting occurred. In addition, cell phone records confirmed phone calls going back and forth between the informants and the cell phone number associated with Little Herm to support the informants' statements that they knew Little Herm.
At some point during the investigation, Agent Donovan, in communicating with other agents, believed that Little Herm's real name was "Zachary Hearn." Agent Donovan asked one of the informants if Little Herm's real name was Zachary Hearn. The informant replied, "I think that is it. I'm not sure, but I think that's it." The informant proceeded to tell Agent Donovan that he knew Little Herm by his nickname only and was unsure of Little Herm's actual name.
On March 29, 2005, a joint task force executed a search warrant at 14270 Strathmoor in search of items related to Murad's killing. The affidavit in support of the search warrant referred to the person expected to be found in the home with the weapon used in Murad's killing as "Zachary Hearn Jr., " not "Little Herm" or "Little Hearn." Johnson was found inside the home holding a cell phone with the number XXX-XXX-XXXX. In addition, three firearms were found inside the home, one of them a chrome revolver matching ...