United States District Court, E.D. Michigan
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
VICTORIA A. ROBERTS, District Judge.
Jonathone J. Johnson filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255, asserting that his Sixth Amendment constitutional right to effective assistance of counsel was violated. Johnson pled guilty to wire fraud in violation of 18 U.S.C. § 1343.
Johnson claims that counsel was ineffective in arguing the loss amount because he: (1) failed to request an evidentiary hearing regarding the loss amount; (2) failed to object to the basis for the loss estimate; (3) knowingly submitted an unclear sentencing memorandum and; (4) failed to argue the different interpretations of loss. He also claims that counsel was ineffective: (5) during the "pre-plea" stage, rendering his Rule 11 Plea Agreement ("Rule 11") unknowing and involuntary and; (6) in negotiating an appeal waiver.
Finally, Johnson argues that appellate counsel was ineffective because he: (7) failed to appreciate the waiver and led Johnson to believe that he had a right to appeal his sentence and; (8) failed to notify him of the Government's motion for increased restitution and failed to investigate the Federal Deposit Insurance Corporation's ("FDIC") loss claim.
The court sentenced Johnson to 87 months in prison and 3 years of supervised release. He was also ordered to pay restitution in the amount of $90, 000 to various banks and mortgage lenders. The Government filed a motion to increase the restitution amount to $678, 000; it was granted on February 28, 2012.
Johnson seeks to set aside his sentence and have the Court impose a sentence in accord with the "gain" proceeds ($912, 717.30), with a sentencing guideline of 46-57 months. He also seeks to correct his restitution amount to $70, 250, to be paid to the FDIC.
For the reasons stated, Johnson's motion is denied.
II. Statement of Facts
Following his conviction, Johnson filed a Notice of Appeal challenging the loss amount. Johnson says the Rule 11 preserved his right to appeal the Court's loss calculations. The Government filed a motion to dismiss the appeal based on the appeal waiver provision in the Rule 11. Johnson said he unknowingly entered into the Rule 11 due to: (1) ineffective assistance of counsel and (2) the Court's failure to explain his rights to him.
The Sixth Circuit granted the Government's motion to dismiss on July 16, 2013. Johnson requested a rehearing en banc; the Sixth Circuit denied it on August 19, 2013. On November 15, 2013, Johnson filed a petition for a writ of certiorari to the United States Supreme Court, which was denied on January 14, 2014. Johnson then filed the pending habeas petition.
III. Standard of Review
Under 28 U.S.C. § 2255, a federal prisoner may move to vacate his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
"A prisoner seeking relief under [§] 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was fundamental as to render the entire proceeding invalid.'" Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006). Johnson alleges an error of constitutional magnitude; he claims his Sixth Amendment right to effective assistance of counsel was violated by trial and appellate counsel.
A. Johnson's Petition is Timely Under 28 U.S.C. § 2255(f)(1)
The Government challenges the timeliness of Johnson's petition. The argument is unavailing.
Under 28 U.S.C. § 2255(f)(1), "[a] 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of - (1) the date on which the judgment of conviction becomes final..." "[A] conviction becomes final at the conclusion of direct review... As a general rule, direct review for a federal prisoner who files a petition for certiorari with the Supreme Court concludes when the Court either denies the petition or decides the case on the merits." Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2011) (citing United States v. Torres, 211 F.3d 836, 839 (4th Cir.2000)).
Johnson's habeas petition is timely; he had one year from January 14, 2014 to file it; he ...