United States District Court, W.D. Michigan, Southern Division
DOMINICK T. JOHNSON, Movant,
UNITED STATES OF AMERICA, Respondent.
J. QUIST, UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 2255, Dominick T. Johnson timely moves to
vacate, set aside, or correct his sentence, arguing four
grounds for relief: (1) that the predicate offenses for his
18 U.S.C. § 924(c) charges are not “crimes of
violence”; (2) that the Court failed to consider the 18
U.S.C. § 3553(a) factors at sentencing by not taking
into account the mandatory consecutive § 924(c) terms;
(3) that the Court was not authorized to impose mandatory
consecutive § 924(c) terms because the brandishings were
part of the conspiracy; and (4) that trial counsel was
ineffective at sentencing for not objecting to stacked §
924(c) terms. (ECF No. 1.) The Government has responded. (ECF
No. 4.) The Court finds that Johnson's arguments fail
procedurally and on the merits, so the Court will deny
and his co-defendant, Nathan Benson, were indicted on May 14,
2015, in a four-count indictment alleging armed bank robbery
and related offenses. On July 15, 2015, a superseding
indictment charged Johnson with seven counts: conspiracy to
commit bank robbery- Count 1-in violation of 18 U.S.C. §
2113(a); three counts of armed bank robbery-Counts 2, 4, and
6-in violation of 18 U.S.C. § 2113(a), (d), and (e); and
three counts of brandishing a firearm during and in relation
to the bank robberies-Counts 3, 5, and 7-in violation of 18
U.S.C. § 924(c). In January 2016, a jury found Johnson
guilty on all seven counts.
19, 2016, Johnson appeared for sentencing. Trial counsel for
Johnson contested whether multiple sentences under §
924(c) must run consecutively and argued that the total
sentence violated the Eighth Amendment as cruel and unusual
punishment, though counsel conceded that controlling
precedent foreclosed both arguments and made the objections
merely to preserve the issues for appeal. (Case No.
1:15-CR-90, ECF No. 136 at PageID.721-22.)
counsel also argued for a downward variance based on the
disproportionality of the recommended sentence as compared to
Benson, who had previously pled guilty as part of a plea
deal, and on the total length of the recommended sentence.
(Id. at PageID.722-31.) The Court recognized that it
had discretion to reduce the guidelines sentence, but
expressed concern that if the statute changed with regard to
the § 924(c) terms, a reduced sentence would not reflect
the seriousness of the crimes. (Id. at
PageID.734-35, 742.) The Court also noted that Benson was in
a very different position than Johnson because Benson pled
guilty, cooperated with the government, and rendered
substantial assistance in the prosecution of others.
Accordingly, the Court sentenced Johnson to a
within-guidelines sentence of 188 months' imprisonment on
Counts 1, 2, 4, and 6; seven years on Count 3 to be served
consecutively to all other counts; and 25 years on Counts 5
and 7 to be served consecutively to each other and all other
counts. (Id. at PageID.742-43.)
appealed, arguing, among other things, that the Court failed
to consider the mandatory § 924(c) terms when exercising
its discretion under § 3553(a)-Johnson's second
argument here-and that his § 924(c) terms could not be
stacked because the terms under Counts 5 and 7 were not
“second or subsequent” convictions-incorporated
into Johnson's fourth argument here as an ineffective
assistance of counsel claim. The Sixth Circuit rejected
Johnson's arguments and affirmed Johnson's conviction
and sentence on appeal. United States v. Johnson,
702 Fed.Appx. 349 (6th Cir. 2017).
to 28 U.S.C. § 2255(a), a prisoner in the custody of the
United States may seek collateral relief from a sentence
where “the sentence was imposed in violation of the
Constitution or laws of the United States, or . . . the court
was without jurisdiction to impose such sentence, or . . .
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack.” A
“[s]ection 2255 [motion] is not a substitute for a
direct appeal, and thus a defendant cannot use it to
circumvent the direct appeal process.” Regalado v.
United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing
United States v. Frady, 456 U.S. 152, 167-68, 102
S.Ct. 1584, 1594 (1982)). Consequently, a habeas court will
not readjudicate claims raised and rejected on direct review
“absent countervailing equitable considerations.”
Withrow v. Williams, 507 U.S. 680, 720-21, 113 S.Ct.
1745, 1769 (1993); see also DuPont v. United States,
76 F.3d 108, 110 (6th Cir. 1996) (“A § 2255 motion
may not be used to relitigate an issue that was raised on
appeal absent highly exceptional circumstances.”).
claims that a movant failed to raise on direct review are
procedurally defaulted and “may be raised in habeas
only if the defendant can first demonstrate either
‘cause' and actual ‘prejudice', or that
he is ‘actually innocent.'” Bousley v.
United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611
(1998) (internal citations omitted). To show cause, a movant
must demonstrate “that some objective factor external
to the defense impeded counsel's efforts to comply with
the . . . procedural rule.” Murray v. Carrier,
477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). The movant
also carries the burden of showing actual
prejudice-“not merely that the errors at his trial
created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170, 102 S.Ct.
at 1596 (emphasis in original). In the absence of cause and
actual prejudice, the movant may present a new claim only if
he can show actual innocence. “To establish actual
innocence, petitioner must demonstrate that, in light of all
the evidence, it is more likely that not that no reasonable
juror would have convicted him.” Bousley, 523
U.S. at 623, 118 S.Ct. at 1611 (internal citations omitted).
Importantly, “‘actual innocence' means
factual innocence, not mere legal insufficiency.”
the barriers to raising new claims on collateral review,
ineffective assistance of counsel claims are generally not
reviewable on direct appeal, but instead must be raised in a
motion under § 2255. United States v. Quinlan,
473 F.3d 273, 280 (6th Cir. 2007) (citing Massaro v.
United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693
must grant a hearing on a § 2255 motion “[u]nless
the motion and the files and records of the case show that
the prisoner is entitled to no relief.” 28 U.S.C.
§ 1155(b). Here, Johnson's arguments are primarily
legal arguments and any pertinent facts are unequivocally
presented in the record, so the Court discerns no reason to
grant an evidentiary hearing.
arguments face several procedural hurdles and would,
nevertheless, fail on the merits. The Court will briefly