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Johnson v. United States

United States District Court, W.D. Michigan, Southern Division

July 30, 2019

DOMINICK T. JOHNSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          GORDON J. QUIST, UNITED STATES DISTRICT JUDGE

         Pursuant 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 Johnson's motion.

         I. Background

         Johnson 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.

         On July 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.)

         Trial 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.)

         Johnson 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).

         II. Motion Standard

         Pursuant 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.”).

         Additionally, 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.” Id.

         Despite 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 (2003)).

         A court 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.

         III. Analysis

         Johnson's arguments face several procedural hurdles and would, nevertheless, fail on the merits. The Court will briefly address ...


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