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Johnson v. United States

United States District Court, D. Connecticut

February 23, 2018



          Hon. Vanessa L. Bryant, United States District Judge.

         Petitioner Michael Johnson (“Johnson” or “Petitioner”) brings this pro se petition for habeas relief under 28 U.S.C. § 2255, asserting eleven ineffective assistance of counsel claims against his counsel who represented him for trial and sentencing. This motion is nearly identical to that filed by the petitioner's co-defendant Jermaine Jones. For the foregoing reasons, this Motion to Vacate, Set Aside, or Correct Sentence, [Dkt. 1], is DENIED.


         On April 1, 2010, a grand jury returned an indictment charging Mr. Johnson and his two co-defendants, Sheikera Williams and Jermaine Jones, with 70 counts of bank fraud in violation of 18 U.S.C. § 1344, one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, and three counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. United States v. Williams, Case No. 10-cr-00080 (VLB) (hereinafter “Williams”), [Dkt. 1 (Sealed Indictment)]. At the arraignment on June 29, 2010, Mr. Johnson entered a plea of not guilty and was appointed David J. Wenc (“Attorney Wenc”) as CJA counsel. See Williams [Dkt. 16 (Arraignment)]. On May 5, 2011, Johnson moved for appointment of substitute counsel to replace Attorney Wenc, stating he and Attorney Wenc were on “different pages” regarding what motions and evidentiary hearings were appropriate. Williams [Dkt. 55.] The Court held a hearing on May 13, 2011, granted the motion for Attorney Wenc to withdraw as counsel, and appointed substitute CJA counsel. Williams [Dkt. 58.] On May 17, 2011, Attorney Michael Gerard Dolan (“Attorney Dolan”) appeared as CJA counsel. Williams [Dkt. 60.]

         Co-defendant Williams pleaded guilty on October 3, 2011. Williams [Dkt. No. 104 (Change of Plea Hearing)]. A Superseding Indictment was issued on October 11, 2011, which decreased the total counts and instead included seven counts of bank fraud, one count of conspiracy to commit bank fraud, and seven counts of aggravated identity theft, all in violation of the same statutes as previously stated. Williams [Dkt. No. 115 (Superseding Indictment)]. After several continuances, the trial was ultimately scheduled for November 2011. Williams [Dkts. 157-162.]

         The trial began on November 2, 2011 and the jury rendered its verdict on November 17, 2011: guilty on all counts. Williams [Dkt. No. 180 (Jury Verdict)]. Mr. Johnson was sentenced on May 30, 2012 and received 240 months' imprisonment on the bank fraud and conspiracy counts to run concurrently; 24 months' imprisonment on the aggravated identity theft counts to run concurrently to each other but consecutively to the 240 months; 60 months' supervised release on the bank fraud and conspiracy counts to run concurrently; 12 months' supervised release on the aggravated identity theft counts to run concurrently; a special assessment of $1, 500.00; and $237.930.00. See Williams [Dkt. No. 244 (Judgment)].

         By and through Attorney Dolan, Mr. Johnson appealed his sentence. Williams [Dkt. No. 251 (Notice of Appeal)]. The Second Circuit affirmed the sentence in a summary order issued on February 26, 2014. Williams [Dkt. No. 291 (Mandate)]. The Second Circuit upheld his sentence and found that this Court did not err in (1) calculating the loss amount pursuant to § 2B1.1(b)(1), (2) applying a two-level enhancement for “sophisticated means” under § 2B1.1(b)(10), and (3) applying a four-level enhancement for 50 fifty or more victims pursuant to § 2B1.1(b)(2)(B). See Id. at 6-7. Thereafter, Mr. Johnson timely filed this habeas petition before the Court. 18 U.S.C. § 2255(f) (setting a one-year limitations period from the date the judgment of conviction becomes final); [Dkt. 1 (Motion to Vacate filed October 30, 2014).]

         Legal Standard

         Section 2255 enables a prisoner in federal custody to petition a federal court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Relief under Section 2255 is generally available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal quotation marks and citation omitted). Section 2255 provides that a district court should grant a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         Claims for ineffective assistance of counsel are analyzed under the two part test established in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a movant must both allege facts demonstrating that “counsel's representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 687-88, 694. As to the first showing, a movant must demonstrate that counsel's performance “amounted to incompetence under ‘prevailing professional norms'” rather than demonstrating that the performance “deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690). As to the second showing, a movant must demonstrate “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.


         Mr. Johnson brings 11 ineffective assistance of counsel claims which dispute instances that occurred during both trial and sentencing. The Court addresses each claim in turn.

         I. Failure to Raise a Batson Challenge

         Mr. Johnson claims the jury pool included approximately five African Americans and the Government used its peremptory challenges to strike all but one of these individuals. Motion at 8. The use of peremptory challenges, Mr. Johnson contends, was done “in a systematic racial[ly] mot[i]vated manner to [e]nsure that neither one of the African-American prospective jurors were actually seated on the jury.” Id. As a result, the jury was comprised entirely of white people, and Mr. Johnson argues counsel acted deficiently in failing to object to the jury composition “[i]n light of the [G]overnment's theory of the case, that Movant sought out, and only used, white females to commit the crimes for which he was on trial.” Id.

         The Government disputes the validity of Mr. Johnson's Batson challenge for the primary reason that he fails to establish a prima facie case of purposeful discrimination. [Dkt. 15 (Opposition) at 11-12]. The Government points out that Mr. Johnson does not cite the transcript or another document identifying the demographics of the venire or the Government's peremptory strikes. Id. at 12. Even if he were to satisfy the prima facie case, the Government contends he nonetheless fails to establish prejudice. Id. at 12.

         Batson v. Kentucky, 476 U.S. 79 (1986) created a three-step procedure for courts to determine “whether a peremptory strike has been exercised in a racially discriminatory manner.” United States v. Diaz, 176 F.3d 52, 76 (1999). First, a court must determine whether the petitioner makes out “a prima facie showing that the prosecution has exercised its peremptory strike on the basis of race.” Id. If defendant satisfies the first step, the court must then evaluate “whether the government has satisfied its burden of coming forward with a race-neutral explanation for striking the juror in question.” Id. If so, the court evaluates “whether the defendant has carried his burden of persuasion of proving purposeful discrimination.” Id.

         There are several ways in which a petitioner can make a prima facie showing of racial discrimination. A court should consider “how many members of the cognizable racial group are in the venire panel from which the petit jury is chosen, the pattern of strikes against racial group jurors in the particular venire, the prosecutor's statements and questions during selection, as well as any other relevant circumstances.” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) (addressing prima facie showing in the Powers context). “When the asserted prima facie case is based upon the use of strikes to exclude all or nearly all of the members of a particular racial group, the record need only include how many members of that group were in the venire, and how many of those were struck.” Jones v. West, 555 F.3d 90, 99 (2d Cir. 2009).

         Mr. Johnson has not provided the Court with any evidence supporting his claim. Nonetheless, the Court independently assessed the venire documents kept by the Clerk. The jury pool contained only two individuals who identified as African American. The first person was randomly assigned pool number 39, and the Court, not the Government, struck him for cause. The second person was randomly assigned pool number 64, and she was chosen as the third alternate. It is worth noting the twelfth juror was assigned pool number 49, and therefore the random nature of the jury selection process essentially made it impossible for the alternate to have been picked as a juror given she was questioned 15 people later. The Court also notes the Government used peremptory challenges on eight people, seven who were listed as White and one who was listed as Other. One chosen juror was also listed as Other. The objective evidence does not support a finding that the Government's actions were racially motivated or that Attorney Dolan acted below an objective standard of reasonableness in failing to object to petit jurors having been stricken. Neither Mr. Johnson nor the record offer any factual support for this claim and therefore a hearing is not warranted. See Strickland, 466 U.S. at 687-88.

         II. Failure to Object to Discovery

         Mr. Johnson claims the Government withheld exculpatory evidence as demonstrated by the changes in the Superseding Indictment, which reduced the number of Defendants from three to two and the number of bank fraud counts from 74 to seven. Motion at 12-13. Specifically, Mr. Johnson believes the Government withheld all discovery pertaining to Counts 9, 11, 13 and 15 of the Superseding Indictment. Id. at 13. The Government maintains that it “provided early and fulsome discovery in this case, beginning in July 2010, ” and that Mr. Johnson's characterization demonstrates a misunderstanding of the discovery process rather than any potential misconduct. Opposition at 13-14.

         In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court established the requirement to disclose all evidence that could be considered exculpatory or bearing on a defendant's innocence or guilt. The Government's obligations under Brady are well-established. The prosecution has a constitutional duty to disclose evidence favorable to an accused when such evidence is material to guilt or punishment. Id. at 87. This duty covers not only exculpatory evidence, but also information that could be used to impeach a key government witness. See Giglio v. United States, 405 U.S. 150, 154 (1972). Brady does not, however, require the prosecution to disclose all exculpatory and impeachment evidence; it need disclose only that, which “if suppressed, would deprive the defendant of a fair trial.” United States v. Bagley, 473 U.S. 667, 675 (1985). In the context of Brady, a defendant is deprived of a fair trial only where there is a reasonable probability that the government's suppression affected the outcome of the case, see Id. at 682, or where the suppressed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict, ” Kyles v. Whitley, 514 U.S. 419, 435 (1995).

         Mr. Johnson has failed to identify any evidence withheld by the Government, much less any evidence that would have changed the outcome of the trial and the withholding of which thus deprived him of a fair trial. It appears as if the evidence Mr. Johnson challenges was not even “favorable to the accused” as his position is the Government “failed to disclose any discovery whatsoever to support its inclusion of Counts 9, 11, 13, and 15 of the Superseding Indictment.” Motion at 13. The Government avers that it timely disclosed all discovery beginning in June 2010, which relate to the Superseding Indictment filed October 2011. Opposition at 13. The filing of a Superseding Indictment, which reduced the total number of counts and adjusted the nature of the counts, does not inherently mean discovery was withheld. Mr. Johnson has not met his burden to establish deficient performance because he has not alleged any facts demonstrating how the absence of an objection on these grounds means counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88; Lewis v. Feliciano, No. 3:09cv20171 (DJS), 2012 WL 1247264, at *9 (D. Conn. Apr. 13, 2014) (stating that “[a]bsent any indication as to what the witnesses would have stated or what the evidence would have shown, Lewis failed to meet [his] burden” of demonstrating deficient performance on Brady grounds). Therefore, the Court need not address the prejudice prong.

         III. Failure to File Motion to Sever

         Mr. Johnson criticizes defense counsel's failure to sever his case from that of his co-defendant, Michael Jones. Attorney Dolan filed a motion to sever on September 1, 2011, which asserted that co-defendant Williams intended to argue that Johnson coerced Williams to participate in the criminal conduct. Williams [Dkt. 98.] Attorney Dolan argued Williams' defense would prejudice Johnson and accordingly Johnson's trial must be severed from Williams'. Id. Because Williams ultimately pleaded guilty, the Court found the motion to sever moot. Williams [Dkt. 113.] Johnson asserts “it was unreasonable for counsel to have proceeded to cause the court to moot the motion for severance” because it was “based on facts whereby relief could have been granted.” Motion at 14. The Government notes Attorney Dolan's motion to sever from Williams and the Court's subsequent mooting of that issue, and also asserts that there was no basis to sever Johnson's case from co-defendant Jones'. Opposition at 15. The Government notes that the critical question for severance is whether a joint trial prejudiced the movant and Mr. Johnson failed to identify any basis for a finding of prejudice. Opposition at 16.

         Rule 14 of the Federal Rules of Criminal Procedure provides that “[i]f the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). There is a clear preference for a joint trial where “the defendants are alleged to have participated in a common plan or scheme.” United States v. Fazio, 770 F.3d 160, 166 (2d Cir. 2014) (citing United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998)). A court is to sever defendants “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” United States v. Astra Motor Cars, 352 F.Supp.2d 367, 369-70 (E.D.N.Y. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). Such a determination is left to the sound discretion of the court. Zafiro v. United States, 506 U.S. at 539.

         Mr. Johnson has not presented the Court with any evidence that he was denied a fair trial. After reviewing the trial transcripts, the Court finds that Defendants participated in a “common scheme or plan, ” Fazio, 770 F.3d at 166. Paragraph 12 of the Presentence Report was replete with summaries of the testimony introduced at trial establishing their conspiratorial conduct. Counsel did not act unreasonably when he did not move for reconsideration of the Court's finding that the motion to sever was mooted by Williams' change of plea, nor did counsel act unreasonably by failing to move to sever from co-defendant Jones. Attorney Dolan did not act unreasonably in light of the facts of the case, his understanding of prevailing case law, and the unlikelihood that a motion to reconsider the motion to sever from Williams, or a motion to sever from Jones, would have been granted. See id.

         IV. Failure to Sequester Special Agent Mahar

         Mr. Johnson believes defense counsel was ineffective in failing to demand Special Agent Ryan Mahar be sequestered from the trial. Motion at 15. He argues Agent Mahar participated in the investigation and “[p]rejudice resulted when the agent controlled the flow of evidence for the prosecution, in such a manner so as to actually prosecute the case, thus denying Movant of a fair trial.” Id. The Government does not dispute Agent Mahar's presence during trial but contends that such presence is permitted by the Federal Rules of Evidence and case law. Opposition at 17.

         Rule 615 of the Federal Rules of Evidence requires a court to sequester a witness upon a party's request or on its own “so that they cannot hear other witnesses' testimony.” One exception to this rule applies where “an officer or employee of a party that is not a natural person [is] designated as the party's representative by its attorney.” Fed.R.Evid. 615(b). In keeping with this rule, a “district court has discretion to exempt the government's chief investigative agent from sequestration, and it is well settled that such an exemption is proper under Rule 615[b], deeming the agent-witness a ‘representative' of the government.” United States v. Lee, 834 F.3d 145, 162 (2d Cir. 2016) (internal quotation marks and citations omitted); see Griffith v. United States, No. 03 Civ. 7860(HB), 03 Civ. 7861(HB), 2005 WL 245071, at *6 (S.D.N.Y. Oct. 6, 2005) (“In light of such well-settled precedent [establishing the court's discretion] it is reasonable for the Griffiths' counsel not to have objected to the agent's presence in the courtroom.”). Therefore, defense counsel was not deficient for failing to request sequestration because Agent Mahar would have fit within the ambit of the Rule 615(b) exception. See United States v. Lott, 365 F. App'x 946, 950 (10th Cir. 2010) (ruling defense counsel's failure to seek sequestration of government's case agent did not constitute ineffective assistance of counsel because the witness would have fallen within a Rule 615 exception). Mr. Johnson fails to provide a legal or factual basis that warrants a finding of deficiency or prejudice.

         V. Failure to Object to Special Agent's Expert Testimony and the Lack of Foundation

         Mr. Johnson bases this next ineffective assistance of counsel claim on defense counsel's failure to object to the foundation laid for Agent Mahar to testify as an expert and his subsequent testimony. Motion at 17. Agent Mahar's classification as an expert and associated testimony purportedly “served no purpose but to bolster the credibility of the witnesses whose credibility is/was questionable at best.” Id. at 18. The Government argues that it laid a proper foundation for Agent Mahar's testimony as an expert and that his testimony in multiple capacities was permissible. Opposition at 18.

         With respect to the foundation issue, the Government established that Agent Mahar holds a Bachelor's degree from the University of Nashville, Tennessee and that he became a forensic examiner for the United States Secret Service in 2006. [Dkt. 267 (Tr. 11/14/11) at 225:17-226:2]. He received approximately 140 hours of special training in cell phone forensics, which has taught him how to recover digital evidence from various devices. Id. at 226:3-11. In total, he has analyzed over 50 cell phones. Id. at 226:12-14. He had previously been qualified as an expert in cell phone forensics in Connecticut state court. Id. at 226:21-25. After discussing the nature of the expert testimony at side bar, neither defense counsel for Mr. Johnson nor defense counsel for Mr. Jones objected to his determination as expert. See Id. at 227:3-20. Mr. Johnson has not brought forth any factual evidence or a legal basis indicating the Agent Mahar is not “qualified as an expert by knowledge, skill, experience, training or education. . . .” Fed.R.Evid. 702. The Court finds the Government sufficiently laid a foundation for Agent Mahar to testify as an expert and that Attorney Dolan's performance did not fall below prevailing professional norms in abstaining from objection. See Harrington, 562 U.S. at 105.

         Mr. Johnson's contention that his qualification as an expert bolstered his lay witness testimony requires a closer analysis, but ultimately it does not prevail. In certain circumstances, a case agent's testimony as an expert carries some risks of juror confusion, see Fed. R. Evid. 403, because “[s]ome jurors will find it difficult to discern whether the witness is relying properly on his general experience and reliable methodology, or improperly on what he has learned of the case.” United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003). Accordingly, there exists a risk that a case agent testifying about both an expert opinion and the facts of the case “may easily elide these two aspects of their testimony.” Id. at 55-56. Indeed, “[g]iven their role, their perspective, and their focus on the facts, these case agent experts are more likely to stray from the scope of their expertise and to testify about other aspects of the case, including the divulging of hearsay evidence.” Id. at 55-56.

         Here, the potential for juror confusion was minimal because the Government questioned Agent Mahar on a very narrow set of issues; he testified almost exclusively to the summarization of certified records and the content of documents that were submitted into evidence. See generally [Dkt. 267 at 206:15-242:11; Dkt. 268 at 6:11-24:24]. Agent Mahar did not provide hearsay evidence or stray from the scope of his expertise. Id. Mr. Johnson fails to demonstrate how counsel's failure to object would be deficient, let alone prejudicial, to his case.

         VI. Failure to Object to Evidence at Trial

         Mr. Johnson lists in four groups several exhibits that were introduced without objection and contends that the failure to object constituted ineffective assistance of counsel. Motion at 18. He does not identify the objections that could have been made or establish why the failure to object would have been deficient.

         First, Mr. Johnson argues Attorney Dolan was ineffective for allowing the Government's Exhibit 301 to be admitted and to subsequently be amended. See [Dkt. 1-1 at 18]. This exhibit is a summary chart of Exhibits 1-100 and was admissible pursuant to Fed.R.Evid. 1006, which enables a proponent to “use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Because the Court admitted the documents pursuant to Fed.R.Evid. 1006, see [Dkt. 260 (Tr. 11/2/11) at 3:7-23], and the underlying documents were admitted as exhibits as well, Mr. Johnson has not shown how, if at all, the summary charts failed to reflect accurately the underlying exhibits. Consequently, he has failed to show how Attorney Dolan acted below his objective standard of reasonableness in failing to object to the introduction of unobjectionable exhibits which merely summarized voluminous admissible exhibits. See Strickland, 466 U.S. at 687-88. There is no basis for the Court to conclude that Attorney Dolan performed deficiently by allowing the summary chart to be amended as trial continued. The revisions certainly did not amount to anything serious enough to undermine the outcome of trial. See Strickland, 466 U.S. at 964.

         Second, Mr. Johnson contends that Exhibits 23-A-1, 23-B-1, 24-A-1, 24-B-1, 25-A-1, 25-B-1, 26-B-1, 27-A-1, and 27-B-1 should not have been introduced as they were notes referred to by witness Marie Martin. See [Dkt. 1-1 at 18]. At the beginning of the direct examination, the Government handed Ms. Martin a binder of Exhibits 23 through 28, see [Dkt. 261 (Tr. 11/3/11) at 38:2-10], and the record reflects these exhibits were copies of checks, not notes, see Id. at 38:2-40:19]. In addition, Ms. Martin brought copies of returned checks “along with the reason . . . that it was returned . . . from a second bank.” See [Dkt. 261 at 46:4-13]. Ms. Martin testified that the check “is the same as . . . the original check when it was negotiated” but “[i]t's before we knew it was going to return.” Id. She also testified, “When it's returned it looks the same but they just put a return reason.” Id. These documents were admitted under the business records exception as the Government established they were version of other exhibits created by the employee with knowledge near the time of the transaction, they were kept in the ordinary course of business, and they were made as a regular practice of that activity. See Fed. R. Evid. 803(6)(A)-(C); see [Dkt. 261 at 38:3-65:1; 47:15-48-14]. The fact that there is a stated reason for the return does not mean the documents were not admissible. The record indicates defense counsel possessed these documents prior to the trial, and defense counsel's copies were submitted into evidence. Id. at 49:18-50:7. Attorney Dolan did not act deficiently because these documents were admissible.[1]

         Third, Mr. Johnson challenges Attorney Dolan's stipulation to Exhibits 140A-C and 154A-C. See [Dkt. 1-1 at 19]. Witness Susan McGregor testified that Exhibits 140A-C were her driver's license, debit card, and a check made out in her name. See [Dkt. 264 (Tr. 11/8/11) at 54:3-24]. Witness Mary Willingham testified that Exhibits 154A-C were her driver's license, credit card, and military identification. See Id. at 48:21-49:9]. The parties stipulated to the admissibility of Exhibits 140A-C and 154A-C, which were “similar to exhibits previously stipulated for admission as full exhibits.” Id. at 56:12-23. Regardless, these documents were relevant, authenticated by their owners in a manner sufficient to support a finding that each was what its proponent claimed it was and were thus admissible. See Fed. R. Evid. §§ 401, 402 and 901(a).

         Further, Federal Rule of Civil Procedure 11 precludes an attorney from making specious objections. Specifically, that rule states:

By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

Fed R. Civ. Pl 11(b)(1)-(2). Jones fails to offer any factual or legal basis to challenge the admissibility of these documents. Having no basis to challenge the documents, Attorney Dolan acted as a reasonable attorney in stipulating to the admission.

         Fourth, Mr. Johnson claims that Exhibits 14, 23, 52, and 96 should not have been admitted because they supported Counts 9, 11, 13, and 15 and had never been disclosed to him prior to trial. See [Dkt. 1-1 at 19]. These exhibits were checks submitted into evidence, which were also featured in the summary chart. Attorney Dolan did not perform below an objective standard of reasonableness for the same reasons as the above exhibits pertaining to Ms. Martin's testimony. See Dkt. 260 at 61:9-62:14 (admitting Exhibit 96 as a business record); Dkt. 261 at 38:3-40:14, 67:1-69:20, 127:24-129:19 (admitting Exhibits 14, 23, and 52 as a business record)]. Assuming Mr. Johnson did not have the opportunity to review these documents prior to trial, these checks were just four of the 100 checks submitted into evidence and would not have “undermine[d] confidence in the outcome.” See Strickland, 466 U.S. at 694. Accordingly, this ineffective assistance of counsel claim fails.

         VII. Failure to Advise of Right to Testify

         It is Mr. Johnson's position that Attorney Dolan failed to advise him of his right to testify. Motion at 19-21. Specifically, Mr. Johnson claims that “counsel knew [he] wanted to testify and tell his side of the story regarding the offense” and that “counsel knew that Movant only proceeded to a jury trial whereas he could testify regarding loss amounts attributed to him. . . .” Id. at 20. The Government objects to Mr. Johnson's claim on two key bases: (1) Attorney Dolan's affidavit, which conflicts with Mr. Johnson's affidavit, demonstrates that Attorney Dolan advised Mr. Johnson about his right to choose to testify; and (2) Mr. Johnson cannot show prejudice because he only wanted to testify to the loss amount and the Government would have questioned him on his lengthy criminal record, which undoubtedly would have seriously undermined his credibility and thus been damaging to his case. Opposition at 23-24; [Dkt. 15-1 (Dolan Affidavit) at ¶ 8].

         It is well-settled that a criminal defendant “has the right to take the witness stand and to testify in his or her own defense.” Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011) (quoting Rock v. Arkansas, 483 U.S. 44, 49 (1987)). The decision to testify is solely for the defendant to make, and defense counsel is tasked with the responsibility to “advis[e] the defendant of his right to testify or not to testify.” Id. Included in counsel's duty is to “advise the defendant about the benefits and hazards of testifying and not testifying, ” and although counsel is permitted to “strongly advise the course that counsel thinks best” he must leave the ultimate decision to the defendant. Id.

         Attorney Dolan submitted an affidavit indicating he believes Mr. Johnson should not testify due in part because of his extensive criminal history. Dolan Affidavit at ¶ 8. Attorney Dolan averred that Mr. Johnson ultimately decided “not to testify.” Id. at ΒΆ 9. This affidavit directly conflicts with Mr. Johnson's declaration wherein he claims Attorney Dolan prevented him ...

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