United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING PETITION FOR RELIEF
UNDER 28 U.S.C. § 2255 [DKT. 1]
Vanessa L. Bryant, United States District Judge.
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.
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.]
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.]
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)].
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).]
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).
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.
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.
Failure to Raise a Batson Challenge
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.”
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.
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.”
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
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.
Failure to Object to Discovery
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.
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,
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.
Failure to File Motion to Sever
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.
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.
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.
Failure to Sequester Special Agent Mahar
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.
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
Failure to Object to Special Agent's Expert Testimony
and the Lack of Foundation
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.
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.
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.
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.
Failure to Object to Evidence at Trial
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
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.
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
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).
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
(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.
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
Failure to Advise of Right to Testify
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].
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.
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 ¶ 9. This
affidavit directly conflicts with Mr. Johnson's
declaration wherein he claims Attorney Dolan prevented him