Johnson v. United States

          MEMORANDUM OF DECISION DENYING AMENDED PETITION FOR RELIEF UNDER 28 U.S.C. § 2255 [ECF NO. 56]

          Hon. Vanessa L. Bryant United States District Judge.

         Petitioner Anthony Johnson ("Mr. Johnson" or "Petitioner") brings this pro se petition for habeas relief under 28 U.S.C. § 2255, asserting seven ineffective assistance of counsel claims against his counsel who represented him prior to trial, at trial, during sentencing, and on appeal. [ECF No. 56].^[1] Mr. Johnson also asserts claims that his indictment was defective and that during sentencing he was accused of and convicted of a crime without proper due process safeguards. Id. For the foregoing reasons, Mr. Johnson's Motion to Vacate, Set Aside, or Correct Sentence is DENIED.

         Background

         On November 15, 2011, the Honorable Holly B. Fitzsimmons, United States Magistrate Judge, authorized a criminal complaint charging Mr. Johnson with conspiracy to commit fraud with access devices in violation of 18 U.S.C. § 1029(a)(2). United States v. Johnson, 3:12-cr-00027, [ECF No. 1]. On November 16, 2011, Mr. Johnson was arrested in the Eastern District of Pennsylvania. On December 9, 2011, following his transport to the District of Connecticut, Mr. Johnson appeared before Magistrate Judge Fitzsimmons, and Judge Fitzsimmons ordered Mr. Johnson detained pending a formal detention hearing on January 12, 2012. Id. [ECF No.6]. The day of his initial appearance, the Court appointed Attorney Margaret Levy to represent Mr. Johnson. Id. [ECF Nos. 6, 25].

         On January 6, 2012, Attorney Levy, on Mr. Johnson's behalf, moved to continue the probable cause hearing until February 1, 2012. Id. [ECF No. 9]. On January 7, 2012, Mr. Johnson filed a speedy trial waiver in support of that motion. Id. [ECF Nos. 11, 12]. On January 9, 2012, Magistrate Judge Fitzsimmons granted the motion and continued the probable cause hearing until February 1, 2012. Id. [ECF No. 10]. During the month of January, Attorney Levy attempted to negotiate a plea agreement with the Government, but those negotiations did not come to fruition. Id. [ECF No. 16 at 2-5 (detailing plea negotiations)].

         On January 31, 2012, a federal grand jury returned an indictment against Mr. Johnson. Id. [ECF No. 13]. The indictment charged Mr. Johnson with one count of unauthorized use of an access device, in violation of 18 U.S.C. §§ 1029(a)(2) and (c)(1)(a)(i), and one count of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A and 2. Id. On February 3, 2012, Attorney Levy filed a motion to withdraw her appearance, citing Mr. Johnson's repeated accusations that Attorney Levy was "violating [his] constitutional rights" and that she was "in conspiracy with . . . the government, the court, and the U.S. Marshal's Service." Id. [ECF No. 16]. On February 8, 2012, Mr. Johnson, still represented by Attorney Levy, was arraigned on the charges set forth in the indictment. Id. [ECF No. 17]. On February 17, 2012, this Court held a hearing on Attorney Levy's motion to withdraw in which Mr. Johnson argued that Attorney Levy had violated his rights by not obtaining certain discovery materials from the Government. Id. [ECF No. 85 at 1]. Finding that Mr. Johnson had "failed to establish that Attorney Levy had violated his rights," the Court granted Attorney Levy's motion to withdraw and appointed Attorney Frank J. Riccio II to represent Mr. Johnson. Id. [ECF Nos. 26, 85 at 1].

         A superseding indictment was returned on March 27, 2012 against Mr. Johnson and two others, Lashirelle Bryant and Jamie McGowan. Id. [ECF No. 36]. The superseding indictment charged Mr. Johnson in ten counts: eight counts of unauthorized use of an access device, in violation of 18 U.S.C. §§ 1029(a)(2), 1029(c)(1)(a)(i), and 2; and two counts of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A and 2. Id. [ECF No. 36]. On April 10, 2012, Mr. Johnson was arraigned on the charges set forth in the superseding indictment, pleading not guilty to all counts. Id. [ECF No. 41].

         On June 19, 2012, Attorney Riccio filed a motion to withdraw from representing Mr. Johnson, citing an "irretrievable breakdown in the relationship between Mr. Johnson and [Attorney Riccio]" and Mr. Johnson's filing of an attorney grievance complaint against Attorney Riccio with the State of Connecticut Statewide Grievance Committee because Mr. Johnson believed that Attorney Riccio "forced" Mr. Johnson to waive his speedy trial rights. Id. [ECF No. 76]. The Court held that Attorney Riccio's representation was effective, Mr. Johnson's claim was "specious" and that "his grievance can only be viewed as an effort to create a conflict and delay the trial," but denied Attorney Riccio's motion to withdraw without prejudice to re-filing should Mr. Johnson not "reconcile himself to Attorney Riccio's representation." Id. [ECF No. 85 at 4-5]. At jury selection on July 16, 2012, Mr. Johnson moved to continue jury selection and moved to remove Attorney Riccio. Id. [ECF No. 98 at 1-2]. After being advised by the Court about the challenges of proceeding pro se, Mr. Johnson agreed to proceed with his appointed counsel and also agreed to sign a speedy trial waiver. Id. at 2. Jury selection was set for October 2, 2012. Id. [ECF No. 107].

         Mr. Johnson again moved to have Attorney Riccio removed from his case on September 5, 2012, accusing Attorney Riccio of "acting in concert" with the Government to violate Mr. Johnson's rights. Id. [ECF No. 108]. The next day the Court granted the motion but ordered Attorney Riccio to serve as stand-by counsel for Mr. Johnson. Id. [ECF No. 110].

         Jury selection was completed on October 2, 2012. Id. [ECF Nos. 113, 114]. During jury selection, Mr. Johnson moved to have the Court recuse itself, id. [ECF No. 112], which the court denied. Id. [ECF No. 115]. The Court also reappointed Attorney Riccio to represent Mr. Johnson. Id. [ECF No. 114]. Trial commenced on October 16, 2012. Id. [ECF Nos. 121, 124]. On October 18, 2012, Mr. Johnson moved to dismiss Count Two, id. [ECF No. 126], which the court granted, dismissing Count Two. Id. [ECF No. 127]. Trial ended on October 22, 2012 with the jury's verdict of guilty on nine of the ten counts on October 22, 2012. Id. [ECF Nos. 129, 132].

         On January 8, 2013, Mr. Johnson moved once again to have Attorney Riccio removed as his counsel, citing Attorney Riccio's alleged conspiring with the Court and the Government to "oppress[, ] threat[en], and intimidate the Defendant." Id. [ECF No. 167 at 1]. On February 11, 2013 Attorney Riccio moved to withdraw, citing two January 2013 federal grievance complaints filed by Mr. Johnson accusing Attorney Riccio of, inter alia, being a "double agent" for the Government and for being involved in a "far-reaching scheme involving the Government and the Court." Id. [ECF No. 174 at 1]. On June 19, 2013 the Court granted Attorney Riccio's motion to withdraw. Id. [ECF No. 183]. On June 27, 2013 the court appointed Attorney Jonathan Einhorn to represent Mr. Johnson. Id. [ECF Nos. 187, 188].

         On October 24, 2013, at sentencing, the Court imposed sentence on eight counts of conviction, dismissing Count 6 with the Government's consent. Id. [ECF Nos. 230, 232]. The Court, despite Mr. Johnson's guideline range being 360 months to life, imposed a "non-guideline sentence" of 192 months of imprisonment. Id. [ECF No. 232].

         On October 28, 2013, Mr. Johnson filed a timely notice of appeal. Id. [ECF No. 233]. On January 23, 2015, the Second Circuit, via Summary Order, affirmed Mr. Johnson's conviction and sentence, rejecting Mr. Johnson's arguments regarding (1) Speedy Trial violations, (2) the Court's failure to warn him about the dangers of proceeding to trial pro se, (3) the PSR's allegedly improper sentence enhancements, (4) the two-level sentencing enhancement for obstruction of justice caused by Mr. Johnson's attempt to have co-defendant Jamie McGowan testify that it was someone else, and not Mr. Johnson, that was involved in the crimes, (5) the calculation of loss amount, (6) prosecutorial misconduct, and (7) the Court's alleged constructive amendment of the superseding indictment. United States v. Johnson, 597 Fed.Appx. 8 (2d Cir. 2015).

         Mr. Johnson did not file a Petition for a Writ of Certiorari with the United States Supreme Court. Because of that, and because United States Supreme Court Rule 13(1) requires that such petitions be filed within 90 days, Mr. Johnson's conviction and sentence became final on April 23, 2015. Rosa v. United States, 785 F.3d 856, 859 (2d Cir. 2015) ("finality attaches when ... the time for filing a certiorari petition expires" when petitioner has not filed an appeal) (quoting Clay v. United States, 537 U.S. 522, 527 (2003)).

         Thereafter, Mr. Johnson timely filed a habeas petition before the Court. This was because 28 U.S.C. § 2255(f)(1) sets a one-year limitations period from the date the judgment of conviction becomes final, which in this case was on April 23, 2016, and Mr. Johnson filed his original petition on February 17, 2016. [ECF No. 1].

         Mr. Johnson's original petition raised four claims: (1) the Government knowingly presented false testimony of two cooperating witnesses; (2) the case agent, who also testified, was not sequestered; (3) the Government committed a Brady violation because it failed to turn over discovery regarding the loss amount attributed to Mr. Johnson, which would have been helpful to his case; and (4) the Government altered the charging document by presenting evidence that the credit card Johnson stole from a victim was issued by Citizen's Bank not Citibank as referenced in Count Two of the Superseding Indictment, thereby (a) "broadening the possible bases for conviction from that which appeared in the indictment" and (b) causing the district court to err in calculating the loss amount. [ECF No. 1 at 15].

         As noted, the one-year limitation period mandated by 28 U.S.C. § 2255(f)(1) expired on April 23, 2016.

         On November 28, 2016, Mr. Johnson filed a Motion for Leave to Amend his original petition, noting that the government had yet to file a response to the original petition, and stating that while he needed to sufficiently plead the appropriate facts, which the original petition did not do, he d[id] not intend to change or alter any of the Issues or contentions set forth in the" original petition. [ECF No. 16]. After the Court granted Mr. Johnson's motion to amend on December 1, 2016, [ECF No. 17], Mr. Johnson filed an amended, 11-page, petition on December 27, 2016, [ECF No. 18], and then filed a corrected, 36-page, version on January 10, 2017. [ECF No. 19].

         The corrected, amended petition raised the following claims: (1) Speedy Trial Act violations for not bringing Mr. Johnson to trial in the specified time and not indicting Mr. Johnson within 30 days of being charged in the complaint, (2) ineffective assistance of counsel for failing to move for dismissal based on the above alleged Speedy Trial Act violations, (3) ineffective assistance of counsel for failing to move for a Wade^[2] hearing to challenge the Government's improper identification techniques, (4) improper court participation in Mr. Johnson's plea process, (5) loss calculation violation under Alleyne^[3] (6) ineffective assistance of counsel for failing to object to the Court's loss calculations, (7) ineffective assistance of appellate counsel for failing to raise ineffective assistance of trial counsel on direct appeal. Id.

         On February 16, 2018, Mr. Johnson moved to amend his petition yet again, [ECF No. 27], adding claims that the Government brought a victim - Deborah Jorgenson - to the trial that was not a charged victim in any of the substantive counts, thereby creating a variance in the superseding indictment and allowing him to be convicted of a charge never brought by the grand jury; and (6) appellate counsel was ineffective for not raising the claim about Deborah Jorgenson on appeal." Id.

         On August 13, 2019, Mr. Johnson filed an amended motion to Vacate, Set Aside or Correct Sentence, which is the petition sub judice. Mr. Johnson raises the following claims of ineffective assistance of counsel: (1) trial counsel's failure to seek dismissal based on speedy trial violations before trial waived his right to pursue the claim on appeal; (2) trial counsel's failure to "file for dismissal based on Brady Violations During Pre-Trial"; (3) sentencing counsel's failure to challenge loss amount attributed to Mr. Johnson, which resulted in "an 18 level enhancement under the Guidelines"; (4) sentencing counsel's failure to object to the Court's failure to notify petitioner that his conviction for aggravated identity theft could result in consecutive sentences; (5) sentencing counsel's failure to object to his sentence, which was outside the proper range, (6) appellate counsel's failure to raise "several meritorious issues in favor of weaker ones," (7) trial counsel failure to seek a Wade hearing to challenge Mr. Johnson's in-court identification by one witness, and (8) sentencing counsel's failure to object to the Court's sentencing Mr. Johnson based on conspiracy, which was not charged in the superseding indictment. Mr. Johnson also raises new claims that (1) the superseding indictment should be dismissed because it failed to name the actual victims of Petitioner's crimes, and (2) using his alleged obstruction of justice to adjust his sentence effectively convicted him of that crime without due process. Finally, Mr. Johnson re-raises his claim about witness Jorgenson.

         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 to rectify three irregularities, namely "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). The strictness of this standard embodies the recognition that collateral attack upon criminal convictions is "in tension with society's strong interest in [their] finality." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995).

         As mentioned, a Section 2255 petition must be brought within one-year of the date the underlying judgment becomes final. 28 U.S.C. § 2255(f)(1). "Section 2255(f) is subject to equitable tolling in appropriate cases." Barrett v. United States, 961 F.Supp.2d 403, 407 (D. Conn. 2013) (citing Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001)). "To equitably toll the one-year limitations period, a petitioner must show that extraordinary circumstances prevented him from filing his petition on time, and he must have acted with reasonable diligence throughout the period he seeks to toll." Id. (quoting Hizbullahankhamon, 255 F.3d at 75. "Such extraordinary circumstances have been found to exist where, inter alia, a prisoner's habeas petition was intentionally confiscated shortly before the filing deadline, a state court failed to inform a prisoner that his petition for leave to appeal was denied, or when an attorney failed to file a habeas petition on behalf of a prisoner, despite explicit directions to do so. Id. (citations omitted). Circumstances sufficient to support equitable tolling must be "rare and exceptional." Id. (quoting Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004)).

         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.

         A habeas petitioner generally may obtain review of his claims only if he has raised them at trial and on direct appeal. Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) ("In general, a claim may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review."); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) ("[F]ailure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice"). As the Second Circuit noted, "collateral review of convictions 'places a heavy burden on scarce judicial resources, may give litigants incentives to withhold claims for manipulative purposes, and may create disincentives to present claims when evidence is fresh.'" Id. (quoting Keeney v. Tamayo Reyes, 504 U.S. 1, 7 (1992)).

         For a court to review procedurally defaulted claims, the petitioner must show both "cause" for the default of each claim and "prejudice" that resulted from the alleged violation. See Ciak v. United States, 59 F.3d 296, 302 (2d Cir. 1995) (citation omitted). "Cause under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991) (emphasis in original). "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the . . . procedural rule." Id. (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

         To demonstrate prejudice, a petitioner must convince the court "that 'there is a reasonable probability' that the result of the trial would have been different" if not for the alleged error. Strickler v. Greene, 527 U.S. 263, 289 (1999) (applying the cause-and-prejudice standard to a state procedural default in a § 2254 habeas case). The question is whether, despite the error, "[the petitioner] received a fair trial, understood as a trial resulting in a verdict ...