United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING AMENDED PETITION FOR
RELIEF UNDER 28 U.S.C. § 2255 [ECF NO. 56]
Vanessa L. Bryant United States District Judge.
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]. 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.
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].
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
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].
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].
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.
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].
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].
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].
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].
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.
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)).
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].
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].
noted, the one-year limitation period mandated by 28 U.S.C.
§ 2255(f)(1) expired on April 23, 2016.
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].
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 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 (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
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."
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.
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).
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)).
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.
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)).
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,
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 ...