Johnson v. United States

1

Latoya Leonardine Johnson, Movant/Defendant v. United States of America, Respondent/Plaintiff.

Nos. CV-23-0054-PHX-DGC (JFM), CR-17-1354-PHX-DGC

United States District Court, D. Arizona

October 23, 2023

REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

James F. Metcalf United States Magistrate Judge

I. MATTER UNDER CONSIDERATION

Movant following her conviction in the United States District Court for the District of Arizona, filed a Third Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C § 2255 (Doc. 11). Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

Movant's Plea Agreement includes the following statement of factual basis:

On or about September 23, 2017, in the District of Arizona, within the confines of the Tohono O'odham Indian Reservation, Indian Country, the defendant, Latoya Leonardine Johnson, unlawfully killed the victim, John Doe, with malice aforethought. Specifically, the defendant walked the victim out into the desert and beat him with a wooden object, resulting in his death.

At the time of the offense, the defendant had some quantum of Indian blood and was a member of or affiliated with the Tohono O'odham Indian Reservation, a federally recognized tribe.

(CR Doc. 78, Plea Agreement at 7.)

B. PROCEEDINGS AT TRIAL

Movant was indicted in the District of Arizona on charges of: (1) child abuse; (2) kidnapping; (3) first degree felony murder; and (4) first degree murder. (CR Doc. 1, Indictment.) The child abuse charges and various enhancements were based on the victim being under the age of 14.

Counsel was appointed for Movant, and following a competency hearing, Movant was committed for restoration of competency. (CR Doc. 42, Order 5/22/18,) Movant was subsequently found competent to stand trial. (CR Doc. 65, M.E. 12/7/18.)

Movant then entered into a written Plea Agreement (CR Doc. 78) in which Movant agreed to plead guilty to second degree murder, a less included offense of Count 4 (first degree murder) of the Indictment, in exchange for inter alia the dismissal of the other charges and a stipulated sentence of 35 years in prison. (Id. at ¶¶ 1, 3(a), 4(a).) The Plea Agreement included a waiver of various rights, including “any right to file.. .any collateral attack...that challenges the conviction.. .the entry of judgment against the defendant, or any aspect of the defendant's sentence.. .including but not limited to.. .motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions).” (Id. at ¶ 6.) On January 23, 2019, Movant entered her guilty plea pursuant to the Plea Agreement. (CR Doc. 68, M.E. 1/23/19; CR Doc. 70, RR re Plea.)

On May 9, 2019 the plea was accepted, and Movant was sentenced to 420 months (i.e. 35 years) in prison. (CR Doc. 77, M.E. 5/9/19; CR Doc. 79 Judgment.)

C. PROCEEDINGS ON DIRECT APPEAL

Movant did not file a direct appeal. (Motion, Doc. 11 at 2.)

D. PRESENT FEDERAL HABEAS PROCEEDINGS

Motion - Movant, presently incarcerated in the Federal Medical Center in Fort Worth, Texas, Arizona, commenced the current case by filing her original Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on January 9, 2023 (Doc. 1). That Motion to Vacate, and subsequently a First Amended (Doc. 4) and Second Amended (Doc. 6) Motion to Vacate were dismissed with leave to amend. (Orders 1/18/23, Doc. 3; 2/3/23, Doc. 5; and 3/10/23, Doc. 8.) Movant filed the instant Third Amended Motion to Vacate (Doc. 11) on March 28, 2023.

In Ground One, she alleges that she is serving a sentence in prison for the first time and does not know why she is in prison. Movant further alleges that she did not know why she was brought to court and that she did not know what was taking place. She also alleges that she did not understand her right to a trial and that her attorney did not take the case to trial.

In Ground Two, Movant alleges that she did not understand any of the court proceedings or what people were saying to her.

In Ground Three, Movant claims that she did not do “it” and did not know what “they” were talking about. She also asserts there was a lack of evidence, presumably to support her conviction and/or sentence.

In Ground Four, Movant states, “no motive,” and alleges that she was in jail at the time of the offense.

The Court construes Movant's grounds for relief as asserting that she is actually innocent of her crime of conviction, that her conviction and/or sentence violated due process because they were not supported by sufficient evidence, and that her guilty plea was not knowing, intelligent, and voluntary.

(Order 6/29/23, Doc. 12 at 2.)

Response - On August 22, 2023, Respondent filed its Response (Doc. 16), arguing that as part of her plea agreement Movant waived her right to file the instant proceeding and thus is barred from bringing it. Respondents further argue Movant's claims are without merit, including her assertion that her plea was not knowing, intelligent and voluntary.^[1]

Reply - On September 11, 2023, Movant filed a Reply (Doc. 18). Movant argues she did not admit to the crime in Count 4, her plea was involuntary, and that she is innocent, and should be sentenced to only 10 years.

III. APPLICATION OF LAW TO FACTS

Respondents argue that Movant has waived her right to file the instant Motion to Vacate. Movant's plea agreement included a waiver of “any right to file.. .any collateral attack...that challenges the conviction.. .the entry of judgment against the defendant, or any aspect of the defendant's sentence.. .including but not limited to.. .motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions).” (CR Doc. 78, Plea Agreement at ¶ 6.) The present Motion to Vacate is just such a collateral attack.

Enforceability of Waivers - The Ninth Circuit regularly enforces "knowing and voluntary" waivers of appellate rights in criminal cases, provided that the waivers are part of negotiated guilty pleas, see United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994), subject to limited exceptions not applicable here, see United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (identifying Rule 11 violation, contrary advice by judge on waiver, sentence outside agreement, and illegal sentence). Similarly, the right to collateral review may be waived. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993). Such waivers usefully preserve the finality of judgments and sentences imposed pursuant to valid plea agreements. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996). Moreover, the defendant's rights to challenge any sentencing errors may be explicitly waived. See e.g. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). Further, where a waiver specifically includes the waiver of the right to attack a sentence, then it also waives “the right to argue ineffective assistance of counsel at sentencing.” U.S. v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000). Granted, there are some flavors of errors at sentencing that are not waivable. See e.g. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) (sentence violates the terms of the plea agreement); United States v. Johnson, 67 F.3d 200, 203 n. 6 (9th Cir.1995) ("sentencing error could be entirely unforeseeable and therefore not barred"); United States v. Jacobson, 15 F.3d 19 (2^nd Cir.1994) (sentencing disparity among co defendants based entirely on race); United States v. Marin, 961 F .2d 493, 496 (4th Cir.1992) (sentence in excess of maximum statutory penalty or based on a constitutionally impermissible factor such as race). Here, however, Movant does not assert any such error at sentencing.

Knowing and Voluntary Requirement - It is true that to be enforceable, such waivers must be made “knowingly and voluntarily.” United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994).

To be sure, Movant asserts her plea was not knowingly and voluntarily made. However, the Supreme Court has held that where “a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases....[A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective].” Hill v. Lockhart, 474 U.S. 52, 5657 (1985) (internal quotation marks and citations omitted).

Here, Movant makes no assertion that her counsel was ineffective in advising her on her plea. Accordingly, she fails to show her plea was not knowingly and voluntarily made.^[2]

No Facts to Support Claim of Deficient Performance - Even if this Court could somehow liberally construe Movant's allegations as claims of ineffective assistance in advising her on her plea, such claims would be without merit.

To establish a claim of ineffective assistance of counsel with respect to a guilty plea, Movant bears the burden of establishing both: (1) that her attorney's performance was deficient, i.e. it fell below an objective standard of reasonableness; and (2) prejudice: that absent her attorney's incompetence, Movant would rationally have rejected the plea agreement and would either have gone to trial or received a better plea bargain. United States v. Rodriguez, 49 F.4th 1205, 1213 (9th Cir. 2022).

In making these determinations, Movant's...