United States v. Johnson

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT v. JACQUELINE JOHNSON DEFENDANT/PETITIONER

Case No. 2:13-CR-20041-PKH-MEF-4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

February 23, 2017

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is the Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed July 25, 2016. (Doc. 286) The United States filed its response on September 12, 2016. (Doc. 293) Petitioner did not file any reply. The matter is ready for report and recommendation.

I. Background

On June 5, 2013, Defendant/Petitioner, Jacqueline Johnson ("Johnson"), was named in a multi-defendant Indictment charging her with conspiracy to distribute methamphetamine (Count One), in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. 1) Johnson was arrested on June 11, 2013, and she appeared for arraignment on June 13, 2013, at which time she entered a not guilty plea to the Indictment. (Doc. 27) Phillip A. Moon ("Moon"), a Criminal Justice Act panel attorney, was appointed to represent Johnson. (Docs. 27, 37) Moon filed a Notice of Request for Discovery (Doc. 31) on behalf of Johnson on the same date. The government responded to Johnson's discovery request on June 28, 2013, and requested reciprocal discovery from Johnson. (Doc. 76)

After two continuances, Johnson appeared with her counsel before the Hon. P. K. Holmes, III, Chief District Judge, on December 4, 2013 for a change of plea hearing. (Doc. 107) A written plea agreement (Doc. 108) was presented to the Court, and Johnson pleaded guilty to Count One of the Indictment charging her with conspiracy to distribute methamphetamine. (Doc. 107) Upon determining that Johnson was satisfied with her counsel; having explained the possible severity of sentence and her rights; and, finding that her plea was voluntary and supported by a factual basis, the Court accepted Johnson's plea of guilty and ordered a Presentence Investigation Report ("PSR"). (Doc. 107)

An initial PSR was prepared by the United States Probation Office on March 19, 2014. (Doc. 118) On April 7, 2014, both the government and Johnson advised they had no objections to the initial PSR. (Docs. 136, 139)

On April 22, 2014, a final PSR was submitted to the Court. (Doc. 156) The final PSR determined that Johnson was accountable for 177.1875 grams of methamphetamine and, as a result, her base offense level was determined to be 26. (Doc. 156, ¶¶ 18, 23) No specific offense characteristics adjustments, victim related adjustments, role in the offense adjustments, or obstruction of justice adjustments were made, and no Chapter Four enhancements were applied. (Doc. 156, ¶¶ 24-27, 29) After a three-level reduction for acceptance of responsibility, Johnson's total offense level was determined to be 23. (Doc. 156, ¶¶ 30-32) Johnson's lengthy criminal history resulted in a total criminal history score of 14, placing her in criminal history category VI. (Doc. 156, ¶¶ 55-57) The statutory maximum term of imprisonment for the offense of conviction was 20 years. (Doc. 156, ¶ 83) Based upon a total offense level of 23 and a criminal history category of VI, Johnson's advisory guideline range was determined to be 92 to 115 months imprisonment. (Doc. 156, ¶ 84)

Johnson appeared for sentencing on June 11, 2014. (Doc. 198) The Court made inquiry that Johnson was satisfied with her counsel; the PSR was reviewed and adopted; Johnson and her counselwere afforded an opportunity to speak; and, the Court varied downward and imposed a below-guidelines sentence of 77 months imprisonment, three years supervised release, no fine, and a $100.00 special assessment. (Doc. 198) Judgment was entered by the Court on June 11, 2014. (Doc. 203) The Court's Statement of Reasons set forth the Court's view that "the guideline range was greater than necessary to comply with the purposes of sentencing, and that a sentence of 77 months is appropriate in light of the factors under 18 U.S.C. § 3553(a)." (Doc. 204, p. 3) More specifically, the Court found that because of her criminal history, the guideline range was higher than that of defendants who have been guilty of similar conduct; and, that while Johnson has a significant criminal history, it does not include any violent offenses and is mostly related to her drug addiction problems. (Id.)

Johnson did not pursue a direct appeal from the Judgment.

On February 4, 2015, Johnson filed a pro se Motion to Reduce or Correct a Sentence based on the revisions to the United States Sentencing Guidelines Amendments along with a pro se Motion to Appoint Counsel. (Docs. 229, 231) Bruce Eddy, Federal Public Defender, was appointed in connection with the motion for sentence reduction. (Doc. 230) On April 8, 2015, Johnson's appointed counsel filed an unopposed Motion to Reduce Sentence based on the United States Sentencing Guidelines Amendments. (Doc. 244) On April 14, 2015, the Court issued an Order granting in part and denying in part the Motion. (Doc. 247) The Court denied the request to reduce Johnson's sentence based on the revisions to the United States Sentencing Guidelines because Johnson's original sentence was the result of a downward variance to 77 months, and her guideline range after application of the amended guidelines was 77 to 96 months; thus, Johnson was already sentenced within the amended guideline range and the Court could not sentence her below that level.(Id.) The Court granted Johnson's request for clarification of her sentence and stated that Johnson's federal sentence was to run concurrently with her previously imposed state sentence. (Id.)

On February 8, 2016, Johnson filed a pro se Motion for Reconsideration pursuant to 18 U.S.C. § 3742(e) Post Sentencing Rehabilitation Program asking the Court to reduce her sentence based on post-sentence rehabilitation. (Doc. 274) The Court denied the Motion on May 12, 2016. (Doc. 276) On June 28, 2016, Johnson sent a letter to the Court, again requesting a sentence reduction based upon her post-sentence rehabilitation. (Doc. 283) The Court construed the letter as a motion for sentence reduction and, as set forth in its previous Order (Doc. 276) on this issue, advised Johnson that the Court cannot reduce her sentence based on post-conviction rehabilitation and denied the motion. (Doc. 284) As to Johnson's inquiry in her letter regarding how to go about challenging her sentence on the basis of ineffective assistance of counsel, the Court advised Johnson that such challenges are made pursuant to 28 U.S.C. § 2255, and it directed the Clerk to mail Johnson a form AO 243. (Id.)

On July 25, 2016, Johnson filed her pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the "motion"). (Doc. 286) The motion raises one ground for relief: "attorney misconduct" in that her counsel at sentencing "would not give [her] a copy of [her] plea or [her] appellate rights," and "he also agreed to a binding plea agreement which I was unaware of and had no idea what that even meant to the future of my case." (Doc. 286, p. 4) As to post-conviction proceedings, Johnson states she was "unaware I had that right," and "I am just now filing my 2255 per recommendation of Judge P. K. Holmes, III." (Id.) Johnson left the timeliness section of her petition blank. (Doc. 286, p. 12) Johnson failed to sign and verify her petition. (Doc. 286, p. 13)

The United States' Response to the Motion was filed on November 24, 2014. (Doc. 55) Johnson did not file a reply.

On November 28, 2016, Johnson filed yet another motion for reconsideration of the Court's denial of her request for sentence reduction based on her post-conviction rehabilitation. (Doc. 294) For the same reasons set out in the Court's earlier Orders (Docs. 276, 284), that motion was denied by Text Only Order entered on November 29, 2016.

II. Discussion

"A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). A thorough review of Johnson's motion and the files and records of this case conclusively shows that Johnson is not entitled to relief, and the undersigned recommends the denial and dismissal of her motion with prejudice without an evidentiary hearing.

A. Lack of Signature and Verification

28 U.S.C. § 2242 provides that an "[a]pplication for a writ of habeas corpus shall be inwriting signed and verified by the person for whose relief it is intended or by someone acting in his behalf." (Emphasis added.) Rule 2(b)(5), Rules Governing § 2255 Proceedings, similarly requires that the motion "be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant." Johnson did not sign and verify her § 2255 motion. (Doc. 286, p. 13)

A court may dismiss a petition that has not been signed and verified in compliance with the statutory requirements. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The United States has not raised any objection to Johnson's failure to sign and verify her motion, arguing instead...