United States v. Johnson

1

UNITED STATES OF AMERICA, v. WALTER JOHNSON, Defendant.

No. 1:96-CR-932-FB-1

United States District Court, E.D. New York

July 24, 2023

Appearances

For the United States:

BREON PEACE

United States Attorney Law

FRANCISCO J. NAVARRO

Assistant United States Attorney

For the Defendant:

JUSTIN C. BONUS

Office of Edmond R. Shinn, Esq., Ltd.

MEMORANDUM AND ORDER

FREDERIC BLOCK, Senior United States District Judge.

Walter Johnson (“Johnson”) is serving five concurrent life sentences for Hobbs Act robbery conspiracy, attempted Hobbs Act robbery, narcotics trafficking conspiracy attempted possession of narcotics with intent to distribute, and witness tampering. After hearing testimony from the primary victim of these crimes, Crystal Winslow (“Winslow”), as well as her boyfriend, JayTee Spurgeon (“Spurgeon”), a jury convicted him of these counts on December 8, 1997. Pursuant to 18 U.S.C. § 3559(c) (“Armed Career Criminal Act”), mandatory life sentences attached to three of Johnson's convictions due to his prior state convictions for second degree robbery, first degree robbery, and attempted first degree robbery.

Following an unsuccessful appeal attacking the constitutionality of the Armed Career Criminal Act (“ACCA”) and seeking to recall Winslow as a witness against him, see United States v. Johnson, 181 F.3d 83 (2d Cir. 1999), Johnson moved to vacate his convictions pursuant to 28 U.S.C. § 2255. He argued that his trial counsel was ineffective for refusing to allow him to testify and for failing to sufficiently investigate Winslow, who Johnson argued testified falsely against him. The Court denied his petition, finding that Winslow's credibility “was fully explored at trial” through vigorous cross-examination, and that Johnson's petition lacked merit. See Johnson v. United States, 2001 WL 1112028, at *1 (E.D.N.Y. Sept. 21, 2001).

In June 2016, Johnson filed a successive petition under 28 U.S.C. § 2255 arguing that the Supreme Court's decision in Johnson v. United States, 576 U.S. 591 (2015), which found that the residual clause of the ACCA defining what constitutes a violent felony was unconstitutionally vague, invalidated its application to him. Because the Court lacked jurisdiction over the successive petition without a mandate, it was moved to the Second Circuit, which stayed the motion pending further briefing on whether Johnson was entitled to relief under Johnson. In June 2020, Johnson filed a supplemental petition in the Second Circuit, adding claims of actual innocence and ineffective assistance of counsel, as well as arguments related to his age at the time of his crimes. In September of that year, the Second Circuit lifted the stay and granted Johnson's motion for leave to file a successive § 2255 petition in the district court, which he did.^[1] The Court addresses each of the four issues Johnson raises in his petition in turn.

A. Ineffective Assistance of Counsel

Johnson argues that his trial counsel was deficient because: (i) he failed to call as a witness Tamara Johnson, the defendant's sister, who purportedly would have testified that Winslow was lying; (ii) he failed to call attorney Andrew Rendeiro, who apparently met with Winslow prior to the trial and could have “provided insight into Winslow's recantation”; and (iii) he failed to use a file from Kings County Supreme Court (the “Kings County File”) that Johnson states would have shown that Winslow had hired an attorney due to concerns about perjury before a state grand jury. Petitioner's Supp. Mot. to Vacate at 16.

First, the statute of limitations for § 2255 petitions is one year from the date on which the judgment becomes final or the date on which the underlying facts supporting the claim for relief could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f)(1), (4). Johnson's convictions became final on September 8, 1999, meaning he was required to bring his ineffective assistance of counsel claims concerning his counsel's decision not to call certain witnesses by September 8, 2000. Johnson's first habeas petition, which was timely, contained ineffective assistance of counsel arguments, though on different grounds. To defeat the time bar, Johnson's ineffective assistance of counsel clams must relate back to the claims in his first petition. See Diaz v. United States, 2020 WL 3403057, at *13 (E.D.N.Y. June 19, 2020) (“[E]ven an ineffective assistance of counsel claim, when alleging a different ground for ineffective assistance, does not relate back to an earlier ineffective assistance claim.” (internal quotation marks omitted)). Johnson's claims here are based on his trial counsel's failure to call certain witnesses, which are separate from the claims in his first petition-that his counsel refused to let him testify and did not sufficiently investigate Winslow.

Johnson's claim relating to the Kings County File is also time-barred. To be timely, his petition should have been filed within a year of Johnson becoming aware of the file. See 28 U.S.C. § 2255(f)(4). In his motion, he notes that it came into his possession in 2018, but he mentions it for the first time in his supplemental petition, which he filed in June 2020.

Had Johnson's ineffective assistance of counsel claims been timely, they would nonetheless fail on the merits. Trial counsel are given wide strategic latitude to present their case, and that includes decisions about which witnesses to call to testify. See Strickland v. Washington, 466 U.S. 668, 691 (1984) (explaining that a “heavy measure of deference” is afforded to tactical decisions made by defense attorneys at trial). “[C]ounsel's decision as to ‘whether to call specific witnesses-even ones that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation.'” Id. (quoting United States v. Best, 219 F.3d 192, 201-02 (2d Cir. 2000) (denying an ineffective assistance claim regarding trial counsel's failure to call a certain witness). Here, the decisions not to call Rendeiro and Tamara Johnson were tactical ones not rising to the level of unreasonableness required by Strickland. Johnson also cannot affirmatively prove prejudice resulting from these decisions, which is required to make out an ineffective assistance of counsel claim. See 466 U.S. at 687-88, 693-94 (holding that a successful claim of ineffective assistance of counsel must show that counsel's representation fell below “an objective standard of reasonableness” under “prevailing professional norms,” and “affirmatively prove prejudice.”).

The same is true of the decision of Johnson's trial counsel not to use the Kings County File, which contains a transcript of a proceeding that Johnson argues shows that Winslow perjured herself. On the contrary, all the transcript shows is that Johnson's state counsel argued during that proceeding that Winslow had perjured herself before the state grand jury, had hired an attorney for this reason, and that she had falsely identified Johnson as the assailant due to a pre-existing grievance. The state refuted all of these claims.

It was not only reasonable for Johnson's federal trial counsel to opt not to use this transcript, but Johnson cannot show that this decision prejudiced him in any way, since the transcript is evidence of nothing more than his state counsel's apparent theory of the case at the time. See Strickland, 466 U.S. at 687-88, 693-94.

B. Actual Innocence

Next, Johnson makes claims of actual innocence based on: (i) alleged admissions by an individual named Dexter Isaac (“Isaac”) that he committed the crimes of which Johnson was convicted; (ii) Winslow's alleged false testimony discussed above, and (iii) an alleged admission by Spurgeon that Johnson was not the assailant of the crimes.

i. Isaac's Statements

In support of his claim that Isaac is the true perpetrator of his crimes, Johnson submits: (i) four signed affidavits from 2000 and 2012 from individuals who were incarcerated with Isaac stating that Isaac took credit for the crimes; (ii) the transcript of a podcast interview with Isaac in which he claims he committed the crimes; (iii) and an alleged Drug Enforcement Agency (“DEA”) report that reflects exculpatory statements allegedly made by Isaac.

As with his ineffective assistance of counsel claims, Johnson's actual innocence claims are not timely. Johnson has been aware of Isaac's statements since 2000 when the first of the affidavits was executed; the government informed Johnson of potentially exculpatory statements made by Isaac in 2012. Yet, Johnson first argued actual innocence based on Isaac's statements in his supplemental briefing to the Court in June 2020, several years after the one-year statute of limitations had expired.

Had Johnson's claims been timely, they would next face a procedural bar. Freestanding claims of actual innocence, such as Johnson's, are generally not cognizable under § 2255, since they do not alone present a constitutional violation. See Hyman v. Brown, 927 F.3d 639, 656 n.20 (2d Cir. 2019) (“Actual innocence is ‘not itself a constitutional claim'-except perhaps when raised in the context of an Eighth Amendment challenge to a capital sentence.” (quoting Schlup v. Delo, 513 U.S 298, 315 (1995)). However, courts in this Circuit have addressed actual innocence claims on the merits, assuming arguendo that they are cognizable, though they are typically rejected due to the “extremely high” bar that must be surpassed to overturn a conviction. See Sweeney v. Laffin, 2017 WL 4342138, at *7 (S.D.N.Y. Sept. 28, 2017) (“[E]ven if a freestanding actual innocence claim could warrant habeas relief, Petitioner has failed to make such a showing because the threshold for any hypothetical freestanding...