United States District Court, N.D. Ohio
MELVIN E. JOHNSON, Petitioner,
UNITED STATES OF AMERICA Respondent.
OPINION & ORDER [RESOLVING DOCS. 340, 356, 362,
363, 364, 368, 369]
S. GWIN, UNITED STATES DISTRICT JUDGE.
Melvin E. Johnson seeks to vacate his sentence under 28
U.S.C. § 2255. He raises a laundry list of 33 grounds,
many of which contain multiple unrelated claims. However,
Defendant has waived many of these claims. His other claims
are merely conclusory statements that the record evidence or
law do not support. For the following reasons, the Court
DENIES Defendant's § 2255 motion.
has filed a flurry of other motions in this case. Many of
these motions, though not so labeled, address the same or
additional ground for relief as Defendant's § 2255
motion. The Court also DENIES these
March 2015, a jury found Defendant guilty of conspiracy to
distribute heroin, use of a telephone to facilitate drug
trafficking, and money laundering.
the trial, but before sentencing, on July 22, 2015, Defendant
Johnson moved to remove his trial counsel. In support of his
motion to remove his attorney, Johnson claimed a complete
break in their relations. The Court denied this motion on July
28, 2015. On July 29, 2015, Defendant filed a motion
for a new trial. The Court denied the new trial motion on
August 13, 2015.
September 15, 2015, the Court sentenced Defendant Johnson to
140 months of imprisonment.
then appealed to the Sixth Circuit. On March 13, 2017, the Sixth
Circuit affirmed Defendant's conviction and
now moves to vacate his sentence under 28 U.S.C. §
2255. In addition, Defendant has filed a
multitude of other documents seeking various forms of relief:
a motion for sentence reduction, a motion to expand the
record and disclose discovery, a motion to conduct discovery
and for counsel, a motion for extension in filing deadlines,
a motion for a certified copy of a protection order, and a
request for free copies of transcripts. The Court
will address each of these motions in turn.
federal prisoner may collaterally attack their conviction or
sentence by filing a § 2255 motion to vacate, set aside,
or correct the sentence. To prevail, a movant “must
allege as a basis for relief: (1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
for a claim of ineffective assistance of counsel, a federal
prisoner's failure to raise a claim on direct appeal
causes a procedural default of that claim. However, a
movant may still obtain review of a claim if the claim's
forfeiture resulted from ineffective assistance of
a movant may not use a § 2255 motion to relitigate an
issue that was raised and considered on appeal absent highly
exceptional circumstances, such as an intervening change in
Defendant Has Forfeited Claims that Were Raised or Should
Have Been Raised on Direct Appeal.
The Sixth Circuit Already Addressed Certain of
makes claims that have already been litigated on direct
appeal. In part of Ground 13, Defendant argues that the
weight and sufficiency of the evidence did not support a
conspiracy conviction. In part of Ground 31, Defendant
claims that the prosecution did not prove that “the
alleged proceeds had a connection to the illegal
defendant cannot relitigate claims already decided on direct
appeal except in highly exceptional
circumstances. The Sixth Circuit considered Grounds 13
and part of 31 in Defendant Johnson's direct
appeal. The Defendant does not show any
exceptional circumstances to justify the reconsideration of
these claims. The Court therefore denies these claims.
Johnson Forfeited Other Claims by Failing to Raise Them on
Johnson says that the Court erred in a variety of ways at
trial, but Johnson did not raise these claims in previous
appeals. In Ground 12,  Defendant claims that the Court
should not have admitted his co-defendant's phone
conversations. Defendant makes a similar claim in
Ground 14. In part of Ground 13, Defendant claims
that there was insufficient evidence for finding of 1 kg of
cocaine. In part of Ground 16, Defendant contends
that the Court should have reviewed Defendant's motion to
dismiss certain counts in the indictment. In Ground 27,
Defendant claims that the Court wrongly failed to instruct
counsel that Defendant must view all discovery. In Ground 23,
Defendant says the Court denied his right to cross-examine a
witness, Jabbar Spires,  and to be present for side bars
during trial. In Ground 15, Defendant argues that the
Court's jury instructions “left only a guilty
option for a verdict.” In Ground 32, the Defendant
says that the Court failed to resolve issues in his
presentence report. In Grounds 29 and 34, Defendant claims
that the Court committed sentencing errors. Finally, in
part of Ground 18, Defendant claims that the Government
engaged in selective and discriminatory
not raised on direct appeal cannot be used to support a
§ 2255 petition unless the defendant can show cause and
actual prejudice. In the absence of cause and prejudice, a
defendant may raise a claim that demonstrates actual
did not raise the above Grounds on direct appeal. Defendant
has not provided cause for this failure, nor shown actual
prejudice resulting from this failure. Additionally,
Defendant Johnson has not demonstrated actual innocence.
Court therefore denies Grounds 12, 13 (in relevant part), 14,
15, 16 (in relevant part), 18 (in relevant part), 23, 27, 29,
32, and 34.
Defendant's Ineffective Assistance of Trial Counsel
Claims Are Conclusory.
makes numerous claims that his trial counsel was ineffective.
The Court applies the two-prong Strickland standard
to ineffective assistance of counsel claims. To succeed on
such a claim, the defendant must demonstrate that
counsel's performance was deficient and that he was
prejudiced by the deficiency.
deficient, trial counsel's representation must fall
“below an objective standard of
reasonableness.” The Court scrutinizes counsel's
performance under a highly deferential standard and presume
that the performance fell within a range of reasonable
prejudice prong requires that the defendant “show that
there is a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would
have been different.”
Trial Counsel Was Not Ineffective For Failing to File Various
Ground 21, Defendant argues that trial counsel was
ineffective for not objecting to the magistrate judge's
probable cause finding. Defendant's argument is
convoluted, and he lists numerous complaints without any
explanation or substantiation. For instance, Defendant
complains about his car's identification and false
statements in the warrant affidavit, an allegation he repeats
in multiple grounds. He also claims that counsel should have
requested a probable cause hearing.
the Court did conduct a probable cause hearing, where it
found probable cause existed. Further, Defendant has not
identified what aspect of the magistrate's findings
during the hearing counsel should have objected to. Without
further substantiation or factual support, the claim is
merely conclusory. The Court denies this ground for relief.
Ground 8, Defendant argues that counsel should have objected
to a fatal variance between the grand jury evidence and trial
Defendant has not pointed to any specific variance that
occurred or shown how he was prejudiced by such a variance.
He therefore fails to satisfy his burden of showing that
counsel was deficient and that he was prejudiced by the
deficiency. This ground is also denied.
in part of Ground 20, Defendant claims that his counsel was
ineffective for not challenging the jury instructions or
introducing new instructions. He also argues that counsel
did not participate in jury selection.
reality, however, trial counsel did propose specific jury
instructions and did participate in voir
dire. She requested that the Court ask the
jurors additional questions,  and she successfully moved to
strike numerous jurors. Without further specifying how trial
counsel's performance was deficient, the Court also
denies this ground.
Trial Counsel Was Not Ineffective for Failing to Move to
Dismiss the Indictment.
Ground 30 and parts of Grounds 7, 11, 16 and 31, Defendant
argues that his trial counsel was ineffective for not
objecting to a defective indictment. With this argument,
Johnson takes issue with trial counsel's failure to quash
testimonial language from the indictment and to refile a
motion to that effect.
counsel did file motions challenging the
indictment. Defendant does not explain why he
believes counsel should have refiled an already denied
motion. Counsel has no obligation to raise frivolous
claims. Defendant makes the claims without any
supporting argument or explanation. Defendant does not
specify why trial counsel's performance was deficient or
how he was prejudiced by counsel's performance. As a
result, these claims fail.
Trial Counsel Was Not Ineffective for Participating in the
Ground 26, Defendant argues that his counsel was ineffective
for pursuing a plea deal without his consent. In Ground 18,
he says that trial counsel conspired with the prosecution to
manipulate him into a “take it or leave it
has not shown that trial counsel fell below the required
level of performance by allegedly pursuing a plea, nor does
he explain how this prejudiced him. Defendant did not accept
a plea agreement. Instead, his conviction resulted from a
jury trial entirely separate from the plea-bargaining
process. Grounds 26 and 18 are therefore denied.
Trial Counsel Was Not Ineffective for Not Filing a Motion to
Dismiss for a Speedy Trial Violation.
Ground 28, Defendant claims that trial counsel was deficient
for not raising a speedy trial violation.
no such violation existed. Defendant's trial counsel
filed an unopposed motion to continue because she needed more
time to review discovery with Defendant. The Court
then granted this motion, finding that it did not violate
Defendant Johnson's speedy trial rights. The Court
therefore denies this claim.
Trial Counsel Was Not Ineffective for Failing to Object to
the Prosecution's Conduct.
Grounds 4 and 17, Defendant argues that trial counsel should
have objected to portions of the prosecution's opening
and closing statements and direct examinations. Defendant
Johnson fails to point to any specific instance in the record
showing where counsel should have objected. He also does not
specify how the lack of objections prejudiced his case.
trial counsel did object to various statements during the
prosecution's arguments and witness examinations, many of
which were sustained. These claims are therefore also
Ground 2, Defendant claims that trial counsel was ineffective
for not objecting to the prosecutor's
conduct. He says that trial counsel failed to
investigate prosecutorial misconduct before the Grand Jury.
claim is conclusory. Defendant does not provide any factual
specificities to prove that the prosecution engaged in
misconduct during the Grand Jury proceedings or how that
affected his eventual trial and conviction.
2 therefore also denied.
Trial Counsel Was Not Ineffective for Failing to Raise
Objections to Certain Evidence.
Ground 6, Defendant Johnson argues that counsel should have
objected to the Government's suppression of a
co-defendant, John Smith's, cooperation
agreement. However, Defendant does not point to any
reference in the trial transcripts to a cooperation agreement
between Smith and the Government. In fact, John Smith did not
testify at trial. Defendant fails to explain why any
cooperation agreement, whether real or not, is relevant to
Ground 3, Defendant claims that he received ineffective
assistance of counsel because counsel did not object to
co-conspirators' statements at trial. The record,
however, supports a different conclusion. Counsel raised
objections to co-conspirators' text messages and phone
calls,  some of which the Court sustained.
these Grounds are therefore denied.
Grounds 1, 10, and 33, Defendant argues that trial counsel
was ineffective because she did not file any motions to
suppress false statements in the search warrant affidavit or
the wiretaps. He contends that a Franks
hearing to challenge the warrant's validity should have
does not make a specific and substantial preliminary showing
that the affidavit contained knowing and intentionally false
statements. Thus, no basis for a Franks
hearing existed. Defendant does not prove that trial
counsel's failure to move to suppress the wiretaps was so
egregious that his substantial rights were
violated. In fact, a co-defendant made such a
motion and it was denied.
Grounds are also denied.
Police Officers' Testimony
Ground 5, Defendant claims that counsel should have objected
to extraneous testimony provided by officers Belosic and
Mosca. Officer Belosic gave testimony on
surveillance, recordings, and a search of Defendant's
home.Officer Mosca then corroborated
testimonies related directly to Defendant's case.
Defendant does not identify any specific testimony that trial
counsel should have objected to.
Ground is also denied.
Trial Counsel Did Not Prevent Defendant's Participation
in His Trial.
Grounds 22 and 24, Defendant argues that trial counsel did
not permit him to testify at trial, participate in his ...