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Johnson v. United States

United States District Court, N.D. Ohio

December 17, 2019

MELVIN E. JOHNSON, Petitioner,

          OPINION & ORDER [RESOLVING DOCS. 340, 356, 362, 363, 364, 368, 369]


         Defendant Melvin E. Johnson seeks to vacate his sentence under 28 U.S.C. § 2255.[1] 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.

         Defendant 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 motions.[2]

         I. Background

         In March 2015, a jury found Defendant guilty of conspiracy to distribute heroin, use of a telephone to facilitate drug trafficking, and money laundering.[3]

         After 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.[4] The Court denied this motion on July 28, 2015.[5] On July 29, 2015, Defendant filed a motion for a new trial.[6] The Court denied the new trial motion on August 13, 2015.[7]

         On September 15, 2015, the Court sentenced Defendant Johnson to 140 months of imprisonment.[8]

         Defendant then appealed to the Sixth Circuit.[9] On March 13, 2017, the Sixth Circuit affirmed Defendant's conviction and sentence.[10]

         Defendant now moves to vacate his sentence under 28 U.S.C. § 2255.[11] 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.[12] The Court will address each of these motions in turn.

         II. Discussion

         A 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 invalid.”[13]

         Except 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.[14] However, a movant may still obtain review of a claim if the claim's forfeiture resulted from ineffective assistance of counsel.[15]

         Further, 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 the law.[16]

         A. Defendant Has Forfeited Claims that Were Raised or Should Have Been Raised on Direct Appeal.

         1. The Sixth Circuit Already Addressed Certain of Defendant's Claims.

         Defendant 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.[17] In part of Ground 31, Defendant claims that the prosecution did not prove that “the alleged proceeds had a connection to the illegal activity.”[18]

         A defendant cannot relitigate claims already decided on direct appeal except in highly exceptional circumstances.[19] The Sixth Circuit considered Grounds 13 and part of 31 in Defendant Johnson's direct appeal.[20] The Defendant does not show any exceptional circumstances to justify the reconsideration of these claims. The Court therefore denies these claims.

         2. Johnson Forfeited Other Claims by Failing to Raise Them on Direct Appeal.

         Defendant 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, [21] Defendant claims that the Court should not have admitted his co-defendant's phone conversations.[22] Defendant makes a similar claim in Ground 14.[23] In part of Ground 13, Defendant claims that there was insufficient evidence for finding of 1 kg of cocaine.[24] In part of Ground 16, Defendant contends that the Court should have reviewed Defendant's motion to dismiss certain counts in the indictment.[25] In Ground 27, Defendant claims that the Court wrongly failed to instruct counsel that Defendant must view all discovery.[26] In Ground 23, Defendant says the Court denied his right to cross-examine a witness, Jabbar Spires, [27] and to be present for side bars during trial.[28] In Ground 15, Defendant argues that the Court's jury instructions “left only a guilty option for a verdict.”[29] In Ground 32, the Defendant says that the Court failed to resolve issues in his presentence report.[30] In Grounds 29 and 34, Defendant claims that the Court committed sentencing errors.[31] Finally, in part of Ground 18, Defendant claims that the Government engaged in selective and discriminatory prosecution.[32]

         Claims not raised on direct appeal cannot be used to support a § 2255 petition unless the defendant can show cause and actual prejudice.[33] In the absence of cause and prejudice, a defendant may raise a claim that demonstrates actual innocence.[34]

         Defendant 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.

         The 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.

         B. Defendant's Ineffective Assistance of Trial Counsel Claims Are Conclusory.

         Defendant makes numerous claims that his trial counsel was ineffective. The Court applies the two-prong Strickland standard to ineffective assistance of counsel claims.[35] To succeed on such a claim, the defendant must demonstrate that counsel's performance was deficient and that he was prejudiced by the deficiency.[36]

         To be deficient, trial counsel's representation must fall “below an objective standard of reasonableness.”[37] The Court scrutinizes counsel's performance under a highly deferential standard and presume that the performance fell within a range of reasonable assistance.[38]

         The 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.”[39]

         1. Trial Counsel Was Not Ineffective For Failing to File Various Pre-Trial Motions.

         In Ground 21, Defendant argues that trial counsel was ineffective for not objecting to the magistrate judge's probable cause finding.[40] 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.[41]

         First, the Court did conduct a probable cause hearing, where it found probable cause existed.[42] 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.

         In Ground 8, Defendant argues that counsel should have objected to a fatal variance between the grand jury evidence and trial evidence.[43]

         Here, 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.

         Finally, in part of Ground 20, Defendant claims that his counsel was ineffective for not challenging the jury instructions or introducing new instructions.[44] He also argues that counsel did not participate in jury selection.

         In reality, however, trial counsel did propose specific jury instructions and did participate in voir dire.[45] She requested that the Court ask the jurors additional questions, [46] and she successfully moved to strike numerous jurors.[47] Without further specifying how trial counsel's performance was deficient, the Court also denies this ground.

         2. Trial Counsel Was Not Ineffective for Failing to Move to Dismiss the Indictment.

         In 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.[48] 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.

         But counsel did file motions challenging the indictment.[49] Defendant does not explain why he believes counsel should have refiled an already denied motion. Counsel has no obligation to raise frivolous claims.[50] 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.

         3. Trial Counsel Was Not Ineffective for Participating in the Plea Process.

         In Ground 26, Defendant argues that his counsel was ineffective for pursuing a plea deal without his consent.[51] In Ground 18, he says that trial counsel conspired with the prosecution to manipulate him into a “take it or leave it deal.”[52]

         Defendant 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.

         4. Trial Counsel Was Not Ineffective for Not Filing a Motion to Dismiss for a Speedy Trial Violation.

         In Ground 28, Defendant claims that trial counsel was deficient for not raising a speedy trial violation.[53]

         However, no such violation existed. Defendant's trial counsel filed an unopposed motion to continue because she needed more time to review discovery with Defendant.[54] The Court then granted this motion, finding that it did not violate Defendant Johnson's speedy trial rights.[55] The Court therefore denies this claim.

         5. Trial Counsel Was Not Ineffective for Failing to Object to the Prosecution's Conduct.

         In 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.[56] 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.

         Further, trial counsel did object to various statements during the prosecution's arguments and witness examinations, many of which were sustained.[57] These claims are therefore also denied.

         In Ground 2, Defendant claims that trial counsel was ineffective for not objecting to the prosecutor's conduct.[58] He says that trial counsel failed to investigate prosecutorial misconduct before the Grand Jury.

         This 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.

         Ground 2 therefore also denied.

         6. Trial Counsel Was Not Ineffective for Failing to Raise Objections to Certain Evidence.

         a. Co-Conspirator Evidence

         In Ground 6, Defendant Johnson argues that counsel should have objected to the Government's suppression of a co-defendant, John Smith's, cooperation agreement.[59] 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 his case.

         In Ground 3, Defendant claims that he received ineffective assistance of counsel because counsel did not object to co-conspirators' statements at trial.[60] The record, however, supports a different conclusion. Counsel raised objections to co-conspirators' text messages and phone calls, [61] some of which the Court sustained.

         Both of these Grounds are therefore denied.

         b. Wiretap Evidence

         In 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.[62] He contends that a Franks hearing to challenge the warrant's validity should have been held.

         Defendant does not make a specific and substantial preliminary showing that the affidavit contained knowing and intentionally false statements.[63] 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.[64] In fact, a co-defendant made such a motion and it was denied.[65]

         These Grounds are also denied.

         c. Police Officers' Testimony

         In Ground 5, Defendant claims that counsel should have objected to extraneous testimony provided by officers Belosic and Mosca.[66] Officer Belosic gave testimony on surveillance, recordings, and a search of Defendant's home.[67]Officer Mosca then corroborated Belosic's testimony.[68]

         These testimonies related directly to Defendant's case. Defendant does not identify any specific testimony that trial counsel should have objected to.

         This Ground is also denied.

         7. Trial Counsel Did Not Prevent Defendant's Participation in His Trial.

         In Grounds 22 and 24, Defendant argues that trial counsel did not permit him to testify at trial, participate in his ...

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