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Johnson v. United States

United States District Court, D. South Carolina, Charleston Division

December 2, 2019

DARRYL LEE JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant Darryl Lee Johnson's (“Johnson”) motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255, ECF No. 746. For the reasons set forth below, the court dismisses Johnson's petition.

         I. BACKGROUND

         On November 12, 2008, in a superseding indictment, a federal grand jury charged Johnson with the following: (1) one count of conspiracy to possess with intent to distribute and distribute a quantity of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), all in violation of 21 U.S.C. § 846 (Count 1); (2) three counts of possession with intent to distribute and distribution of a quantity of heroin, as well as aiding and abetting others in the same offenses, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2 (Counts 13, 27, and 32); and (3) one count of possession with intent to distribute and distribution of a quantity of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 26). ECF No. 137.

         On April 13, 2009, Johnson pled guilty to Counts 1, 13, 26, and 32 pursuant to a written plea agreement. ECF No. 314. The United States Probation Office (USPO) subsequently prepared a presentence report (PSR), which included a recommended range of imprisonment of 24-30 months with three to five years of supervised release, according to the United States Sentencing Guideline (“Guidelines”). ECF No. 648. The government submitted an objection to the PSR, arguing that Johnson's August 11, 2008 assault and battery of a high and aggravated nature (“ABHAN”) conviction constituted a prior “crime of violence”, which, in conjunction with his January 22, 2004 felony drug conviction, would classify him as a career offender and trigger a Guideline enhancement.[1] The court sustained the government's objection and sentenced Johnson to a term of imprisonment of 151 months and five years of supervised release, consistent with his enhanced Guideline range. ECF No. 654.

         Johnson appealed his sentence to the Fourth Circuit, where his sentence was vacated and remanded to this court for a determination of whether ABHAN is a “crime of violence” under the categorical approach embraced by the Fourth Circuit. United States v. Johnson, 475 Fed. App'x 494 (4th Cir. 2012) (unpublished opinion). On remand, this court concluded that ABHAN was a “crime of violence” for the purposes of the Guidelines and resentenced Johnson to 151 months of imprisonment and five years of supervised release, the same sentence he received before his appeal. ECF No. 731. Johnson appealed that sentence to the Fourth Circuit where his counsel filed an Anders brief identifying the issue on appeal before the court relieved him from representation. On February 6, 2013, the Fourth Circuit affirmed, making Johnson's judgment final. United States v. Johnson, 508 Fed.Appx. 277 (4th Cir. 2013) (unpublished opinion).

         On January 28, 2014, Johnson, acting pro se, filed the instant motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255 (the “First Petition”). ECF No. 746. On May 22, 2014, the government filed a motion to hold the petition in abeyance pending the resolution of Whiteside v. United States, 775 F.3d 180 (4th Cir. 2014), which the court granted. On November 19, 2015, Johnson, again acting pro se, filed another § 2255 petition (the “Second Petition”), adding new grounds for his motion. ECF No. 780. On January 28, 2016, Johnson filed a supplement to his Petitions through his newly appointed counsel. ECF No. 781. The government responded to the Second Petition on February 26, 2016. ECF No. 784. Thereafter, Johnson filed several supplements to his Petitions: a second supplement on March 31, 2017, ECF No. 793; a third on May 28, 2018, ECF No. 803; a fourth on June 20, 2018, ECF No. 832; and a fifth on March 21, 2019, ECF No. 837. On June 3, 2019, the government responded. ECF No. 838.

         II. STANDARD

         Federal district courts are charged with liberally construing petitions filed by pro se litigants to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se petitions are therefore held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal construction, however, does not mean that a court may ignore a clear failure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).

         Pursuant to 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court established by Act of Congress 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.

         The petitioner must prove the grounds for collateral attack by a preponderance of the evidence.[2] See King v. United States, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).

         III. DISCUSSION

         As grounds for his First Petition, Johnson asserts the same ground for relief as he asserted on direct appeal-that the court's enhancement of his advisory Guideline range under U.S.S.G. § 4B1.1 was improper because ABHAN cannot serve as an underlying “crime of violence” for a career criminal designation. Johnson's Second Petition adds two additional grounds for relief: a change in the law based on the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), and ineffective assistance of counsel.[3] Johnson's five supplements to his Petitions seek to clarify the governing law and provide precedential support for each of Johnson's grounds for relief. Strangely, these supplements also contend that Federal Rules of Civil Procedure 59 and 60 provide Johnson with a basis for relief. Because timeliness is critical to the resolution of the instant petition, the court divides Johnson's asserted grounds for relief into those asserted by his First Petition and those asserted by in his Second ...


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