United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, District Judge.
This matter comes before the court on the motion of Arnetta Johnson to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. Johnson alleges that her attorney provided ineffective assistance while defending her against the charges in this case. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.
Facts and Procedural Posture
On October 7, 2009, a Grand Jury returned an indictment charging Arnetta Johnson on three of nine counts for violations of:
Count One: 18 U.S.C. §§ 2 and 513(a) - uttering forged and counterfeit securities;
Count Three: 18 U.S.C. §§ 2 and 1028(a)(7) - fraud with identification documents; and
Count Nine: 18 U.S.C. § 1029(a)(5) - producing or trafficking in counterfeit devices.
Johnson pled guilty to Counts Three and Nine in accordance with a plea agreement and supplement, and the government agreed to dismiss Count One as to Johnson and not to charge Johnson with any other offenses arising out of or related to the other charges. In addition, the plea agreement set forth that the "[d]efendant has read and fully understands this plea agreement and approves same, realizing that the plea agreement is subject to acceptance or rejection by the Court." Further, the plea agreement stated that "no promise or representation whatsoever has been made to defendant as to what punishment the Court might impose if it accepts the plea(s) of guilty." The plea agreement also stated that "[t]his agreement fully reflects all promises, agreements, and understandings between the defendant and the United States Attorney. The defendant's agreement is knowing, free, and voluntary, and not the product of force, threat, or coercion. The defendant is pleading guilty because defendant is in fact guilty." The plea supplement set forth that "[t]here is no agreement as to the sentence to be imposed, which will be in the sole discretion of the Court subject to the now advisory Federal Sentencing Guidelines and any statutory mandatory minimums, which have been explained to defendant by defendant's attorney. " (Emphasis added). The government moved for an upward departure, citing Johnson's extensive history of shoplifting and petty theft, and Johnson's counsel provided a memorandum to the court, noting that the thefts were minor - and the result of addiction - rather than simply a stubborn refusal to obey the law. The calculation by the Probation Service based upon the Presentence Investigation Report yielded a Guidelines Range of 33 to 41 months. The court made an upward departure and imposed a sentence of 48 months incarceration on Counts Three and Nine (to run concurrently), restitution of $3, 027.50, supervised release of three years on each count (to run concurrently), and a special assessment of $200.00. Count One was dismissed.
In the instant motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255, Johnson alleges that her attorney rendered ineffective assistance in defending her by inducing her to plead guilty. Johnson alleges that she believed that her plea agreement would ensure that she served no more than 36 months imprisonment, but the court imposed a term of 48 months. As part of this claim, Johnson believes that the court used prior convictions in determining her criminal history that were outside the time period permitted in calculating her sentence. In addition, Johnson argues that her simultaneous convictions under 18 U.S.C. § 1028(a)(7) and 18 U.S.C. § 1029(a)(5) constitute double jeopardy. She believes that her counsel should have sought dismissal of one of the two charges on this basis. As discussed below, these claims are without merit and will be denied.
Ineffective Assistance of Counsel
The court must address claims of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that defense counsel was ineffective, Johnson must show that counsel's performance was deficient and that the deficiency resulted in prejudice to her defense. Under the deficiency prong of the test, Johnson must show that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The court must analyze counsel's actions based upon the circumstances at the time - and must not use the crystal clarity of hindsight. Lavernia v. Lynaugh, 845 F.2d 493, 498 (5th Cir. 1988). The petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (citation omitted). To prove prejudice, petitioner must demonstrate that the result of the proceedings would have been different or that counsel's performance rendered the result of the proceeding fundamentally unfair or unreliable. Vuong v. Scott, 62 F.3d 673, 685 (5th Cir. 1995), cert. denied, 116 S.Ct. 557 (1995); Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Sharp v. Johnson, 107 F.3d 282, 286 n.9 (5th Cir. 1997).
Arnetta Johnson argues in Ground One that her attorney gave her "erroneous advice to induce acceptance of Plea Agreement." In support of this claim, she states that the "[p]lea deal was agreed upon for 36 months, not 48 months the movant received." However, as set forth above, both the Plea Agreement and Plea Supplement made perfectly clear that the sentence was entirely up to the court, limited by "the now advisory Federal Sentencing Guidelines and any statutory mandatory minimums." She also acknowledged that she understood that "no promise or representation whatsoever has been made to defendant as to what punishment the Court might impose if it accepts the plea(s) of guilty" - and that the plea "agreement fully reflects all promises, agreements, and understandings between the defendant and the United States Attorney. The defendant's agreement is knowing, free, and voluntary, and not the product of force, threat, or coercion. The defendant is pleading guilty because defendant is in fact guilty." Johnson signed both the Plea ...