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Johnson v. United States

United States District Court, N.D. Mississippi, Greenville Division

March 3, 2017

DON EARL JOHNSON MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE

         This matter comes before the court on the motion of Don Earl Johnson to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.

         Section 2255 Proceedings

         Section 28 U.S.C. § 2255 permits an inmate serving a sentence after conviction of a federal crime to “move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, a § 2255 motion sets forth only four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Thus, a prisoner must claim either a constitutional violation or want of subject matter jurisdiction to invoke 28 U.S.C. § 2255. In the absence of constitutional or jurisdictional defects, a federal prisoner may invoke § 2255 only if the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).

         The district court must first conduct a preliminary review of a section 2255 motion, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion.” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then require the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Rules Governing Section 2255 Proceedings, Rules 6-7.

         After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must decide whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8. Under the statute, an evidentiary hearing must be held unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). However, the court need not hold an evidentiary hearing if the prisoner fails to produce “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

         Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. See Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain “structural” errors, relief follows automatically once the error is proved. See Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir. 2003). For other errors at the trial court level, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case. Brecht v. Abrahmson, 507 U.S. 619, 637 (1993); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht's harmless error standard in a § 2255 proceeding). If the Court finds that the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         Facts and Procedural Posture[1]

         Don Earl Johnson was born in 1965 in Greenville, Mississippi (PSR at 20). Sometime in the late 1980's Johnson moved to Massachusetts to live with his father. Id. In April 1994, at age 28, Johnson was arrested on rape charges in Massachusetts. In November 1994 he pled guilty to two counts of indecent assault and battery charges, as well as one count of assault and battery. PSR at 9-10. He was sentenced to a one-year term of imprisonment for each charge, to run concurrently. It is this charge for which he was required to register as a sex offender under Massachusetts law, and later, under federal law. See Massachusetts General Laws, Chapter 6, Section 178H; see also 18 U.S.C. § 2250 (Failure to Register or Maintain Registration).[2]

         Mr. Johnson was convicted for 22 crimes from 1987 (age 21) through 2012 (age 45). In addition, during that period, Johnson was arrested some 18 times on charges that were ultimately dismissed. The court will, however, discuss only the two convictions Johnson challenges regarding their use to compute his criminal history points for sentencing.

         On June 6, 1995, at age 29, Johnson was arrested for assault and battery - and assault and battery with a dangerous weapon. Fitchburg, Massachusetts District Court, Case No. 9516CR0949A/B. He was convicted on both charges on July 11, 1995, and sentenced to a one- year split term, with one month to serve followed by two years supervised probation. He violated that probation several times, which resulted in his periodic incarceration from February 12, 1996, through April 1999.

         On February 5, 1996, at age 30, Johnson was arrested for attempting to break into the residence of a woman. On March 12, 1996, he was convicted of attempt to commit a crime and sentenced to ten months incarceration, which was originally stayed. District Court, Fitchburg, Massachusetts, No. 9516CR2356A. The stay was revoked a month later, and he was placed in custody for a term of ten months, to run concurrent to Case No. 9516CR1192A (a one-year split sentence). Again, Johnson repeatedly violated the terms of his stayed sentence and was incarcerated, on and off, until he was finally released on that charge in approximately February 1999.

         Johnson last registered as a sex offender in April 2009 in Massachusetts. On April 24, 2009, he signed a Massachusetts Sex Offender Registration Form making the mandatory nature of the requirement clear:

Please Read Carefully Before Signing - Yo u are advised that you must notify, in writing, the Sex Offender Registry Board and the Police Department in the city or town in which you reside not less than 10 days prior to any change in residence, employment or attendance at an institution of higher learning. You are further advised that you are required to immediately contact and advise of your presence the appropriate authorities in any other state in which you locate yourself for the purpose of residence, employment or attendance at an institution of higher learning. Failing to do so may subject you to criminal prosecution.

Docs. 46-1, 46-2 at 1, PSR at 4. On May 8, 2009, Massachusetts authorities issued an arrest warrant for Johnson for failing to update his registry information about a move. PSR at 4.

         Johnson was arrested in February 2012 in Greenville, Mississippi, for receiving stolen property. Officers discovered that he had not registered in Mississippi as a sex offender and contacted a Deputy U.S. Marshal about Johnson. The Marshal discovered that Johnson had established electrical service for his Greenville, Mississippi, residence in May 2009, but had not registered as a sex offender in Mississippi. PSR at 4-5.

         The Government filed a criminal complaint on March 16, 2012, charging Johnson with failure to register as a sex offender in Mississippi and failure to update his registry in ...


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