United States District Court, N.D. Mississippi, Greenville Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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).
and Procedural Posture
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
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.
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
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.
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.
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.
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