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United States v. Johnson

United States District Court, D. Minnesota

March 19, 2018

United States of America, Respondent-Plaintiff,
v.
Daniel Morris Johnson, Petitioner-Defendant.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner-Defendant Daniel Morris Johnson's pro se motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence. (Doc. No. 127.) The United States of America (the “Government”) opposes Petitioner-Defendant's petition. (Doc. No. 133.)

         Petitioner/Defendant alleges that his sentence that was imposed by this Court was excessive and that he received ineffective assistance of counsel at trial.

         BACKGROUND

         On May 21, 2014, in a one count Indictment, Petitioner-Defendant was charged with production of child pornography in violation of 18 U.S.C. § 2251(a) and 2251(e). (Doc. No. 1.) Petitioner-Defendant proceeded to a bench trial before this Court and was found guilty as charged. (Doc. No. 61 at 6.) The United States Probation and Pretrial Services Office then prepared a presentence investigation report (“PSR”). The PSR found that Petitioner-Defendant's total adjusted offense level was 38, and based upon the criminal history category of V, that created an advisory imprisonment range of 360 months to life in prison. The imprisonment range was capped at the statutory maximum of 50 years because of Petitioner-Defendant's prior conviction involving sexual contact with a minor. (PSR ¶ 65.)

         The record before this Court will speak for itself. The parties filed comprehensive and significant pleadings with respect to sentencing. The Government sought a 50-year sentence based upon Petitioner-Defendant's history of abusing children and, specifically, his pattern of developing relationships with adult women with female children and abusing those children. (Doc. No. 82 at 2-3.) The Government also argued that there was an aggravating factor present, namely Petitioner-Defendant blamed the 15-year-old victim for the abuse by asserting that she had seduced him and he characterized the abuse as “an affair.” Id.

         Petitioner-Defendant did object to the use of his prior conviction for fifth-degree criminal sexual conduct to enhance the mandatory minimum and statutory maximum penalties in his case. (Doc. No. 79 at 20.) The Court adopted the PSR without change. The Court rejected Petitioner-Defendant's arguments, and in so doing applied the enhancement and sentenced Petitioner-Defendant to 354 months' imprisonment.[1] The Court ordered Petitioner-Defendant's federal sentence to be served concurrently with the sentence in Chippewa County District Court. (Doc. No. 108 at 2.)

         Petitioner-Defendant then appealed this Court's denials of his motion to suppress evidence which was obtained during the search of his residence asserting that the warrant supporting the affidavit lacked probable cause and the required nexus to his residence. Significantly, Petitioner-Defendant challenged the same predicate offense enhancement applied at sentencing based on his prior state conviction for fifth-degree criminal sexual conduct as he is now asserting in this action before the Court. United States v. Johnson, 848 F.3d 872, 874-75 (8th Cir. 2017). The Eighth Circuit rejected Petitioner-Defendant's arguments, including his argument with respect to how the Court treated his fifth-degree criminal sexual conduct conviction and affirmed the judgment of this Court. Id. at 880. As noted above, on November 17, 2017, Petitioner-Defendant filed the instant motion that is now before the Court.

         DISCUSSION

         I. Section 2255 Legal Standard

         Title 28, United States Code, Section 2255, provides that a prisoner “may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” In making such a motion, a § 2255 action requires a prisoner to show that he has the right to be released because:

[T]he 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. . . .

28 U.S.C. § 2255(a).

         It must be kept in mind that a § 2255 request for relief is extraordinary and “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Thus, contrary to a number of Petitioner-Defendant's assertions which will be addressed below, § 2255 does not encompass all claimed errors in conviction and sentencing.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)).

         As observed by the Government, a § 2255 motion may not be employed to collaterally attack issues that have been raised and decided on direct appeal. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001).

         A. ...


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