Johnson v. United States

• Court: Court of Appeals for the Second Circuit
• Decided: September 29, 2023
• Docket: 22-68
• Status: Unpublished

Opinion

22-68-pr Johnson v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of September, two thousand twenty-three. Present: BARRINGTON D. PARKER, WILLIAM J. NARDINI, Circuit Judges, JED S. RAKOFF, District Judge. *

_____________________________________ MARVIN JOHNSON, Petitioner-Appellant, v. 22-68-pr UNITED STATES OF AMERICA, Respondent-Appellee. _____________________________________

For Petitioner-Appellant: Jonathan I. Edelstein, Edelstein & Grossman, New York, NY

For Respondent-Appellee: Amy Busa, Robert Polemeni, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY

* Judge Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.

1 Appeal from a judgment of the United States District Court for the Eastern District of New

York (Frederic Block, District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and the case is REMANDED

for further proceedings.

Petitioner-Appellant Marvin Johnson appeals from a judgment of the United States District

Court for the Eastern District of New York (Frederic Block, District Judge), entered on November

18, 2021, denying Johnson’s motion to vacate his conviction under 28 U.S.C. § 2255. Johnson

was convicted after a jury trial of murder in aid of racketeering, in violation of 18 U.S.C.

§ 1959(a)(1), drug-related murder, in violation of 21 U.S.C. § 848(e)(1), Hobbs Act robbery

conspiracy, in violation of 18 U.S.C. § 1951(a), conspiracy to distribute cocaine and marijuana, in

violation of 21 U.S.C. § 846, and unlawful use of a firearm, in violation of 18 U.S.C. § 924(c)(1).

The district court sentenced him to concurrent terms of life imprisonment on each of the two

murder counts and the drug distribution count. It also imposed a concurrent 20-year term of

imprisonment for the Hobbs Act count and a consecutive 10-year term of imprisonment on the

unlawful use of a firearm count, for a total sentence of life imprisonment plus 10 years. The district

court denied Johnson’s request for a certificate of appealability, but we granted a certificate limited

to the issue of whether the district court erred in denying Johnson’s § 2255 motion based on his

claim that counsel was ineffective for not conveying a plea offer from the government, when the

denial of that claim was based solely on Johnson’s assertions of innocence and the district court

did not first hold an evidentiary hearing or obtain affidavits from the government or defense

counsel.

2 On appeal, the parties agree that the district court’s order should be vacated and the case

remanded so that the district court may either hold an evidentiary hearing or obtain affidavits from

the government or Johnson’s trial counsel to develop a factual record sufficient to resolve

Johnson’s ineffective assistance of counsel claim. We agree with the parties. The question

authorized by the certificate of appealability is one of law, which we review de novo. Green v.

United States, 260 F.3d 78, 82 (2d Cir. 2001); Rivera v. United States, 716 F.3d 685, 687 (2d Cir.

2013). To demonstrate ineffective assistance of counsel, a defendant must show that (1) his

counsel’s performance “fell below an objective standard of reasonableness,” and (2) there is a

“reasonable probability” that the deficient performance affected the case’s outcome. Strickland v.

Washington, 466 U.S. 668, 687–96 (1984). In the context of plea bargaining, regarding the first

Strickland prong, defense counsel has a “duty to communicate formal offers from the prosecution

to accept a plea on terms and conditions that may be favorable to the accused,” but if defense

counsel fails to do so, consistent with the second Strickland prong, the defendant must still show

that there is a reasonable probability that he would have accepted the plea offer and that the

prosecution would not have canceled the offer or the trial court would not have refused to accept

it. Missouri v. Frye, 566 U.S. 134, 144–49 (2012).

In determining whether this is a reasonable probability that the defendant would have

accepted a plea offer that was not conveyed, as this Court has previously explained, an “insistence

on . . . innocence,” although a relevant factor, “is not dispositive.” Cullen v. United States, 194

F.3d 401, 407 (2d Cir. 1999); see Mask v. McGinnis, 233 F.3d 132, 142 (2d Cir. 2000). In other

words, the district court could not reject Johnson’s claim for ineffective assistance of counsel

because it failed to satisfy the second Strickland prong based solely on Johnson’s consistent

professions of innocence. Accordingly, as the parties have urged, we conclude that the district

3 court must either hold an evidentiary hearing or obtain affidavits sufficient to determine: (1)

whether a formal plea offer was made to Johnson’s trial counsel, and if so, the contents of that plea

offer and (2) if a formal plea offer was made, whether Johnson’s trial counsel was constitutionally

ineffective for failing to convey the plea offer to Johnson. See Cullen, 194 F.3d at 407.

* * *

For the reasons stated above, we VACATE the judgment of the district court and

REMAND for further proceedings consistent with this order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk