United States v. Johnson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 28 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-8058 (D. Wyo.) BARBARA JEAN JOHNSON, (D.Ct. No. 98-CV-111)

Defendant-Appellant. ____________________________

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Barbara Jean Johnson filed a motion under 28 U.S.C. § 2255

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. requesting the district court vacate her sentence and resentence her applying the

“safety valve” provision. The district court denied the motion in part, and

following a hearing on a remaining issue of ineffective assistance of counsel,

denied the motion in its entirety and her request for a certificate of appealability

We deny Ms. Johnson’s request for a certificate of appealability and dismiss the

appeal.

Ms. Johnson is serving a mandatory minimum sixty-month sentence after

pleading guilty to one count of possession with intent to distribute a controlled

substance (cocaine base), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B),

and one count of forfeiture of her property pursuant to 21 U.S.C. § 853. Ms.

Johnson did not file a direct appeal. In her § 2255 motion, she asserts ineffective

assistance of counsel claims based on her trial attorney’s failure to: (1) demand

application of the “safety valve” provision to her sentence under United States

Sentencing Guideline § 5C1.2 and 18 U.S.C. § 3553(f), even though she met all

five “safety valve” requirements; (2) object to the forfeiture of her property; and

(3) file a direct appeal on these issues.

The “safety valve” provision under the Sentencing Guidelines, allows

sentencing without regard to any statutory minimum sentence if the defendant

-2- meets five specific criteria. U.S.S.G. § 5C1.2(5). The district court determined

Ms. Johnson did not meet the requirement of “truthfully provid[ing] to the

Government all information and evidence ... concerning the offense,” because she

refused “to proffer all information within her knowledge regarding her drug

supplier and her daughter’s involvement in the drug distribution scheme at issue.”

The district court further determined Ms. Johnson could not claim ineffective

assistance of counsel for her attorney’s failure to object to forfeiture of her

property because she previously pled guilty to the criminal forfeiture count. As

for her counsel’s failure to file a direct appeal, the district court determined the

limited record precluded resolution of this ineffective assistance claim without the

benefit of an evidentiary hearing because the only evidence involved Ms.

Johnson’s admission that her attorney told her “the Government had her dead to

rights and there was no need to file an appeal.” Consequently, the district court

denied Ms. Johnson’s § 2255 motion in part, and ordered an evidentiary hearing.

After the evidentiary hearing, the district court found that while Ms.

Johnson’s counsel did not specifically recall informing Ms. Johnson of her

appellate rights, his customary practice included advising defendants of their right

to appeal, informing them of the likelihood of success of appeal, and inviting

them to contact him in the event they wanted to file an appeal. During the

-3- hearing, Ms. Johnson’s counsel testified he felt confident Ms. Johnson understood

her appeal options, and Ms. Johnson herself admitted she never asked her attorney

to file an appeal. Based on this testimony, the district court found Ms. Johnson

was fully cognizant of her appeal rights.

Finally, in response to a supplemental filing by Ms. Johnson in which she

relied on United States v. Bajakajian, 524 U.S. 321, 118 S. Ct. 2028 (1998), the

district court addressed her new argument that the forfeiture of her property,

including the equity in her house and a car, was “grossly disproportional” to the

crime. The district court found Bajakajian inapplicable because the facts in Ms.

Johnson’s case differed significantly from that case. The district court

determined forfeiture of Ms. Johnson’s property was not grossly disproportional

to her crime because she agreed to the forfeiture as part of her plea agreement,

and forfeiture of a $60,000 home, in which she had only $6,000 in equity, was not

grossly disproportionate punishment for the “serious offense” of possession of

cocaine with the intent to distribute. For these reasons, the district court denied

the § 2255 motion in full.

On appeal, Ms. Johnson essentially raises the same three issues pertaining

to ineffective assistance of counsel but makes a different argument on appeal to

-4- support the “safety valve” issue. In an attempt to put a new twist on her

remaining ineffective assistance of counsel claim, Ms. Johnson now insists she

would have cooperated and provided truthful information concerning her

daughter’s involvement in the drug distribution scheme, had her attorney

appropriately explained what the “safety valve” provision meant. This assertion

is in stark contrast to her initial claim that her attorney rendered ineffective

assistance of counsel by failing to raise the “safety valve” provision at sentencing

even though she met the requirements for its application.

We review Ms. Johnson’s claims of ineffective assistance of counsel de

novo because they involve mixed questions of law and fact. United States v.

Prows, 118 F.3d 686, 691 (10th Cir. 1997). To prevail, Ms. Johnson must show

her “‘counsel’s representation fell below an objective standard of

reasonableness,’” and that the deficient performance prejudiced her. Id. (quoting

Strickland v. Washington, 466 U.S. 668, 688 (1984)). In order to establish

prejudice, she must show there is reasonable probability that but for her counsel’s

unprofessional error, the result of the proceeding would have been different. Id.

Ms. Johnson fails to make such a showing. While she complains her

attorney failed to object to the forfeiture of her property or demand application of

the “safety valve” provision at sentencing, and then failed to file a direct appeal

-5- on those issues, she has not shown with reasonable probability that but for her

counsel’s errors, the result of the proceeding would have been different. In other

words, even if her counsel made the objections or appealed as she insists, it is

unlikely the result would have been different. As the district court noted, Ms.

Johnson had already pled guilty to the forfeiture count of her indictment, and as

the district court indicated, did not qualify for the “safety valve” provision.

We also find no support for Ms. Johnson’s new argument that she would

have cooperated and provided truthful information on her daughter’s involvement

if her attorney had properly advised her what the “safety valve” provision meant.

At the § 2255 hearing, Ms. Johnson testified she told her attorney she “didn’t

want to snitch on anybody.” While her attorney testified he did not recall whether

he explained to her what “safety valve” meant, he conveyed to her, and she

understood, that if she cooperated in giving up her drug sources, she would get a

lesser sentence, and that otherwise she faced a five-year mandatory minimum

sentence. He further testified Ms. Johnson firmly refused to divulge her sources

or “snitch” under any circumstances. Given these circumstances, Ms. Johnson has

not shown her counsel failed to properly advise her or that his representation fell

below an objective standard of reasonableness.

-6- As for Ms. Johnson’s final argument that her attorney rendered ineffective

assistance because he did not file an appeal or adequately inform her of her

appeal rights, we find upon a review of the record, including the § 2255

evidentiary hearing, that Ms. Johnson’s attorney advised her of her appeal rights

and the likelihood of success on appeal, but she did not ask him to file a direct

Finally, we agree with the district court that Ms. Johnson’s forfeiture of her

1991 Chrysler New Yorker car and her $6,000 equity in her home is not grossly

disproportional to the offense of possessing 12.1 grams of cocaine with the intent

to distribute. See, e.g., United States v. Harris, 903 F.2d 770, 777 (10th Cir.

1990) (holding forfeiture of $413,493 resulting from illegal activity was not

disproportional to crime of possessing three-quarters pound of marijuana). Our

review of Bajakajian only reinforces our conclusion that the amount of forfeiture

in this case does “bear some relationship to the gravity of the offense it is

designed to punish.” ___ U.S. at ___, 118 S. Ct. at 2036-37. In addition, the

appropriateness of Ms. Johnson’s forfeiture is bolstered by her guilty plea to the

forfeiture count of her indictment 1 and her admitted use of her home and vehicle

1 At the plea hearing, the district court explained the forfeiture count of the indictment to Ms. Johnson, including the fact that forfeiture of her property would include her car and home; Ms. Johnson then voluntarily pled guilty to that count.

-7- during commission of the crime.

In order to obtain a certificate of appealability, Ms. Johnson must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). See Lennox v. Evans, 87 F.3d 431, 433 (10th Cir. 1996), cert.

denied, 117 S. Ct. 746 (1997). In doing so, Ms. Johnson must demonstrate the

district court’s disposition of her § 2255 motion is debatable, reasonably subject

to a different outcome on appeal or otherwise deserving of further proceedings.

See Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). A review of the record

establishes Ms. Johnson failed to make the requisite showing for a certificate of

appealability.

For these reasons, we deny Ms. Johnson’s request for a certificate of

appealability and DISMISS her appeal.

Entered by the Court:

WADE BRORBY United States Circuit Judge

-8-