United States v. Johnson

624 F. Supp. 1191, 1986 U.S. Dist. LEXIS 30434
District Court, E.D. Pennsylvania·Decided January 15, 1986·No. Grim. No. 80-162·Published·Cited by 4 cases

Opinion

OPINION

LUONGO, Chief Judge.

On July 28, 1980 petitioner Frederick L. Johnson pled guilty before me to three counts charging him with distribution of heroin. On August 29, 1980 I sentenced him to a total of three years’ imprisonment to be followed by three years of special parole. Johnson has now filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Because the motion and the records of this case “conclusively show that the prisoner is entitled to no relief” under § 2255, I will deny the motion without an evidentiary hearing.

Johnson seeks relief on the grounds that: (1) his rights under the Speedy Trial Act, 18 U.S.C. § 3161, were violated; (2) a confession he gave to a government agent was coerced; (3) he was denied effective assistance of counsel; (4) the United States Bureau of Prisons has not given him credit for certain time he spent in federal custody; and (5) he was improperly released and reincarcerated by the federal government after serving a state sentence.

Johnson’s first two allegations are not, in themselves, grounds for relief under § 2255. By pleading guilty, he forfeited his right to “raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” ' Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). Even if his speedy trial rights were violated and his confession coerced, he “may only attack the voluntary and intelligent character of the guilty plea” by showing that he did not receive competent advice from counsel. Tollett, 411 U.S. at 267, 93 S.Ct. at 1608. See also, e.g., Smith v. United States, 677 F.2d 39, 40 (8th Cir.1982); Franklin v. United States, 589 F.2d 192, 194 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (1979); Abram v. United States, 398 F.2d 350 (3d Cir.1968).

I must therefore consider whether Johnson was competently advised by counsel. A defendant claiming ineffective assistance “must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). With respect to Johnson’s rights under the Speedy Trial Act, the record reveals that his attorney filed a motion to dismiss because of delay. At the guilty plea proceedings, Johnson acknowledged that he had instructed his attorney to withdraw the motion even though he recognized the possibility that he could prevail. The record thus establishes that Johnson was advised of his speedy trial rights and chose not to pursue them.

[1194] Johnson’s confession was not specifically discussed at the guilty plea proceedings. The mere possibility that Johnson’s counsel did not properly advise him concerning the ramifications of an involuntary confession does not, however, require me to hold an evidentiary hearing on the question of counsel’s effectiveness. As the Supreme Court held in McMann v. Richardson, 397 U.S. at 769-71, 90 S.Ct. at 1448, even a misjudgment by counsel as to the admissibility of a confession does not invalidate a guilty plea unless counsel’s actions were completely outside “the range of competence demanded of attorneys in criminal cases.” Id. at 771, 90 S.Ct. at 1449. Johnson has made no specific allegations which would support a finding of such incompetence. Further, the record shows considerable justification for a decision to plead guilty. At the guilty plea proceedings, the Assistant United States Attorney gave a detailed recital of the government’s evidence, stating that the charges against Johnson were based upon his sales of heroin to government agents. Johnson acknowledged that the government could present such evidence and that he had committed the acts charged. In light of the record and Johnson’s failure to present detailed facts to support his claim of attorney ineffectiveness, an evidentiary hearing is not warranted. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977); Smith v. United States, 677 F.2d 39, 41 (8th Cir.1982); United States v. Baylin, 531 F.Supp. 741, 754 (D.Del.), remanded on other grounds, 696 F.2d 1030 (3d Cir. 1982).

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United States v. Johnson, 624 F. Supp. 1191, 1986 U.S. Dist. LEXIS 30434 (E.D. Pa. 1986).

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