# JOHNSON v. United States

> District Court, D. New Jersey · September 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10273797

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10273797

## How later opinions describe it (automated extraction)

- holding that any reduction in sentence constitutes substantial prejudice for purposes of Strickland analysis
- holding that any inaccurate statements by defense counsel about sentencing were irrelevant because the defendant was advised of the maximum sentence, the Guidelines range applicable to his case, and the advisory nature of the Guidelines during the plea colloquy.

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

:
KARIM JOHNSON, :
: Civ. No. 19-13355 (RMB)
Petitioner :
:
v. : OPINION
:
UNITED STATES OF AMERICA, :
:
Respondent :
:

RENÉE MARIE BUMB, United States District Judge
This matter comes before the Court upon Petitioner Karim Johnson's
(“Johnson”) Amended Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 (Am. § 2255 Motion, Docket No. 3) and Respondent’s answer in
opposition to the motion. (Answer, Docket No. 11.) Johnson did not file a reply brief.
For the reasons discussed below, this Court will deny grounds two, three and four of
the amended § 2255 motion, and reserve on ground one, recusing for further
proceedings with substitute counsel with assignment to a new District Judge.
I. BACKGROUND
On March 26, 2018, Johnson pleaded guilty in U.S. v. Johnson, Criminal Action
No. 18-144 (RMB) (D.N.J.), to a one-count Information charging him with conspiracy
to distribute and to possess with intent to distribute 28 grams or more of crack cocaine,
contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and in violation of 21 U.S.C. § 846.1
(Plea Hearing Tr., Crim Docket No. 39.) Johnson was represented by Stanley O.
King, Esq. ("Attorney King"). The presentence investigation report ("PSR") prepared

by the United States Probation Office ("USPO") showed that the Government
developed evidence through, among other things, intercepted telephone calls,
controlled drug purchases, and pole camera surveillance, that from October 2016 to
June 2017, Johnson sold crack and furanyl fentanyl, marketed as heroin, to customers
and a confidential source on and around the 1700 block of Filmore Street. (PSR ¶¶ 43-

59.)2 The Government uncovered further evidence that Johnson worked regular shifts
selling drugs on that block for a drug trafficking organization. (Id.)
As part of the plea agreement, the parties agreed that Johnson joined the drug
trafficking conspiracy, and that his relevant and readily foreseeable conduct involved
569.3 grams of crack and 141 grams of furanyl fentanyl. (PSR ¶ 69; and Plea

Agreement, Schedule A, ¶ 3, Crim Docket No. 25 at 6.) Based on his prior convictions
for controlled substance offenses, Johnson acknowledged that he might qualify as a
career offender under U.S.S.G. § 4B1.1, which would increase his adjusted offense
level to 31. (Id., ¶ 4.) Johnson partially waived his right to appeal if his sentence was

1 This Court will refer to the docket entries in U.S. v. Johnson, 18cr144 (RMB) (D.N.J.),
available at www.pacer.gov, as "Crim. Docket No." Page references are to the page
numbers assigned by the Court's case management electronic case filing system, CM-ECF.

2 The PSR is confidential and is not filed on the public docket. See United States v. Blanco, 884
F.2d 1577, 1578 (3d Cir. 1989) ("There is a general presumption that the courts will not
grant third parties access to the presentence reports of other individuals."))
2
within the Guidelines range based on an offense level of 31, except that he could
challenge the court’s determination of his criminal history category. (Plea Agreement,
Schedule A, ¶ 9, Crim. Docket No. 25 at 7.) The waiver in the plea agreement did not

prevent Johnson from bringing claims of ineffective assistance of counsel under § 2255.
(Id. at 4.) On March 26, 2018, this Court accepted Johnson's formal plea after a
thorough colloquy. (Plea Hearing Tr., Docket No. 39.)
At the sentencing hearing on July 25, 2018, the issue arose that the PSR
contained a finding by Dr. Gerald Cooke that Johnson suffered intellectual

impairments and was reading at a kindergarten level. ("First Sent. Tr.", Crim. Docket
No. 37 at 18-28.) The sentencing hearing was continued to obtain a supplemental
expert report by Dr. Cooke, in light of Johnson's apparently inconsistent statement at
during the plea colloquy that he read the plea documents. (Id.) When the sentencing

hearing continued on November 27, 2018, Dr. Cooke testified about his intellectual
and psychological testing and evaluation of Johnson. (“Second Sent. Tr.”, Crim.
Docket No. 38 at 8-63.) Attorney King and Johnson confirmed that Johnson fully
understood the plea agreement, did not wish to withdraw the guilty plea, and wished
to proceed with sentencing. (Id. at 73-76.)

This Court adopted the PSR and found that Johnson's offense level was 31 and
his criminal history category was VI, which produced a recommended Guidelines
range of 188 to 235 months. (Id. at 76-77.) After consideration of the relevant
sentencing factors under 18 U.S.C. § 3553, this Court granted a five-level variance,
3
resulting in an offense level 26 and a Guidelines range of 120 to 150 months. ((Second
Sent. Tr., Crim. Docket No. 38 at 137.) This Court imposed a prison sentence of 120
months, and varied upward to impose an eight-year term of supervised release. (Id. at

138.) Johnson did not appeal, but he filed a motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255 on June 3, 2019, and filed the present amended §
2255 motion on July 9, 2019. By order dated September 17, 2019, this Court directed
Attorney King to provide relevant information to the Government regarding
Johnson’s § 2255 claims. (Order, Docket No. 8). Attorney King submitted a

declaration pursuant to 28 U.S.C. § 1746, and the Government filed that declaration
(“King Decl.”, Exhibit J, Docket No. 11-10) as part of its answer to Johnson’s § 2255
motion.
II. STATUS CONFERENCE HEARING

On June 4, 2021, this Court appointed counsel, pursuant to 18 U.S.C. §
3006A(a)(2)(B), to represent Petitioner in an evidentiary hearing. (Order, Docket No.
12.) After Johnson's first appointed counsel withdrew, Ira M. Slovin, Esq. was
appointed on July 29, 2021. (Docket No. 16.) Attorney Slovin requested an in person
case status conference because it appeared that the matter could be resolved without

an evidentiary hearing. (Letter, Docket No. 18.) A status conference was held via
Zoom on March 30, 2022. (Docket No. 22.) After this Court's colloquy with Johnson,
which was procedural and hypothetical in nature, this Court recommended that
counsel speak privately with Johnson. Counsel, however, inadvertently disclosed his
4
communication with Johnson on the merits of ground one of the amended § 2255
motion. This disclosure was solely with respect to ground one of the amended § 2255
motion.

Unfortunately, this Court believes that the inadvertent disclosure before this
Court during the status conference renders it unable to provide an impartial hearing
on this one claim. Pursuant to 28 U.S.C. § 455(a), this Court will recuse itself from
determining solely ground one of the amended § 2255 motion, so that it might be heard
by an impartial decision-maker who has not been exposed to a communication

between the petitioner and his counsel on the substance of the claim. Further, this
Court will docket only the minutes of the March 30, 2022 status conference and will
maintain the transcript of the status conference in chambers, marked as confidential.
This Court will order appointment of substitute counsel under 18 U.S.C. § 3006A(a)(2)
for ground one of the amended § 2255 motion, and direct the case to be randomly

assigned before a new District Judge. This Court will, however, address grounds two
through four of the amended petition below without an evidentiary hearing because
"the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief" and grounds two through four do not deal with the substance
of the improvidently disclosed communication. 28 U.S.C. § 2255(b).

5
III. DISCUSSION
A. Legal Standard

A prisoner in federal custody may move to vacate, set aside, or correct his
sentence on the ground that the sentence was imposed in violation of the Constitution
or laws of the United States. 28 U.S.C. § 2255(a). Courts should liberally construe pro
se § 2255 motions. United States v. Delgado, 363 F. App’x 853, 855 (3d Cir. 2010). To
establish an ineffective assistance of counsel claim in violation the Sixth Amendment,

a defendant must demonstrate that (1) counsel’s performance was deficient; and (2)
counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). In order to establish deficient performance, a defendant must
show that counsel “made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Judicial scrutiny

of counsel’s performance must be highly deferential … a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” 466 U.S. at 689-90 (internal quotations omitted). Accordingly, counsel’s

“strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690-691.
To establish prejudice, a defendant must show that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
6
would have been different. A reasonable probably is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. “[A] verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one

with overwhelming record support.” Id. at 696.
“[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). “In
the context of pleas a defendant must show the outcome of the plea process would

have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012).
“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there
is a reasonable probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. Lack of prejudice
is independently sufficient to dismiss an ineffective assistance of counsel claim.

Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . .that course should be followed.”) Although
“sentencing does not concern the defendant's guilt or innocence, ineffective assistance
of counsel during a sentencing hearing can result in Strickland prejudice because any
amount of [additional] jail time has Sixth Amendment significance.’” Lafler, 566 U.S.

156, 165 (quoting Glover v. United States, 531 U.S. 198, 203 (2001)). To establish
prejudice, the petitioner must establish the reasonable probability of a shorter sentence.
United States v. Smack, 347 F.3d 533, 540 (3d Cir. 2003) (citing Glover, 531 U.S. 198

7
(2001) (holding that any reduction in sentence constitutes substantial prejudice for
purposes of Strickland analysis)).

B. Analysis
1. Ground Two: Guilty plea was not knowing, intelligent or
voluntary

In ground two of his amended § 2255 motion, Johnson asserts that his guilty
plea was not knowing, intelligent or voluntary because this Court did not ask him
about the nature of the offense, his participation in the offense and did not explain the
elements of conspiracy. (Am. § 2255 mot., Docket No. 3.) Johnson claims his counsel
was ineffective for failing to raise this claim on appeal, but due to the partial appellate
waiver in the plea agreement, this Court will construe his claim as alleging counsel
failed to provide effective assistance during the plea colloquy. Respondent opposes
relief based on Johnson's failure to allege prejudice. (Answer, Docket No. 11 at 9-14.)
Even if Johnson had alleged that he would not have entered the guilty plea because he
did not understand the offense charged, Respondent submits that Johnson had no

viable defense at trial based on the evidence proffered against him, and the only way
to reduce his sentencing exposure was to plead guilty. (Id. at 12.) Therefore, he cannot
establish prejudice.
For the reasons discussed below, this Court finds that counsel was not
ineffective by failing to object to the acceptance of Johnson's guilty plea because the

plea colloquy establishes that Johnson's plea was knowingly, voluntarily and
8
intelligently made. During the plea colloquy, and again at the sentencing hearing on
November 27, 2018, Johnson affirmed that he read with his counsel, understood, and
discussed the charges in the Information to which he pleaded guilty. (Crim. No. 18-

144, Plea Hearing Tr., Docket No. 39 at 5-7; Second Sent. Tr., Crim. Docket No. 38
at 73-76.) He affirmed that he had the opportunity to ask his counsel questions, and
that he asked all of the questions that he had. (Id.)
During the plea colloquy, this Court set out the charges in the Information and
discussed the potential penalties and application of the advisory sentencing guidelines

with Johnson. (Id. at 16-26.) Prior to Johnson providing the factual basis for his guilty
plea, Attorney King, to make clear that the conspiracy Johnson would plea to had
existed for a period of time before he joined the conspiracy, raised the issue of how to
phrase the question. (Crim. Action No. 18-144, Plea Hearing Tr., Docket No. 39 at

26-30.) After discussion with counsel for both parties, this Court posed the following
questions to Johnson.
THE COURT: … Mr. Johnson, on a date occurring in or
after November 2016 through on or about June 13, 2017,
did you knowingly conspire and agree with other
individuals named in the information to distribute and to
possess with intent to distribute 28 grams or more of
cocaine base, in other words, crack cocaine?

THE DEFENDANT: Yes.

THE COURT: Did you use the nickname "Chickie"
during this time frame?

THE DEFENDANT: Yes.

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THE COURT: And did members of the charged
conspiracy refer to you by that nickname?

THE DEFENDANT: Yes.

THE COURT: As part this drug conspiracy, did you
knowingly sell crack cocaine to customers on and around
the 1700 block of Filmore Street during the time period I
just asked you about?

THE DEFENDANT: Yes.

THE COURT: And as part of this drug conspiracy, did
you knowingly sell what you believed to be heroin to
customers on or around the 1700 block of Filmore Street
during the time period we just discussed?

THE DEFENDANT: Yes.

THE COURT: Do you agree that the substances sold as
heroin by members of the conspiracy to confidential
human sources working with the Federal Bureau of
Investigation were in fact predominantly furanyl fentanyl,
as determined by the laboratory testing conducted by the
Drug Enforcement Administration?

THE DEFENDANT: Yes.

THE COURT: On April 21, 2017 did you sell quantities of
crack cocaine and what you believed to be heroin to an
FBI confidential human source in exchange for $300
during a meeting with the source on the 1700 block of
South 6th Street, which is one block away from the 1700
block of Filmore Street?

THE DEFENDANT: Yes.

THE COURT: Did you profit from the sale of a controlled
substance as part of this conspiracy?

THE DEFENDANT: Yes.

10
THE COURT: Did you communicate with other members
of the conspiracy over the telephone to further the
conspiracy?

THE DEFENDANT: Yes.

THE COURT: Did you use the cellular telephone number
assigned (856) 481-5739 for this purpose?

THE DEFENDANT: Yes.

THE COURT: And do you agree that the conspiracy and
your relevant conduct in this conspiracy involved at least
569.3 grams of crack cocaine?

(Plea Hearing Tr., Docket No. 39 at 30-32.) Johnson then questioned the meaning of
"relevant conduct" because he was charged with possession with intent to distribute
only 28 grams of controlled substances. (Id. at 32-34.) The Court read the definition
of "relevant conduct" from the U.S. Sentencing Guidelines, and Johnson stated that
he understood, but he wanted to be sure that he was not pleading guilty to having been
personally involved with more than 28 grams. (Plea Hearing Tr., Docket No. 39 at 32-
34.) The Court gave Johnson time to confer with his attorney in private, and Johnson
then stated on the record that all of his questions were answered and that he
understood relevant conduct. (Id. at 34-35.)
The colloquy continued:
THE COURT: … Do you agree that the conspiracy and
your relevant conduct involved at least 569.3 grams of
crack cocaine?

THE DEFENDANT: Yes.

11
THE COURT: Do you agree that the conspiracy and your
relevant conduct involved at least 141 grams of furanyl
fentanyl?

THE DEFENDANT: Yes.

THE COURT: Are you guilty of conspiring with others to
engage in the distribution of and the possession with intent
to distribute 28 grams or more of crack cocaine as charged
in the information?

THE DEFENDANT: Yes.

THE COURT: And do you agree with all the stipulations
contained in Schedule A of the plea agreement?

THE DEFENDANT: Yes.

THE COURT: Are there any questions at all that you
have for me before I ask you to enter a formal plea?

THE DEFENDANT: No.

(Plea Hearing Tr., Docket No. 39 at 35-36.) After the Government entered its
proffer, Johnson formally pleaded guilty to the Information. (Id. at 37.) At the second
sentencing hearing, Mr. King read the plea documents to Johnson again and
explained everything to him. (Second Sent. Tr., Crim. Docket No. 38 at 73-76.)
Johnson then confirmed that Mr. King had read the plea documents with him,
answered all of his questions, and he wanted to plead guilty and continue with
sentencing. (Id.)
Based on the above record, this Court explained the nature of the offense to
Johnson, and Johnson explained his participation in the offense, to wit, joining a drug
trafficking organization for financial gain, where his role was selling a particular
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quantity and type of drugs at a specified time and place. Johnson alleges this Court
failed to define conspiracy. (Second Sent. Tr., Crim. Docket No. 38 at 73-76.) "In the

context of a drug conspiracy prosecution brought under 21 U.S.C. § 846," the elements
of conspiracy are: "'1) a shared unity of purpose, (2) an intent to achieve a common
illegal goal, and (3) an agreement to work toward that goal, which [the defendant]
knowingly joined.'" United States v. Claxton, 685 F.3d 300, 305 (3d Cir. 2012) (quoting
United States v. Boria, 592 F.3d 476, 481 (3d Cir. 2010)). The elements and meaning of
conspiracy were apparent in the plea colloquy, when Johnson affirmed that he agreed

with other individuals named in the Information to distribute and to possess with
intent to distribute 28 grams or more of crack cocaine during a particular timeframe
and at a particular location, that he profited from the sale, and that he communicated
by telephone with other members of the conspiracy for the purpose of furthering the

conspiracy.
Moreover, Johnson did not allege in his amended § 2255 motion what it is that
he misunderstood about the elements of conspiracy, the nature of the offense and his
participation in the offense, and how his misunderstanding caused him to plead guilty
instead of going to trial. In other words, he did not allege prejudice resulting from

counsel's failure to object to a deficiency in the plea colloquy. Regardless of his failure
to specifically allege prejudice, the Government's proffer of audio and video recordings
on which Johnson communicated with co-conspirators about selling drugs during the
time frame and at the location alleged in the Information, together with actual
13
recordings of his drug sales on that block, there is nothing in the record to suggest that
Johnson would reasonably have gone to trial rather than plead guilty with further
explanation of the charges during the plea colloquy. (See Government's proffer,

Answer, Exhibits A-H, Docket Nos. 11-1 to 11-8.) Johnson’s guilty plea afforded him
a three-level downward adjustment for acceptance of responsibility that he would not
have received if convicted at trial, a near certainty based on the abundance of evidence.
See, Evola v. Atty. Gen. of U.S., 190 F. App'x 171, 175 (3d Cir. 2006) (assuming
ineffective assistance with respect to the defendant's guilty plea, holding that the

petitioner failed to establish Strickland prejudice where there was overwhelming
evidence of his guilt in the record.) Therefore, this Court denies the ineffective
assistance of counsel claim in ground two of the amended § 2255 motion.
2. Ground Three: Counsel's deficient advice regarding
application of the Sentencing Guidelines

In ground three of the amended § 2255 motion, Johnson alleges that his counsel
provided misinformation about his sentencing exposure, and the sentencing
proceedings establish that he was not informed of his sentencing exposure at trial.
(Am. § 2255 motion, Docket No. 3 at 7.) Respondent opposes relief because Johnson
has not alleged that but for this vague allegation of error, he would have proceeded to
trial. (Answer, Docket No. 11 at 15-17.) Additionally, Respondent submits that even
“an erroneous sentencing prediction by counsel is not ineffective assistance of counsel

where, as here, an adequate plea hearing was conducted.” (Id. at 16, quoting United
14
States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007)). Moreover, for purposes of this
proceeding, Attorney King declared under oath that he had several discussions with
Johnson regarding both the statutory penalties and Guidelines ranges that would apply

based on various charges he might face if he pleaded guilty or went to trial. ("King
Decl."), Docket No. 11-10, Exhibit J, ¶¶ 6, 7.))
Even if this Court were to assume that Attorney King misinformed Johnson
about his sentencing exposure, this Court's colloquy cured any defects in counsel's
advice. See e.g., United States v. Delbridge, 504 F. App'x 145, 150 (3d Cir. 2012) (holding

that any inaccurate statements by defense counsel about sentencing were irrelevant
because the defendant was advised of the maximum sentence, the Guidelines range
applicable to his case, and the advisory nature of the Guidelines during the plea
colloquy.) First, this Court described how the USPO's investigation into whether

Johnson was a career offender might cause his adjusted offense level to jump as high
as 37. (Plea Hearing Tr., Docket No. 39 at 8.) Second, this Court advised Johnson
that the statute that he was pleading guilty to carried a mandatory minimum five-year
sentence and a statutory maximum of 40 years, and a 4-year minimum term of
supervised release, up to lifetime supervised release. (Id. at 16, 18.) Third, this Court

described the sentencing factors it would consider, the advisory nature of the
Sentencing Guidelines, and the USPO's role in suggesting the appropriate adjusted
offense level, including the consideration of relevant conduct. (Id. at 20-22.) Fourth,
this Court advised Johnson that it was impossible to know what the Guidelines range
15
would be until the USPO completed the PSR. (Id. at 22.) Most significantly, this Court
advised Johnson that he could not withdraw his guilty plea on the grounds that
Attorney King's prediction of his sentence was inconsistent with the ultimate sentence

imposed. (Id. at 23.)
At sentencing, after crediting Johnson's acceptance of responsibility, and
varying downward for the prison term and upward for the term of supervised release
based on the relevant sentencing factors, Johnson was sentenced to a 120-month term
of imprisonment and an 8-year term of supervised release. There is nothing

inconsistent with his Court's discussion of sentencing during the plea colloquy and
Johnson's was ultimate sentence. Thus, Johnson's claim in ground three of the
amended § 2255 motion fails to state a claim of ineffective assistance of counsel. See
e.g., Shedrick, 493 F.3d at 299 (holding the defense counsel's conjectures to his client

about sentencing are irrelevant where the written plea agreement and in-court guilty
plea colloquy clearly establish the defendant's maximum potential exposure and the
sentencing court's discretion.")
3. Ground Four: Counsel was ineffective for failing
to request a competency hearing

In ground four, Johnson claims that his counsel provided ineffective assistance
because he failed to request a competency hearing after obtaining Johnson's
intellectual and psychological evaluation, which suggested that Johnson had
intellectual impairments and difficulty maintaining concentration and attention.
16
(Am. § 2255 motion, Docket No. 3 at 8.) Respondent submits that this claim is
frivolous because Johnson does not claim that he was incompetent, the record does
not support a claim of incompetency, and this Court determined there were no

competency issues. (Answer, Docket No. 11 at 17-21.)
This Court will construe Johnson's claim as alleging that he was incompetent
to plead guilty. The record, however, conclusively shows that Johnson is not entitled
to relief on this claim. As discussed below, there is nothing in the record to support a
claim of incompetency. In the plea colloquy, Johnson advised this Court that he was

in the 11th grade in terms of his GED courses. (Plea Hearing Tr., Crim. Docket No.
39 at 4.) He affirmed that he had read and discussed the plea documents with
counsel, that he understood this Court's explanations during the plea hearing, and he
demonstrated his understanding by asking insightful questions about what might
happen at sentencing. (Plea Hearing Tr., Crim. Docket No. 39 5-26, 30-36.)

When Johnson first appeared for sentencing on July 25, 2018, Attorney King
stated, based on the forensic evaluation by Psychologist Gerald Cooke, that Johnson
could read only at a kindergarten level. (First Sent. Tr., Docket No. 37 at 18.) This
Court was concerned with the consequences of Dr. Cooke's opinion because
someone reading at a kindergarten level could not read the plea documents. (Id. at

18-21.) Attorney King explained how he had assured himself that Johnson
understood the plea documents by reading them together and repetitively explaining
the documents, and added that he had never questioned Johnson's competence to
17
engage in the proceedings. (Id. at 21-22, 27.) This Court stated that Johnson's legal
competence was not in question but expressed concern over his understanding of the
plea agreement, based on his reading level and intellectual impairments described in

Dr. Cooke's evaluation. (Id. at 22-23.) Therefore, this Court continued the sentencing
hearing and requested that Dr. Cooke prepare a supplemental report on the issue of
whether Johnson understood and accepted the terms of the plea agreement. (Id. at
22-23, 26.)

In his supplemental report, Dr. Cooke concluded:
Despite his disabilities, it is my opinion that [Johnson] is
competent to sufficiently understand the plea agreement
when discussed with him verbally (clearly he is unable to
read it), and then enter a plea. Also, he has been to court
many times over the years and does have a basic
understanding of the proceedings.

(Answer, Exhibit I, Docket No. 11-9.)

When the sentencing hearing continued on November 27, 2018, Dr. Cooke
testified about his performance of and the results from Johnson's intellectual and
psychological evaluation. (Second Sent. Tr., Crim. Docket No. 38 at 8-58.) At the
conclusion of Dr. Cooke's testimony, this Court instructed Attorney King to confer
with Johnson, read the plea agreement and Rule 11 form to him, and determine
whether he fully understood. (Id. at 69-71.) After conferring with Johnson, Attorney
King represented that Johnson understood the plea documents and proceedings and
wished to go forward with sentencing. (Id. at 73.) Johnson then confirmed that
18
Attorney King had read the documents to him, that he fully comprehended the plea
documents, and all of his questions were answered to his satisfaction. (Id. at 74-76.)
This Court acknowledged that there never was a basis to question Johnson's

understanding of the illegality and severity of his actions, in other words, his
competence. (Id. at 133.) Therefore, Johnson fails to state an ineffective assistance of
counsel claim. See e.g., Taylor v. Horn, 504 F.3d 416, 438 (3d Cir. 2007) (holding that
counsel's interactions with the defendant, paired with two expert opinions acquired

years earlier that the defendant was competent, "were sufficient for counsel to
reasonably forego a competency hearing"); see also Karenbauer v. Beard, 390 F. App'x
73, 80 (3d Cir. 2010) ("Karenbauer has failed to show prejudice under Strickland's
second prong because he cannot demonstrate a reasonable probability that he would
have been found incompetent if only his attorney had asked for a hearing.") This

Court denies ground four of the amended § 2255 motion.
IV. CERTIFICATE OF APPEALABILITY
Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken from a final order in a proceeding under 28 U.S.C. § 2255. 28 U.S.C.
§ 2253(c)(1)(B). A certificate of appealability may issue “only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
19
further.” Miller-El v.Cockrell, 537 U.S. 322, 327 (2003). For the reasons discussed above,
jurists of reason would not find it debatable that Johnson failed to establish a Sixth
Amendment ineffective assistance of counsel claim on grounds two, three and four of

his amended § 2255 motion.
V. CONCLUSION
For the reasons discussed above, pursuant to 18 U.S.C. 3006A(a)(2)(B), this
Court will appoint substitute counsel for ground one of the amended § 2255 motion

and recuse from determining ground one. This Court denies grounds two, three and
four of the amended § 2255 motion and denies a certificate of appealability.

An appropriate Order shall follow.

Dated: September 21, 2022
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273797. Public record. Not legal advice.