Opinion
CASE No. 1:05CV0101.
April 13, 2005
MEMORANDUM OF OPINION AND ORDER
This matter is before the Court upon Jamie T. Johnson's ("Johnson") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. On November 4, 2003, he pled guilty to conspiracy to possess and transfer counterfeit federal reserve notes in violation of 18 U.S.C. § 371, possession of counterfeit equipment in violation of 18 U.S.C. § 474 and possession of counterfeit federal reserve notes in violation of 18 U.S.C. § 474. Case No. 1:03CR0050. Johnson was sentenced to a term of imprisonment of 60 months incarceration on each count to run concurrent to each other, three years supervised release, and a $300.00 special assessment.
Johnson has presented the following four claims for relief: (1) trial counsel was constitutionally ineffective for not filing a notice of appeal when the petitioner asked to appeal his sentence as to the amount of time he received and the fact that he did not receive all of his jail time credit; (2) trial counsel was ineffective for not raising the issue of enhancements that were used to boost his sentence under Blakely v. Washington, ___ U.S ___ 124 S.Ct. 2531 (2004), United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); (3) trial counsel was ineffective for not objecting to the fact that the petitioner was not credited for two months in the city jail; and (4) trial counsel was ineffective for not arguing and objecting to the grouping on the criminal history and that it was overstated.
In analyzing claims of ineffective assistance of counsel, the Supreme Court has established a two-prong test against which counsel's performance must be evaluated. Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must establish that counsel's performance was so substandard that it "fell below an objective standard of reasonableness." Second, it must be established that there was a reasonable probability that counsel's errors affected the outcome of the trial. Id. at 687. As to a guilty plea, the petitioner must show that but for counsel's deficient performance he would not have plead guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). When a defendant enters a guilty plea, due process requires that the plea be a voluntary, knowing, and intelligent act, done with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748 (1970).
Johnson claims that he asked his attorney to file a notice of appeal as to the enhancements and amount of time he received and the fact that he did not get all of his jail credit time. In Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), the United States Supreme Court held that "[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Failure to file an appeal, in disregard of the defendant's request, is ineffective assistance of counsel regardless of whether the appeal would have been successful or not. Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). See Carrion v. United States, 2004 WL 1859346 at * 1 (6th Cir. Aug. 17, 2004). The government, in its argument, connects the first ground for relief with the second ground wherein Johnson raises Booker v. United States, a case that had not yet been decided. Johnson's request for his attorney to file an appeal, although premised on the fact that he received an enhancement, was apparently not based on Booker. He did not intend to argue that any fact allowing a sentence enhancement must be supported by a finding of a jury or be admitted by the defendant. Whether or not he actually requested that his attorney file a notice of appeal is an issue of fact requiring a hearing.
Johnson also raised an issue at to jail credit time in the first ground for relief. That issue will be included in the Court's discussion of the third ground for relief.
The United States Supreme Court recently held in United States v. Booker, 125 S.Ct. at 742, that the mandatory nature of the federal guidelines rendered it incompatible with the Sixth Amendment's guarantee to the right to a jury trial. The Court reaffirmed its holding set forth in Apprendi v. New Jersey, 530 U.S. at 490, that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id. 125 S.Ct. at 756.
Booker and Blakely do not apply to Johnson. The ruling applies only to future cases and not retroactively to cases completed before the decisions were made. Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005) ; United States v. McReynolds, 397 F.3d 479, 480 (7th Cir. 2005); In re Anderson, 396 F.3d 1336 (11th Cir. 2005); Tuttamore v. United States, 2005 WL 234368 *1 (N.D. Ohio Feb. 1, 2005); Patterson v. United States, 2004 WL 1615058 at * 4 (E.D. Mich. Jul. 2, 2004). Johnson was sentenced on January 26, 2004, five months prior to the June 24, 2004 decision in Blakely. Booker was decided a year later. Counsel cannot be considered ineffective for failing to realize that a change in the law would later occur. Thus, Johnson's second ground for relief is without merit.
Johnson argues that his counsel was ineffective because he did not object to the fact that he was not credited for the two months he spent in the Bedford, Ohio City Jail "on this case" even though it was included in the trial court's order. A defendant is entitled to sentencing credit toward "the service of imprisonment for any time he has spent in official detention prior to the date the sentence commences," 18 U.S.C. § 3585(b). But it is the Attorney General, through the Bureau of Prisons, and not the district court that is authorized pursuant to § 3585(b) to grant a defendant credit for time served prior to sentencing. Paz-Zamudia v. United States, 1998 WL 773995 at * 1 (6th Cir. Oct. 15, 1998) See United States v. Wilson, 503 U.S. 329, 335 (1992); United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996). A prisoner must first seek administrative review of the computation of this credit, 28 C.F.R. §§ 542.10-542.16 (1997), and exhaust administrative remedies, before he can obtain judicial review pursuant to 28 U.S.C. § 2241. United States v. McBride, 1994 WL 108989 at *2 (6th Cir. Mar. 29, 1994). See United States v. Wilson, 503 U.S. at 335; McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993). Johnson's third ground for relief is without merit.
In his fourth ground for relief, Johnson contends that his counsel was ineffective for not arguing that his criminal history was overstated because previous cases were merged for purposes of sentencing or prosecution. Johnson has not shown how any prior state sentences or cases were merged so as to have the convictions considered once rather than separate for each case.
Accordingly, for the foregoing reasons, Johnson's motion to vacate, set aside or correct sentence is denied as to the second, third and fourth grounds for relief. The first ground for relief will be referred to a magistrate judge for a hearing and to submit proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
IT IS SO ORDERED.
CERTIFICATE OF SERVICE
A copy of this Memorandum of Opinion and Order was filed electronically this 13th day of April, 2005. Notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. A copy of the foregoing Memorandum of Opinion and Order was also sent by United States mail on April 13, 2005 to Jamie T. Johnson, 3564 Strathavon Road, Shaker Heights, Ohio 44120.