United States District Court, W.D. Kentucky, Louisville
CHARLES R. SIMPSON III, SENIOR JUDGE
matter is before the Court on the pro se motion of
the Movant, Taishaun Johnson, to vacate his sentence and
conviction pursuant to 28 U.S.C. § 2255 (DN 78), and
Johnson's motion for extension of time (DN 96). The
motion to vacate was referred to the magistrate judge for
findings of fact and recommendations for the disposition of
Johnson's motion. DN 79. The United States was ordered
to, and did, file a response (DN 80), to which Johnson
replied (DN 84).
November 9, 2018, the magistrate judge filed his proposed
findings of fact, conclusions of law, and recommendations. DN
94. The magistrate judge has recommended that Johnson's
motion be denied, and that a certificate of appealability
also be denied. On November 19, 2018, Johnson filed a motion
for an extension of time purportedly to file objections to
the magistrate judge's report. DN 95. Thereafter, Johnson
filed his objections to the magistrate judge's report. DN
96. Johnson having already filed objections to the
magistrate's report, the Court will
GRANT the motion for extension of time up
until the day Johnson filed his objections. The Court now
considers Johnson's objections and makes a de
novo determination as to those portions of the report to
which objection was made.
Factual Background and Procedural History
objects to the magistrate's finding of fact that
Johnson's then wife, “Tonya Johnson was a convicted
felon, a fact which the National Instant Criminal Background
Check system detected in short order.” DN 94, at 1. The
Court agrees that this factual finding is misrepresentative
and will supplement the Report's findings of fact.
February of 2013, Johnson's then wife, Tonya Johnson,
purchased a rifle, filled out the required ATF form, and took
the rifle home. DN 63, at 5. The National Instant Criminal
Background Check System denied her transaction, because the
available information indicated that she had previously been
convicted of a felony. Id. Upon receiving this
information, an ATF agent and a detective with the
Campbellsville, Kentucky Police Department went to the
address Ms. Johnson had listed when she purchased the rifle
to speak with her and recover the firearm if it was still in
Ms. Johnson's possession. Id.
the law enforcement agents arrived at Johnson's home,
Johnson was leaving and informed the officers that Ms.
Johnson wasn't home, but the rifle was still in the
house. Id. Johnson continued his conversation with
the officers, informing them that he also had firearms in the
house, and he also had past felony convictions. Id.
The officers asked Johnson to sign a consent to search form.
Id. After Johnson signed the form, the subsequent
search of his home and car yielded ten firearms. Id.
jury returned a three-count Superseding Indictment charging
Johnson and Ms. Johnson, with Counts 1 and 3 pertaining to
Johnson. Count 1 charged Johnson with aiding and abetting Ms.
Johnson in making false statements to a licensed firearms
dealer, in violation of 18 U.S.C. § 924(a)(1)(A) and
924(a)(2). Id. at 3. Count 3 charged Johnson with
being a felon knowingly possessing ammunition and firearms,
in violation of 18 U.S.C. § 922(g)(1) and 942(a)(2).
Id. at 3-4.
subsequently pleaded guilty to Count 3 of the Superseding
Indictment, under a plea agreement stating that at the time
of sentencing the United States would move to dismiss Count
1. DN 57, at ¶ 10. In the plea agreement, Johnson waived
his right to directly appeal and contest or collaterally
attack his conviction or sentence, “[u]nless based on
claims of ineffective assistance of counsel or prosecutorial
misconduct.” Id. at ¶ 12. The parties
also stipulated to the factual basis for the plea, including
that Johnson “consented to a search of his
residence.” Id. at ¶ 3.
matter was set for sentencing and a Presentence Investigation
Report (“PSR”) was ordered. According to the PSR,
Johnson's total offense level was 25, and his criminal
history category was IV. DN 63, at ¶ 63. The guideline
imprisonment range was determined to be 84 months to 105
months. Id. This Court sentenced Johnson to seventy
(70) months incarceration. DN 67.
Court makes a de novo determination of the proposed
findings or recommendations of the magistrate to which the
parties have objected. 28 U.S.C. § 636(b)(1)(C); Fed. R.
Crim. P. 59(b)(3). To the extent that no objection is filed,
the arguments are waived. Thomas v. Arn, 728 F.2d
813, 815 (6th Cir. 1984), aff'd, 474 U.S. 140,
§ 2255 motion now before the Court, Johnson asserts two
grounds. First, Johnson asserts that his conviction was
obtained as a result of evidence obtained illegally in
violation of the Fourth Amendment to the United States
Constitution. Second, Johnson asserts that his counsel was
ineffective for ...