                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2008

Johnson v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3930




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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 06-3930


                                   ERIK JOHNSON,
                                              Appellant

                                          v.

                          UNIT ED STATES OF AMERICA


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Civil No. 05-cv-02507)
                District Judge: The Honorable William G. Bassler


                            Argued: September 25, 2008


               Before: BARRY, AMBRO and JORDAN, Circuit Judges

                           (Opinion Filed: October 6, 2008)




Lawrence C. Hersh, Esq. (Argued)
Suite 105
17 Sylvan Street
Rutherford, NJ 07070-0000

Counsel for Appellant
John F. Romano, Esq. (Argued)
George S. Leone, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-0000

Counsel for Appellee


                                         OPINION




BARRY, Circuit Judge

       Following a jury trial at which he did not testify, Erik Johnson was convicted of

two counts of drug trafficking and sentenced to life imprisonment.1 We affirmed his

conviction and sentence. See United States v. Johnson, 89 Fed. Appx. 781 (3d Cir. 2004).

He subsequently filed a petition under 28 U.S.C. § 2255 claiming, among other things,

that he was denied effective assistance of counsel because his trial counsel “did not

advise [him] that he had the ultimate authority to decide whether to take the stand and

testify.” (A33.) According to Johnson, but for this error “[t]here is a reasonable

probability that [he] would have taken the witness stand and directly rebutted each and

every material fact presented through the perjured testimony of Ms. Latifa Shaheed and

the other witnesses, whose ‘credibility’ was material to the jury verdict and [his]



   1
     Specifically, Johnson was convicted of one count of conspiracy to distribute and
possess with intent to distribute more than one kilogram of heroin and more than five
kilograms of crack cocaine, in violation of 21 U.S.C. § 846, and one count of distributing
and possessing with intent to distribute heroin, in violation of 21 U.S.C. § 841.

                                             2
sentence.” (A50.) In opposing his petition, the government submitted the Affirmation of

Johnson’s trial counsel, which stated:

       I reviewed with Johnson his right to testify on his own behalf. I informed
       Johnson that . . . he could not be forced to testify at trial, but that, in the
       event he chose to do so, he had every right to take the stand and testify on
       his own behalf. I discussed several advantages and disadvantages of this
       potential strategy, and, after considering the matter, Johnson knowingly
       elected to refrain from testifying at trial.

(A162.) The District Court found Johnson’s claim to be frivolous and denied the petition

without a hearing, explaining, as relevant here, that, given the “lack of specificity” in the

petition, “in combination with the Affirmation by counsel,” the petition and records in the

case showed conclusively that Johnson was not entitled to relief. (A10.)

       Johnson filed a timely notice of appeal which we construed as a request for a

certificate of appealability under 28 U.S.C. § 2253(c)(1). We granted the request, but

only as to (1) whether the District Court erred in summarily denying without a hearing

Johnson’s claim that trial counsel rendered ineffective assistance by failing to advise him

that he had the ultimate authority to decide whether to testify, and (2) whether he is

entitled to relief on the merits of that claim. We review the denial of a § 2255 petition

without a hearing for abuse of discretion. United States v. Thomas, 221 F.3d 430, 437 (3d

Cir. 2000). A district court must “accept the truth of the movant’s factual allegations

unless they are clearly frivolous on the basis of the existing record,” and it “is required to

hold an evidentiary hearing ‘unless the motion and files and records of the case show

conclusively that the movant is not entitled to relief.’” United States v. Booth, 432 F.3d

                                               3
542, 545-46 (3d Cir. 2005) (citations omitted). “[V]ague and conclusory allegations

contained in a § 2255 petition may be disposed of without further investigation by the

District Court.” Thomas, 221 F.3d at 437. We will affirm.

       To prevail on his ineffective assistance of counsel claim, Johnson was required to

show both that his trial counsel was deficient, i.e., unreasonable under prevailing

professional standards, and that he was prejudiced by his counsel’s deficiency. Id. at 546.

Prejudice is established when it has been shown that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

       The District Court found that the record conclusively showed that Johnson failed

to establish prejudice: “[a]lthough Petitioner states that the result of the proceeding could

have been different had he testified, he fails to explain what facts he could have rebutted

and why the alleged perjured testimony was material to his conviction by the jury.”

(A10.) The District Court was undoubtedly correct. Johnson’s vague and conclusory

claim that his testimony would have rebutted “every material fact” and every adverse

witness falls well short of establishing a “reasonable probability” that, had he testified,

“the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

The District Court did not abuse its discretion in so concluding and, given that




                                              4
conclusion, was not required to consider the deficiency prong of the Strickland test.2 Nor,

we add, are we.

       We nonetheless believe it worthy of mention that Johnson also failed to show that

trial counsel was deficient because counsel did not tell him, in haec verba, that he,

Johnson, had the “ultimate authority” to decide whether to testify. Surely implicit if not

explicit both before the District Court and in Johnson’s brief on this appeal is the fact that

he has taken no issue with any statement in counsel’s Affirmation, thereby conceding that

counsel told him of his right to testify on his own behalf and of the advantages and

disadvantages of electing to do so, and that he knowingly elected not to take the stand.

Any doubts as to this fell away during oral argument when, in response to our questions,

appellate counsel confirmed that the very narrow issue before us is whether trial counsel

was also required to tell Johnson, in the precise words that Johnson suggests, that Johnson

had the “ultimate authority” to decide whether to testify and because those words were

not used, counsel was deficient. We know of no such language requirement, and see no

reason to impose one now.3

       We will affirm the order of the District Court denying the petition without a

hearing.


   2
      Neither was it necessary for the District Court to consider whether the evidence at
trial was as “overwhelming” as the government believes it to be. See Appellee’s Br. at 8,
22.
   3
      We stress the importance of the concession that, despite Johnson’s assertion that trial
counsel did not tell him that he had the “ultimate authority” to decide whether or not to
testify, counsel did tell him that it was his — Johnson’s — decision to make. In other
words, the Affirmation of counsel on this point is effectively undisputed.

                                              5
