United States District Court, D. Utah, Central Division
DARRELL R. JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM DECISION AND ORDER
SAM SENIOR JUDGE
Darrell R. Johnson, pursuant to 28 U.S.C. § 2255, has
filed a Motion to Vacate, Set Aside, or Correct his Sentence.
The related criminal case is United States v. Johnson,
2:15cr128 DS. Mr. Johnson claims that his counsel was
ineffective at sentencing because counsel failed to petition
the court for a reduction of Mr. Johnson's sentence for
the time that he was in state custody. He argues that because
the State initially charged him with two firearm cases that
are the underlying charges in his federal case, he should
receive credit with the Bureau of Prisons for the time he
served in state custody.
petitioner raising an ineffective assistance of counsel claim
carries a ‘heavy burden.'” Bullock v.
Carver, 297 F.3d 1036, 1046 (10th Cir. 2002). To
establish ineffective assistance of counsel, a defendant must
satisfy the two part test of Strickland v.
Washington: 1) the defendant must show that his
counsel's performance was deficient, and 2) the defendant
must demonstrate that the deficient performance prejudiced
the defense so as “to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Strickland v. Washington, 466 U.S. 667-68 (1984). In
order for Mr. Johnson to prevail on his motion, he must
establish both prongs of the Strickland test.
United States v. Carr, 80 F.3d 413 (10th Cir. 1996).
prove that counsel's performance was deficient, 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.” Strickland at 687. Furthermore,
the defendant must show that counsel's performance fell
below an objective standard of reasonableness. Id.
at 688. “Judicial scrutiny of counsel's performance
must be highly deferential.” Id. at 689.
“[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
Id. at 690.
overriding question under the first prong of
Strickland is whether, under all the circumstances,
counsel performed in an objectively unreasonable
manner.” Bullock v. Carver, 297 F.3d 1036,
1046 (10th Cir. 2002).
Two presumptions inform our objective reasonableness inquiry.
First, we always start the analysis that an attorney acted in
an objectively reasonable manner and that an attorney's
challenged conduct might have been part of a sound trial
strategy. Second, where it is shown that a particular
decision was, in fact, an adequately informed strategic
choice, the presumption that the attorney's decision was
objectively reasonable becomes “virtually
Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir.
reviewing an ineffective assistance of counsel claim, we must
make every effort ‘to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time.'”
Id. at 1052. “[I]nquiry into counsel's
conversations with the defendant may be critical to a proper
assessment of counsel's investigation decisions, just as
it may be critical to a proper assessment of counsel's
other litigation decisions.” Strickland at
establish prejudice under Strickland, a defendant
must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. Id. at 694.
“A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id.
“[A] court need not determine whether counsel's
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies.” Id. at 697. “If it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, . . . that course should be
Johnson asserts in his 2255 motion that he spent 281 days in
state custody on the “state gun offenses.” ECF
No. 1 at 10. The state record does not show this to be the
case. Mr. Johnson was initially charged in the Third District
Court of Utah on February 10, 2015, for possession of a
dangerous weapon by a restricted person for conduct that
occurred on February 9, 2015. See ECF No. 4-1 at 2.
Mr. Johnson was also charged in the Third District Court of
Utah for possession of a dangerous weapon by a restricted
person for conduct that occurred on February 20, 2015. ECF
No. 4-2 at 2. On February 23, 2015, Mr. Johnson was booked on
warrants issued in both of these state cases. On March 20,
2015, the State of Utah moved to dismiss both of the state
cases, which involved conduct for which Mr. Johnson was
charged federally in the underlying criminal case on March
Johnson asserts that he was in custody continuously from the
date of arrest to the date of sentencing. However, his time
in state custody, for which he seeks credit for time served,
only adds up to be a total of 25 days, and only nine of those
days were served by Mr. Johnson between March 11, 2015 (the
date he was indicted in this court) and March 20, 2015 (the
date the two state cases were dismissed). Therefore, at issue
here are only nine days of custody, not the 281 days that Mr.
Johnson claims he served on the “state gun
offenses.” ECF No. 1 at 10.
described above, in order to succeed on his 2255 motion, Mr.
Johnson must demonstrate both that his counsel's
performance was deficient and that the deficiency resulted in
prejudice to Mr. Johnson. Strickland at 697.
According to the Presentence Report, Mr. Johnson's
Guideline Provisions were based upon a total offense level of
19, criminal history category VI, which created a guideline
range of 63 to 78 months imprisonment. PSR ¶ 62. Counsel
for Mr. Johnson negotiated a very favorable 11(c)(1)(C)
agreement that recommended a sentence of 63 months
imprisonment, the low end of the Guideline range, with the
option to withdraw his plea if the Court did not sentence him
to the 63-month agreed upon sentence. (Doc. 15 ¶12
(b)(2).) Mr. Johnson's counsel did not request credit for
the nine days Mr. Johnson served in state custody for the gun
charge he pleaded guilty to in this Court. This is not
deficient performance, as it is an extremely minimal amount
of time for counsel to consider in light ...