Johnson v. USA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
ANDREW TRAVIS JOHNSON,
Petitioner,
v. No. 5:24-CV-00220-H
No. 5:23-CR-00012-H-BV-1
UNITED STATES OF AMERICA,
Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING MOTION TO VACATE AND CERTIFICATE OF APPEALABILITY
Andrew Travis Johnon filed a motion to vacate, set aside, or correct his conviction and
sentence under 28 U.S.C. § 2255. Civ. Dkt. No. 1; Cr. Dkt. No. 86. United States Magistrate
Judge Amanda ‘Amy’ R. Burch made findings, conclusions, and a recommendation (FCR) on
Johnson’s one remaining claim in this case. Civ. Dkt. No. 25. Johnson filed objections. Civ.
Dkt. No. 26. As explained below, the Court accepts and adopts the FCR and denies Johnson’s
motion to vacate.
1. Background
On March 24, 2023, Johnson pled guilty to three counts of bank fraud, one count of
aggravated identity theft, and one count of engaging in monetary transactions in property
derived from unlawful activity. Cr. Dkt. No. 12. On March 29, 2023, the Court adjudged him
guilty and later sentenced him to a total of 180 months’ imprisonment. Cr. Dkt. No. 18.
In his pro-se motion to vacate, Johnson raises several constitutional claims. On January
13, 2025, the Court denied all of Johnson’s claims except one—that his attorney, William
McMutrrey, was ineffective because he did not file a direct appeal on his behalf, as requested.
Civ. Dkt. No. 6. The Court referred this ineffective-assistance claim (IAC) to the Judge Burch,
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instructing that she appoint Johnson counsel, conduct a hearing, and issue a report and
recommendation on his claim. Dkt. No. 7.
Judge Burch appointed Federal Public Defender Qunicy Ferrill to represent Johnson and
held an evidentiary hearing. Civ. Dkt. Nos. 8, 23. Judge Burch has since issued a thorough
FCR, recommending that the Court deny Johnson’s IAC claim on the ground that Johnson has
not shown that McMurrey’s performance was deficient under Strickland v. Washington, 466 U.S.
668 (1984). In particular, after hearing the live testimony of Johnson and McMurrey, Judge
Burch found that Johnson failed to demonstrate by a preponderance of the evidence that he
asked McMurrey to file a notice of appeal and that McMurrey failed to consult with him
regarding an appeal. Civ. Dkt. No. 25 at 10. In doing so, Judge Burch credited “McMurrey’s
clear testimony” over the “waffling testimony” of Johnson, who, at the hearing, made several
inconsistent statements about whether he had specifically asked McMurrey to file a notice of
appeal on his behalf. Jd. at 9-10. Mr. Ferrill filed objections on Johnson’s behalf. Civ. Dkt.
No. 26.
2. Legal Standard
If a party files written objections to the magistrate judge’s report and recommendation,
the district judge shall “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28 U.S.C.
§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). In contrast, the judge reviews any unobjected-to
findings, conclusions, and recommendations for plain error. See Duarte v. City of Lewisville, Tex.,
858 F.3d 348, 352 (Sth Cir. 2017) (citations omitted)
Parties filing objections must specifically identify those findings objected to. See Nettles v.
Wainwright, 677 F.2d 404, 410 (Sth Cir. 1982). “Frivolous, conclusive or general objections
need not be considered by the district court.” Jd. at 410 n.8.
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3. Discussion
Johnson objects to Judge Burch’s recommendation that the Court deny Johnson’s IAC
claim on two grounds. Having conducted a de novo review of the relevant portions of the FCR
and the record in this case and considered the applicable law, the Court, as explained below, |
finds that Johnson’s objections are improper and otherwise have no merit.
First, Johnson objects to Judge Burch’s finding that “McMurrey adequately consulted
with [him] regarding an appeal.” Civ. Dkt. No. 26 at 4. Although Johnson admits in his
objection that McMurrey consulted with him regarding his decision to appeal or not appeal, he
now argues that, for several reasons, “[McMurrey’s] advice regarding the decision” was not
reasonably effective. Jd. at 5.
Johnson’s objection exceeds the scope of Judge Burch’s findings and the claims raised in
his motion to vacate. Citing to Johnson’s motion to vacate, Judge Burch specifically points out
that “Johnson does not claim that McMurrey failed to consult with him regarding an appeal.”
Civ. Dkt. No. 25 at 8. The Court agrees. In his pro-se motion, Johnson does not allege that
McMurrey failed to consult with him regarding appeal or improperly advised him as to whether
he should file one. Civ. Dkt. No. 1. Although Judge Burch states that “Johnson has failed to
show that McMurrey violated any constitutional duty to consult regarding an appeal,” she
apparently does so only to the extent necessary to provide the legal context for Johnson’s claim
that McMurrey had a constitutional duty to file an appeal on his behalf. Civ. Dkt. No. 25 at 8;
see United States v. Pham, 722 F.3d 320, 323-24 (5th Cir. 2013) (explaining that, if counsel has
consulted with a defendant about an appeal, then counsel performs deficiently by failing to
follow the defendant’s express instructions with respect to an appeal). Although Judge Burch
determined that McMurrey consulted with Johnson regarding an appeal, she did not make any
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findings that address the substantive nature of their discussions or the propriety of any advice
that McMurrey may have given Johnson.
Second, Johnson makes a one-sentence, general objection to Judge Burch’s factual
finding that he did not ask McMurrey to file an appeal on his behalf. Civ. Dkt. No. 26 at 6.
Citing a select excerpt from the evidentiary-hearing transcript, Johnson objects on the ground
that he testified that he did tell McMurrey to file an appeal and never told McMurrey that he did
not want to appeal. Jd. However, Johnson does not object to or attempt to refute Judge Burch’s
statement that he provided “waffling testimony” on this matter at the evidentiary hearing. Nor
does Johnson object to Judge Burch’s determination that McMurrey’s testimony was more
credible than his. Instead, Johnson merely cites evidence that supports his original position.
4. Conclusion
The Court conducted an independent review of the record in this case, including the
evidentiary-hearing transcript, and reviewed the unobjected-to portions of Judge Burch’s FCR
for plain error, and found none. Additionally, for the above-stated reasons, the Court overrules
Johnson’s objections to Judge Burch’s FCR and expressly accepts and adopts her findings,
conclusions, and recommendation. The Court therefore denies Johnson’s claim that McMurrey
was ineffective for not filing an appeal on his behalf.
For these reasons and those stated in its January 13, 2025 order denying Johnson’s other
claims, Dkt. No. 6, the Court denies Johnson’s motion to vacate. Dkt. No. 1. In addition, after
considering the record and relevant authorities in this case, the Court denies a certificate of
appealability under Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing Section 2255 Proceedings for the United States District Court, and 28 U.S.C.
§ 2253(c). For the same reasons stated here and in the Court’s January 13, 2025 order, Johnson
fails to show that reasonable jurists would find (1) this Court’s “assessment of the constitutional
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claims debatable or wrong,” or (2) “it debatable whether the petition states a valid claim of the
denial of a constitutional right” and ‘debatable whether [this Court] was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court will enter judgment accordingly.
So ordered.
Dated March {X_, 2026. sao h
Zo
JAMS WESLEY HENDRIX
Unfted States District Judge
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