USA v. JOHNSON

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
UNITED STATES OF AMERICA
v. Case Nos.: 5:19cr89/TKW/MAL
5:23cv86/TKW/MAL
CORY JOHNSON,
Defendant.
_____________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant Cory Johnson’s Motion under
28 U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence and supporting
memorandum of law, ECF No. 66, and the Government’s response in opposition.
ECF No. 69. After a review of the record and the relevant law, I recommend that the
motion be dismissed as untimely, and alternatively denied on the merits.
I. BACKGROUND
On December 17, 2019, a federal grand jury charged Johnson in a five-count
indictment with a cocaine distribution conspiracy (Count One), two counts of
distribution of cocaine (Counts Two and Three), one count of possession with intent
to distribute cocaine (Count Four), and one count of possession of a firearm in
furtherance of a drug trafficking crime (Count Five). ECF No. 1.
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On March 6, 2020, represented by retained counsel Barry Beroset, Johnson
entered a guilty plea to all counts. ECF Nos. 19-21, 58. According to Johnson’s
Presentence Report (PSR), the applicable advisory guidelines imprisonment range
was 135 to 168 months on the first four counts, plus 60 months consecutive as to
Count Five. ECF No. 33, PSR ¶ 123. The court adopted the Government’s
recommendation to sentence Johnson below this range and imposed a sentence of
60 months on Count One and 120 months on Counts Two, Three and Four, all to run
concurrently; followed by a consecutive 60 month term on Count Five. ECF No. 59
at 5, 14; ECF Nos. 40, 41.
Johnson appealed, represented by CJA counsel Michael Ufferman. Mr.
Ufferman file a brief pursuant to Anders v. California, 386 U.S. 738 (1967). ECF
No. 63. The Eleventh Circuit granted counsel’s motion to withdraw, finding no
issues of arguable merit, and affirmed Johnson’s convictions and sentences on May
10, 2021. Id.
Johnson has now filed for post-conviction relief, claiming (1) he is “actually
innocent” of the § 924(c) offense (Count Five of the indictment); (2) counsel was
ineffective because he failed to investigate the circumstances of the offense; and (3)
appellate counsel was ineffective for filing an Anders brief. The Government argues
the motion is subject to dismissal as time barred and that it is without merit.
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II. UNTIMELINESS
A. Johnson’s motion is untimely
Title 28 U.S.C. ' 2255(f) imposes a one-year time limitation on the filing of
motions under this section. The one-year period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the petitioner was prevented from making
a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review;
or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. ' 2255(f).
The Eleventh Circuit affirmed Johnson’s convictions and sentences on May
10, 2021. ECF No. 63. A judgment is considered “final” under § 2255(f)(1) once the
90-day period to petition for certiorari expires, even if the defendant does not seek
certiorari. Clay v. United States, 537 U.S. 522, 533 (2003). Johnson did not file a
petition for certiorari. As such his conviction became final once the 90-day period
for doing so expired, on Monday August 9, 2021. Kaufmann v. United States, 282
F.3d 1336, 1338 (11th Cir. 2002). Thus, a timely filed motion under § 2255(f)(1)
must have been filed on or before August 9, 2022. Johnson’s motion was filed over
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six months later, on February 21, 2023. ECF No. 66 at 12. It is facially untimely
under § 2255(f)(1), and none of the other provisions apply. Recognizing this,
Johnson argues that his untimely filing should be excused.
B. Johnson has not alleged facts show he is entitled to equitable tolling
Equitable tolling of the statutory deadline for filing a § 2255 motion is
appropriate if the untimeliness is the result of “extraordinary circumstances that are
both beyond [the defendant’s] control and unavoidable even with diligence.”
Johnson v. United States, 340 F.3d 1219, 1226 (11th Cir. 2003). Johnson has the
burden show that he is entitled to equitable tolling. Id. Johnson has not met his
burden.
1. COVID-19 pandemic
One of Johnson’s proffered reasons for his untimely filing is the COVID-19
pandemic. ECF No. 66-1 at 3-4. Delays because of COVID-19 can be extraordinary
circumstances for the purpose of equitable tolling, but only if a prisoner can
demonstrate unique circumstances personal to him that warrant equitable tolling. See
Rush v. Sec’y, Fla. Dep’t of Corr., No. 21-10218-C, 2021 WL 3134763, at *1 (11th
Cir. June 22, 2021) (denying certificate of appealability because no reasonable jurist
would find a petition filed 42-days late subject to equitable tolling where petitioner
“could not show extraordinary circumstances, as his circumstances were not
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different than any other prisoner attempting to access legal resources, as they all
were subject to COVID-19 protocols.”); Powell v. United States, No. 21-12432-J,
2022 WL 2811987, at *1 (11th Cir. Feb. 8, 2022) (denying certificate of
appealability because “[u]nder this Court's precedents, lockdowns and similar
limitations imposed because of the COVID-19 pandemic were not extraordinary
circumstances which by themselves justify equitable tolling.”). Johnson has not
alleged facts showing that his unique circumstances during the pandemic were
“extraordinary” such that equitable tolling would apply.
2. Ignorance of the law, jail house lawyer, law library
In addition to the pandemic, Johnson explains that because of his lack of legal
training, he had to rely on a jailhouse lawyer to help. ECF no. 66-1 at 3-4. The first
jailhouse lawyer left and so Johnson sought out another one. Id. Johnson states he
was unaware of the one-year period for filing a § 2255 motion had limited access to
the law library. Id.
“[P]ro se litigants, like all others, are deemed to know of the one-year statute
of limitations.” Outler v. United States, 485 F.3d 1273, 1283 n.4 (11th Cir. 2007)
Johnson’s pro se status or ignorance of the law does not warrant equitable tolling.
Johnson v. United States, 544 U.S. 295, 311 (2005) (neither pro se status nor
procedural ignorance excuses untimely filing); Perez v. Florida, 519 F. App’x 995,
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997 (11th Cir. 2013) (neither lack of education nor related confusion or ignorance
about the law excuses untimely filing). Law-library restrictions caused by the
COVID-19 pandemic are treated no differently. See Johnson v. United States, No.
21-60184-CR, 2023 WL 5015393, at *3 (S.D. Fla. Aug. 7, 2023) (collecting cases).
Therefore, Johnson’s lack of legal training, ignorance of the limitations period,
reliance on others, and lack of library access do justify equitable tolling in this case.
C. Johnson does not have a valid claim of actual innocence
Johnson claims he is actually innocent of the § 924(c) offense (Count Five),
and that this serves as a gateway to excuse his untimely filing. ECF No. 66 at 10. He
does not have a valid claim of actual innocence.
A movant who files an untimely § 2255 motion may overcome the statute of
limitations if he can show “actual innocence.” McQuiggin v. Perkins, 569 U.S. 383,
386, 392 (2013); Rozzelle v. Sec’y, Fla. Dept. of Corrs., 672 F. 3d 1000, 1011 (11th
Cir. 2012). This is a term of art. “‘[A]ctual innocence’ means factual innocence, not
mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623B24 (1998).
To present a viable claim of actual innocence, Johnson is required to “(1) to
present ‘new reliable evidence ... that was not presented at trial,’ Arthur, 452 F.3d at
1245 (quoting Schlup, 513 U.S. at 324, 115 S.Ct. at 865), and (2) to show ‘that it is
more likely than not that no reasonable juror would have found petitioner guilty
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beyond a reasonable doubt’ in light of the new evidence.” Rozzelle, 672 F.3d at 1011.
As ground for his claim of actual innocence, Johnson states that the single
firearm he was charged with possessing in Count Five was present in his truck at the
time of his arrest by accident or mistake, and he did not possess it “in furtherance”
of a drug trafficking crime. ECF No. 66-1 at 6. He explains that the truck had been
parked for a month since it was last used, and he did not realize the weapon was
there until law enforcement searched the vehicle. Id. Therefore, Johnson asserts, the
Government could not prove he knowingly possessed a firearm in furtherance of a
drug trafficking crime because the weapon was not there to “promote or facilitate
the crime.” Id. at 6-7.
First, this information is not in any sense “new.” Johnson told the court at
sentencing that he “forgot” about the gun in the console of his vehicle when he went
to conduct the cocaine sale, and it was just something that “stay[ed] in there all the
time” and “all of them had one.” ECF No. 59 at 17. Thus, he was aware of it when
he chose to enter his plea.
Furthermore, Johnson’s claim of “innocence” is more akin to a theory of
defense that a reasonable jury could have chosen to accept or reject had he elected
to go to trial. Cantu v. Atty. Gen. of Mont., No. CV 20-58-M-DLC-KLD, 2021 WL
3934329, at *3 (D. Mont. June 8, 2021) (rejecting actual innocence claim which
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“rests upon ... interpretation and after the fact conclusions based upon information
that was known to [petitioner] all along.”). If he had gone to trial, a reasonable jury
could have rejected Johnson’s argument that he did not possess the firearm in
furtherance of a drug trafficking crime. Furthermore, Johnson admitted to the facts
underlying Count Five and gave up his right to trial when he entered his guilty plea.
Under these circumstances, Johnson does not have a valid claim of actual innocence.
III. CLAIMS FAIL EVEN IF TIMELY
Johnson raises three grounds for relief in his section 2255 motion: (1) he is
“actually innocent” of the § 924(c) offense; (2) counsel was ineffective because he
failed to investigate the circumstances of the offense; and (3) appellate counsel was
ineffective for filing an Anders brief.
A. Ground One: actual innocence
As discussed previously, Johnson does not have a valid claim of actual
innocence. Furthermore, Johnson cannot bring a freestanding claim of actual
innocence because his case is not a capital case. Amodeo v. FCC Coleman - Low
Warden, 984 F.3d 992, 1002 & n.5 (11th Cir. 2021) (noting circuit precedent
rejecting freestanding actual innocence claims in noncapital cases).
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B. Ground Two: ineffective assistance of counsel
In ground two, Johnson claims his attorney was ineffective “for failure to
investigate petitioner’s claims or the circumstances of the offense.” ECF No. 66 at
5. He explains that his attorney was ineffective by:
• Failing to file a motion to suppress the gun in the car
• Failing to discover and argue that the gun was present by accident or mistake
• Failing to impeach the confidential informant
• Failing to investigate and defend
Id. at 8.
Johnson, who entered a guilty plea to resolve his case, does not claim that his
guilty plea was involuntary. In fact, it was noted at sentencing that Johnson knew he
had a potential defense to Count Five but Johnson did not want to go to trial. ECF
No. 59 at 7-8.
“A defendant who enters a plea of guilty waives all non-jurisdictional
challenges to the constitutionality of the conviction, and only an attack on the
voluntary and knowing nature of the plea can be sustained.” Wilson v. United States,
962 F.2d 996, 997 (11th Cir. 1992). Thus Johnson’s claims in Ground Two were
waived when he entered a guilty plea.
Even if Johnson’s claims had not been waived, Johnson has not met his burden
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of alleging facts that would show he is entitled to relief. As for the motion to
suppress, Johnson has not alleged any valid basis for suppression. Johnson’s claim
that the gun was in the vehicle “by accident or mistake” and was unrelated to the
drug trafficking crime is a factual matter for argument, not a basis to suppress law
enforcement’s discovery of the weapon. See United States v. Ochoa, 941 F. 3d 1074,
1091 (11th Cir. 2019) (whether a defendant possessed a firearm by “accident or
mistake” is a jury question, allowing evidence to be introduced as to this issue);
United States v. Byron, No. 22-12022, 2023 WL 8627839, at *5-*6 (11th Cir. 2023)
(same).
Second, Johnson claims counsel was ineffective because he did not “discover
and present evidence that the gun was in the vehicle by accident or mistake.” ECF
No. 66-1 at 8. He does not explain what additional evidence counsel should have
discovered with respect to the presence of the gun. The facts regarding the gun’s
presence were known to Johnson. Because Johnson entered a guilty plea and
admitted his guilt, there was no need for counsel to present any evidence as to this
issue.
Third, Johnson claims counsel failed to investigate the alleged inaccuracies
contained in the indictment and failed to impeach the confidential informant (CI)
who, he claims, provided inaccurate and unreliable information. ECF No. 66-1 at
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10-11. He states the CI was “known drug dealer and user.” Id. at 10. However,
Johnson offers only a conclusory assertion that the CI’s “unreliable statements led
to dismissal of cases against multiple other defendants,” without explaining how that
affects the reliability of the evidence of the monitored controlled buys in this case.
Id.; see ECF No. 20 at 1-10 (Statement of Facts describing law enforcement
monitoring of transactions between CI and Johnson).
Finally, Johnson contends trial counsel failed to investigate and present
defenses, prepare and file unspecified pre-trial motions, and “advance [unspecified]
readily identifiable information” that Johnson asked him to pursue. Id. at 11.
“[C]counsel owes a lesser duty to a client who pleads guilty than to one who decides
to go to trial.” Wofford, 748 F.2d 1505, 1508 (11th Cir. 1984). Johnson’s bare,
conclusory allegations of ineffective assistance are insufficient to show his lawyer
performed deficiently. See Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320,
1333B34 (11th Cir. 2012). He has not met his burden of alleging facts that would
show trial counsel was ineffective as to any of his claims.
C. Ground Three: ineffective assistance of appellate counsel
Johnson claims that his appointed appellate counsel provided ineffective
assistance when he failed to raise the “potentially meritorious claims” Johnson raises
in this motion. ECF No. 66 at 6. To prevail on a claim of ineffective assistance of
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appellate counsel, Johnson must show that appellate counsel’s performance was
objectively unreasonable, and that he was prejudiced, in that there is a reasonable
probability that but for this performance, he would have won his appeal. Smith v.
Robbins, 528 U.S. 259, 285-86 (2000).
The only claim Johnson specifically identifies that counsel should have raised
on appeal is his “actual innocence” claim. ECF No. 66-1 at 11. However, counsel’s
failure to raise an issue that was not raised or preserved in the trial court cannot be
deemed deficient. Pinkney v. Secretary, Dep’t of Corrs., 876 F. 3d 1290, 1297 (11th
Cir. 2017) (citing cases). Additionally, Johnson waived potential defenses when he
admitted his guilt, and he has not alleged facts that would establish appellate counsel
was ineffective.
IV. CONCLUSION
An evidentiary hearing is not necessary to resolve Johnson’s claims because
“the motion and files and records conclusively show that the prisoner is entitled to
no relief.” See 28 U.S.C. § 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th
Cir. 2015).
First, Johnson’s motion is subject to dismissal as time barred. He has not met
his burden of showing he is entitled to invoke the doctrine of equitable tolling.
Second, his knowing, voluntary and intelligent plea bars him from raising pre-plea
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issues. Finally, even if these procedural hurdles were excused, Johnson has not
alleged facts that would tend to establish that either trial or appellate counsel was
ineffective for failing to raise any of the arguments he raises in his motion. Thus, his
motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 should
be dismissed as untimely, or alternatively, denied.
V. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that
“[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant,” and if a certificate is issued “the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C.
' 2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues
a certificate of appealability. Rule 11(b), § 2255 Rules.
After reviewing the record, the court finds no substantial showing of the denial
of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483B84
(2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is
also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: “Before entering the final order,
the court may direct the parties to submit arguments on whether a certificate should
issue.” If there is an objection to this recommendation by either party, that party may
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bring this argument to the attention of the district judge in the objections permitted
to this report and recommendation.
Based on the foregoing, it is respectfully RECOMMENDED:
1. The motion to vacate, set aside, or correct sentence (ECF No. 66) be
DISMISSED as untimely, and alternatively DENIED.
2. A certificate of appealability be DENIED.
DONE on March 6, 2026.
s/ Midori A. Lowry
Midori A. Lowry
United States Magistrate Judge
NOTICE TO THE PARTIES
The case was referred to a magistrate judge for the issuance of all preliminary
orders and any recommendations to the district court regarding dispositive matters.
See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
Objections to these proposed findings and recommendations must be filed within
fourteen days of the date of the Report and Recommendation. Any different deadline
that may appear on the electronic docket is for the court’s internal use only and does
not control. An objecting party must serve a copy of its objections on all other
parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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