United States District Court, E.D. New York
MEMORANDUM & ORDER
ERIC N. VITALIANO, District Judge.
Petitioner Pearlie Johnson is before the Court, pro se, on his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the writ is denied and Johnson's petition is dismissed.
After a jury trial in 2008, Johnson was convicted of possessing ammunition and, on another occasion, a firearm, having previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Specifically, Johnson was convicted of possessing ammunition in connection with a shooting that occurred on Staten Island, on July 25, 2005, (Count One), and possessing a firearm and ammunition in connection with a second shooting, also on Staten Island, on December 4, 2005, (Count Two).
Johnson was indicted on January 25, 2007. (United States v. Johnson, No. 07-cr-0057 ("2007 Dkt."), Dkt. No. 9.) He was initially represented by retained counsel, Manuel Ortega, Esq., and pleaded not guilty. (2007 Dkt. Nos. 5, 10.) On January 25, 2008-with trial set to commence ten days later, on February 4, 2008-Ortega was terminated as counsel and replaced by Criminal Justice Act counsel David Weiss, Esq. following a Curcio hearing. A relatively straight forward case, Weiss advised the Court that he would be ready on ten days' notice. (Tr. dated Feb. 4, 2008 at 2, 9.) That Weiss got to work quickly was soon evident. On January 27, he filed a motion to suppress certain of Johnson's statements to law enforcement officers as well as certain photographic evidence. His omnibus filing also included a motion to sever counts one and two for trial and a motion requesting additional discovery. (2007 Dkt. Nos. 24, 25, 27.) In the following days, he filed additional pretrial motions and opposed the government's motions. (See, e.g., 2007 Dkt. Nos. 28, 32, 34, 36, 38, 41.)
In one of its motions, the government sought to introduce evidence that Johnson had committed an uncharged shooting on December 9, 2005, and that the firearm used in that shooting was the same one from which the ammunition used in the July 25, 2005 shooting had been fired. (2007 Dkt. No. 17.) The government argued that this evidence was admissible under Federal Rule of Evidence 404(b), because (1) it indicated that Johnson possessed the ammunition used in the July 25 shooting, and, thus, was probative of identity as to count one; and (2) it demonstrated that he had access to firearms generally, which was relevant to both counts. Johnson opposed on the ground that the proposed evidence would be unfairly prejudicial and of little probative value, because the fact that Johnson used a particular gun on December 9 was not actually probative of his mere possession of it five months earlier in July. (See 2007 Dkt. No. 28.) On February 5, 2008, the Court ruled that the evidence of the December 9, 2005 shooting would be admissible under Rule 404(b) as to both counts of the indictment. (Tr. dated Feb. 5, 2008 at 37-39.) The Court noted that, to the extent that there was potential for prejudice to Johnson, the Court would give a limiting instruction to the jury and to restrict the government's ability to comment on the evidence. (Id. at 38).
Jury selection proceeded on February 4. The trial commenced on February 6, and continued over four trial days. (2007 Dkt. Nos. 39, 48.) The government presented evidence that, on the afternoon of July 25, 2005, Johnson was driving a red Hummer, registered to his sister, with at least two passengers inside. After leaving a McDonald's drive-through, the Hummer cut off another car driven by Paul Jamrogiewicz. An altercation ensued, at the conclusion of which the driver of the Hummer fired three shots at Jamrogiewicz, one of which hit him in the back. When police arrived on the scene, they recovered three 9-milimeter shell casings and one bullet. Subsequently, the Hummer was found abandoned about four miles away, with a McDonald's soda cup and hamburger nearby.
At trial, Jamrogiewicz testified he and the driver of the Hummer had stared at one another and that he remembered the driver's "cold stare" and his eyes. (Tr. at 30.) However, he acknowledged that, following the incident, police showed him a photo array that included Johnson's photograph, but he did not recognize any of the individuals in the array as the driver of the Hummer. Nonetheless, on direct examination, Jamrogiewicz identified Johnson-by pointing to him in court-as the driver of the Hummer. (Tr. at 42.)
The government also presented evidence that, on December 4, 2005, Johnson shot Trai Kaufman in an elevator in an apartment building on Staten Island. Kaufman testified about the shooting at trial, as did Jovan Jenkins, a friend of Johnson's who had been with him that night, Kerry Constantino, an eyewitness, and a police officer to whom Johnson later confessed that he had shot Kaufman. (See Tr. 164.) Video surveillance footage of the apartment building lobby and elevator where the shooting took place was played for the jury. In the footage, Johnson was shown wearing a distinctive white and brown fur coat. It showed him exit an elevator in the lobby with four friends as Kaufman was about to enter an adjoining elevator, and then, just after Kaufman entered his elevator, it showed Johnson turning and shooting Kaufman three times.
In line with the Court's pretrial evidentiary ruling, the government also presented evidence that, on December 9, 2005, Johnson shot Byron Lee and Donald Bracey in the Stapleton neighborhood of Staten Island. (See Tr. 241-45.) Expert testimony demonstrated that the gun used in that shooting was the same one from which the bullets were fired in the July 25, 2005 shooting. (See Tr. 322.)
The jury convicted Johnson on both counts. This Court sentenced him to 80 months' imprisonment on count one and 120 months' imprisonment on count two, with the sentences to be served consecutively, three years of supervised release on each count, to be served concurrently, and a $200 special assessment. (2007 Dkt. No. 63)
Represented by new counsel, Johnson appealed his conviction, seeking reversal on two grounds: this Court's denial of his motion to sever the two counts of the indictment; and this Court's decision to admit evidence of the December 9, 2005 shooting. The Second Circuit affirmed the judgment of conviction on February 11, 2010. See United States v. Johnson, 365 Fed.App'x 242 (2d Cir. 2010). He submitted a petition for a writ of certiorari to the Supreme Court of the United States, which was denied on June 14, 2010. See Johnson v. United States, 130 S.Ct. 3441 (2010). Johnson's § 2255 petition was filed on September 26, 2011.
Read liberally, the instant habeas petition raises the following claims: (1) Jamrogiewicz was improperly allowed to identify Johnson in court; (2) evidence that Johnson committed the uncharged December 9, 2005 shooting was improperly admitted at trial; (3) two of the prosecution's witnesses gave perjured testimony; (4) the federal prosecutor who led the case against Johnson engaged in "overzealous" prosecution; and (5) Johnson's trial attorney provided ineffective assistance. The government moves to dismiss the petition on the ground that it was filed beyond the limitations period set forth in 28 U.S.C. § 2255. Alternatively, if the petition is timely, the government argues that all of Johnson's claims lack merit and should be dismissed.
Standard of Review
A person who has been convicted and is currently a federal prisoner may petition the sentencing court to correct, vacate, or set aside the sentence under 28 U.S.C. § 2255. The grounds for relief are very limited. The§ 2255 court may only grant relief only if it concludes: "(1) that the sentence was imposed in violation of the Constitution or laws of the United States;' (2) that the court was without jurisdiction to impose such sentence;' (3) that the sentence was in excess of the 'maximum authorized by law;' or (4) that the sentence is otherwise subject to collateral attack."' Hill v. United States, 368 U.S. 424, 426-27 (1962). Restated, collateral relief under§ 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill, 368 U.S. at 428). Because Johnson is proceeding prose at this stage, "his petition will be construed liberally and interpreted to raise the strongest arguments it suggests." Paez v. U.S., Nos. 11-cv-2688, 08-cr-0823-03, 2012 WL 1574826, at *1 (S.D.N.Y. May 3, 2012) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
I. Timeliness of the ...