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Johnson v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Ocala Division

April 10, 2017

Phillip K. Johnson Jr., Petitioner,
v.
Secretary, Department of Corrections, and Florida Attorney General, Respondents.

          MEMORANDUM AND ORDER

          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. For the following reasons, the Petition is denied.

         BACKGROUND

         In April 2009, a jury convicted Petitioner Phillip K. Johnson, Jr. of attempted robbery with a firearm. The trial court sentenced Johnson to 30 years in prison.

         Johnson subsequently filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800. The postconviction court denied the motion and Johnson appealed that decision. The appellate court reversed and ordered that Johnson be resentenced to fifteen years' imprisonment with a mandatory minimum of ten years after the government conceded that there had been a sentencing error. Johnson v. State, 44 So.3d 209 (table) (Fla. Dist. Ct. App. 2010).

         In August 2011, Johnson filed for postconviction relief under Florida Rule of Criminal Procedure 3.850, this time claiming ineffective assistance of counsel. The postconviction court held an evidentiary hearing on some of Johnson's claims, and eventually denied relief on all grounds. The appellate court affirmed. Johnson v. State, 130 So.3d 233 (table) (Fla. Dist. Ct. App. 2013).

         In March 2014, Johnson timely filed the instant Petition. Johnson claims that he received ineffective assistance of counsel because his trial counsel (1) made an inadequate motion for judgment of acquittal, (2) failed to object to the filing of an amended information, (3) failed to object or move to suppress hearsay identification testimony, (4) failed to object to suggestive police identification procedures, and (5) failed to request a jury instruction on abandonment. (Pet.'s Supp. Mem. (Docket No. 2) at 4-20.)

         DISCUSSION

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., a federal court's “review is greatly circumscribed and is highly deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).

         Indeed, AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citation omitted). 28 U.S.C. § 2254, which applies to persons in custody pursuant to a state-court judgment, provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Further, § 2254 states that “a determination of a factual issue made by a State court shall be presumed to be correct.” Id. § 2254(e)(1). The burden is on the petitioner to “rebut[] the presumption ...


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