Johnson, Dietrick Lewis Sr.

_RECEi\/EI|N
Dietri¢k Lewis JOhHSOH Sr- COURTOFCRW.H\NALAPPEALS
#19831-078
Beaumont FCC Complex (Med) png 03 2@15
P.o. Box 26040 ‘
Beaumont; Texas 77720

' Ab@m@@§&a,@§ed<
IN THE COURT OF CRIMINAL APPEALS
P.O. Box 12308, Capitol Station v
Austin, Texas 7811 July 28th, 2015
RE: NO.WR~83,532~01
TO HONORABLE SAID,JUDGE'S:
l received notice giving respondent; "Collin County," 30

days to submit Designating Issues and Writ of Habeas Corpus,
pursuat to section 11.07.

Further, l have enclosed exhibits 1 thru 5.for your viewing,
to demonstrate the fiasco regarding prosecutorial misconduct,
and how l was tagged teamed by State and U.S. Assistant bistrict
Attorney's in my parallel case's respectfully.

l was charged in State and Federal Court's with crimes
that they (i.e.prosecutor's and defense counsel's) Hnéw£ludid not
»commit. However, these documents will demonstrate undisputed fact
ts of Vindictive prosecution, Brady violations and ineffective
assistance of counsel.

Prosecutor's knew the complainant gave perjured statement
~ of facts to the grand jury, withheld exculpatory evidence (Metro

pcs phone records) just to win a conviction. They committed

fraud on the Court by submitting a fraudulent objection March

(1)

18th, 2013, know it was false, just to get a U.S. Magistrate
Judge fact finding and recommendation denied. Further, setting
themselves up with slam dunks in both Court's, and sending an
innocent man to prison with a total of 160 years.

My girlfriend; April Blair, will be forwarding you copies
of letter's l sent to my defense counsel; "Rafael De La Garza,"
that l also forwarded to the Court to become a part of the re-
cord. l used this counsel in State and Federal Court's to re-
present me. I told him that he violated my 5th Amendment when
he did not investigate thersurrounding facts of my case, and
put up no defense. He stated; "is that your belief?" How he
-was not representing me on my appeal with the State, only in
federal Court to the`first charge.

l must say, these crimes never happened, the complainant
is a patient at "Bent Tree Psychiatric Facility in Dallas, TX,
and abuses the ADHD drug Aderol which is basically another form
of the street drug Meth. Yes, l have a criminal history, but
worked for Chrysler for 13 years before getting sick with Bladder
Cancer and forced to leave. l moved to Texas, worked for Solar
Turbines, over hauling turbine engines before going on to work
for the railroad. I had full custody of my only son. These
charges were brought against me due to this womans failed attempt
on my life.

l hire a Private Investigator; "Chet," at 214-914-0801,

trying to get hold of the very same phone records that the D.A.'s

(2)

suppressed, and l am still to thissday being denied a right

to my due process and equal protection of the law. l just want
to prove my innocence. `I told these three (3) women Assistant
District Attorney's in Dallas, Collin Countie's and with the
government, that you don't have to believe anything that I tell
you the phone records will speak for themselves. In this domes-
tic case, where this woman was scroned, knew about my past,

used that to her advantage by filing false police reports behind
my back. This woman profess to communicate with the dead, and
when she found out l was dating an Attorney, here l am.

We as human being tend to lie at times, but phone records
do not lie. l told them that you don't have to believe anything
l say, just compare the phone records to her signed statement
of facts that was given to the grand jury, and you'll see that
this woman is lying. Well, here is the docket sheet in my case
showing you that the prosecutor had the phone records, and saw
that this woman was lying, and still convicted me, why?

A prosecutor's job is to see that Justice is served with
fundamental~fairness, it was her duty to turn those phone records.
over to the court once she saw that this woman was lying. This
is why my application of 11.07 and designating issues never
made it to this Court, they just swept it under the rug protect-
ting this prosecutor.

In closing, in the alleged Stalking case in Dallas County,
I was hoping to have a full blown out Trial there, l have filed
a speedy trial Motion that has went unanswered, because l know
if you have an alleged stalking case, the first thing you're
going to do is get those phone records. They all played a game

of chess with my life, and this is not how our criminal JUSTICE

(3)

system suppose to work. I can only think of one thing here,
and that's the fact that they were bias because I'm from out
of town, from Detroit, and the color of my skin played a role

in Collin County.

Respe tfull: submitt

Dietrick L. John
#19831-078
Beaumont FCI Complex (Med)
P.O. Box 26040

Beaumont, Texas 77720

(4)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

401

UNITED STATES OF AMERICA¢
Plaintiff/

V_ cAsE NO. 4;12-cR-80

¢O'> cO'>

DIETRICK L. JOHNSON/

903

Defendant.

DEFENDANT JOHNSON'S MEMORANDUM
IN SUPPORT OF § 2255 MOTION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Defendant Dietrick L. Johnson ("Defendant"), pro
se, pursuant to 28 UrS.C. § 2255, and files this Memorandum in
_Support of his Motion to Vacate and Set Aside his conviction and'
sentence for violation of 18 U.S.C. § 924(c), using or carrying
a firearm during a carjacking offense, and states as follows:

On December 6, 1995, the Supreme Court held in BAILEY v.
UNITED STATES, 516 U.S. 137 (1995), that in order to convict a
defendant, he must have actually "used" or "carried"-a firearm
during and in relation to a car jacking offense. In Defendant
Johnson's case, his conviction does not meet the criteria as
described in the BAILEY decision, and thereforeL/it should be

vacated.

Il. '
SPECIAL STATEMENT TO THE COURT

Defendant is proceeding pro se in this action without assist¢
ance of`professional counsel, has no formal training in law, and

has limited access to the prison unit law library for the purpose

_1_

of researching relevant law dealing with the issues in this cause/

therefore, Defendant moves this Court to review this pleading

under the standard established in HAINES v. KERNER, 404 U.S. 519,

30 L. Ed. 26 652, 92 S.Ct. 594 (1972).

7 III.

GROUND ONE: Conviction obtained by use of evidence gained pursuant
to an Unconstitutional search and seizure,'4th, Sth,
and 14th violation.

The 4th Amendment violation occurred by U.S. Marshals conduct-
ing a warrant-less search of Petitioner's vehicle on March 26th,

2012. Fruit of Poisonous Tree Doctrine.

Petitioner refused to sign or give verbal consent on record, to

search his parked, locked vehicle that was on private property.
On, or around June 2012, Defense Counsel, "Denise S. Benson,"
came to Collin County jail trying to force Petitioner to sign a

consent form; Petitioner refused because he gave no one verbal

consent to search his vehicle stemming from the fact that there

was no record of a court or a judge who signed a warrant to
conduct a search.
The evidence, a Rohm, Model 36, .32 caliber revolver, Serial

No. 217456, was submitted to the Grand Jury during its investigat-

ion April thh/ 2012. This evidence was submitted to the Grand

Jury under false pretences, no Signed warrant by the Court or a

signed consent form from the Petitioner, was presented to the

Grand Jury before April 12th, 2012. The Petitioner signed a

Statement of Facts, after the fact, on July 19th, 2012.
Prosecutor's actions with [mis]-statement of important facts,

that impaired the Grand Jury's independent role during its

_2_

investigation. (Cause and Prejudices standard) GIGLIO v. U.S.,
405 U.S. 150 (1972).

Under 18 U.S,C. 3 924(c)(1), there was no "active employment

of the firearm recovered by U.S. Marshals," a use that makes the

firearm an operative factor in the relation to the predicate

offense. Therefore, the prosecution knew that the Grand Jury's

investigation and the charging instrument was void. The FOURTH

AMENDMENT violation was committed on the Petitioner by the
Government when the Government presented a false evidence that

was obtained by an illegal, warrant-less search, nor was there a

signed consent form from the Petitioner.

GRGUND TWO: Conviction obtained by a violation, Prosecutor failed
to disclose evidence that was favorable to the Defense
and the Defendant. (5th and 14th Amendment violations)
see E:Xhibit #1 ana Exhibit #5‘ uw\\¢.£"‘? ,

Relevant Facts: After reviewing the Petitioner's state
parallel DOCKET SHEETS Record, on April l5th, 2013, Assistant
District Attorney, "Cynthia A Walker," subpoenaed METRO PCS phone
records. Petitioner observed that this state district attorney
suppressed this same BRADY material, that Assistant U.S. Attorney
failed to disclose to the Court during trial court proceedings/

the Grand Jury, and the Petitioner. This favorable evidence, i.e.

METRO PCS phone records and text messages, that was withheld/

would of shown that the complaining witness, by [mis]-statements
of important facts to the Grand Jury's independent role which was
impaired during its investigation. Fed. R. Civ. P. 12(b)(6).
(Cause and Prejudice standard). GIGLIO v. U.S., 405 U.S. 150

(1972). 18 U.S.C.S. 1621, test of materiality in the Grand Jury's

_3_

investigation is whether false testimony has natural effect or
tendency to impede, influence, or dissuade Grand Jury from pursu-

ing its investigation. UNITED sTATEs v. sToNE, (1970, cA2 N.J.)

429 F.Zd 138 ... Intent, it is essential to subornation of per-
jury that suborner should have known or believed or have had good
reason to believe that the testimony given would be false, that
she should have known that the witness would testify willfully
and corruptly and with knowledge of falsity and that she knowingly
and willfully induced or procured witness to give such false test-

imony. PETITE v. UNITED sTATEs, (1959, cA4 M.D.) 262 F.za 738 ...

Petitioner was denied Due Process because of the improper
actions of Assistant U.S. Attorney, "Tracey M. Batson.“ Violation
of Fed. R. Civ. P. and Evidence Rule 404(b).

In Complainants Statement of Facts (DOCKET No. 4:12-CR-80),
that was presented to the Grand Jury, states: "that her and the
Petitioner met on a dating website in January of 2011; began
dating and that she ended their relationship in October or Nov-
ember of 2011. They got together briefly in December of 2011/
when she ended the relationship completely at that time.

Allegedly, soon after, the Petitioner started stalking and
harassing the Complainant by phone and texts. Between December

lBth, 2011 to January 16th, 2012, Complainant called police ten

(10) times, allegedly, due to Petitioner's harassment." METRO PCS
phone records and text messages will demonstrate undisputed of
facts, that on December 19th, 2011, during the A.M. hours, the

Complainant called the Petitioner and complained that her car was

making a noise. Complainant drove from the residence in Irving/

_4_

Texas, to where the Petitioner was a guest at 11511 Ferguson

Road, Unit 1644 in Dallas, Texas on the above mentioned date.

They (i.e. the Complainant and the Petitioner) both drove up the
street, less than a mile from where Petitioner was staying, tothe
AUTO ZONE store on Centerville Road and Highway 635. They pur-
chased parts for Complainant's 2003 Lincoln LS, that the Petition-
er is accused of carjacking. Complainant purchased a rear driver-.
side wheel caliber, rotar and rear brakes with her CHASE Bank
Debit Card with the Petitioner. This is in Dallas, or Garland,
Texas--Q§ December l9th, 2011.

METRO PCS phone records, undisputed of facts, show that the
Complainant changed her telephone number the very next day, QB\
December 20th, 2011, and thereafter, would call Petitioner §§-
peatedly, using STAR 69 to block out her new number from the
Petitioner. On January, 23rd, 2012, METRO PCS phone records will

demonstrate undisputed of facts, that when Complainant got off of

work at 3200 P.M., she called Petitioner again, STAR 69, to block
out her number from the Petitioner, just to come over to the
Petitioner's residence for sexual relations with him. METRO PCS
phone records will also demonstrate that [after] Complainant left
the Petitioner's residence for the said sexual relations--§he
called the Petitioner, again, STAR 69, and they talked for [120
minutes]. This is what both the state district attorney, and the

Assistant U.S. Attorney, observed. And they knowingly and intent-

ionally entered this suppressed evidence into the state and

federal Grand Jury's investigations under false pretences. see

BRowN v'. UNITED sTATEs, (1977 E:d. okia.) 442 F.supp. 150; UNITED

_5_

sTATEs v. GRE:EN, (1981, Dc Nev.) 532 F.supp. 381
GROUND THREE: Constructive denial of Counsel

Constructive denial of counsel, it is true all a defendant
'has to show in (one) prong test. The SIXTH AMENDMENT right to
assistance of defense counsel.

The Sixth Amendment provides in pertinent part" "In all crim-
inal prosecutions, the accused shall enjoy the right .... to have

the assistance of counsel for his defense." The 6th Amendment

right to defense counsel in felony prosecutions is a fundamental
right, binding on the States through the 14th Amendment.
. RELEVANT FACTS

Petitioner requested defense counsel, "Denise S. Benson,“ toi
file a motion to suppress evidence which was obtained illegally,
without a signed warrant by the Court or a signed consent form
by the Petitioner. Counsel communicated to the Petitioner that it
would be in his best of interest to plead guilty and therefore
she refused to suppress illegally obtained evidence. METRO PCS
phone records (call logs), AUTO ZONE part receipts in Petitioner's
vehicle was not obtained by counsel to show that the Complainant's
signed Statement of Facts given to the Grand dury was perjured.

HOOTS V. ALLSBROOK, 785 F.Zd 1214, 1221 (4th Cir. 1986)° COunSel

presented no defense and failed to investigate. GAINES v. HOPPER,
575 F.Zd 1147 (5th Cir. 1978).

The Supreme Court has uniformly found constitutional error
without any showing of prejudice when counsel was either totally
absent or prevented from assisting the accused during a critical

stage of the proceeding. BURDINE v. JOHNSON, 292 F.3d 336, 345

_6_

(5th Cir. 2001). When counsel knew the obtained evidence was

illegally obtained, without a signed warrant by the Court or a

signed consent form by the Petitioner. Petitioner was arrested

March 26th, 2012, Counsel "Denise S. Benson,' On/or around June
of 2012, came to visit Petitioner in Collin County jail, and tried

to get Petitioner to sign a consent form, stating that he gave

U.S. Marshals consent to search his vehicle. Petitioner refused,

Counsel got upset with the Petitioner and saying he was guilty.
This is what made Petitioner request for new counsel. l
(5th AMENDMENT Equal Protection of Law)

A plea of guilty in a federal criminal proceeding is a waiver
of federal constitutional rights-privilege against compelled
self-incrimination, trial by jury, and the right to confrontation.
In context of pleas of guilty, the Supreme Court has stated,
"waivers of constitutional rights not only must be voluntary, but
must be knowing, intelligent acts done with sufficient awareness
of the relevant circumstances and likely consequences." The
Supreme Court has also held that a federal criminal trial record
must support a finding that a plea of guilty was knowingly and
voluntarily made to be a valid plea under the United States
Constitution. Finally, the Court has suggested what constitutes
voluntariness in the context of a guilty plea or plea of guilty.

On the Court's DOCKET sheet, July 09th, 2012, Counsel, "Denise
S. Benson," filed a motion to suppress illegally obtained evidence/
(a clear violation of the 4th Amendment). The Counsel then comes
back to Collin County jail, eleven (ll) days later, July 23rd,

2012, with a plea agreement. The Court in WILLIAM v. WASHINGTON,

_7_

59 F.3d 673 (7th Cir. 1995) held: "An attorney has a duty to

familiarize himself with discovery materials provided by the

federal government." Because Counsel failed in this regard, her

behavior was not objectively reasonable under STRICKLAND.

GROUND FOUR: Conviction obtained by plea of guilty, which was
unlawfully induced, not voluntarily with understand-
ing the consequences of plea.

Petitioner did not know by pleading guilty in federal court1
that guilty plea would be used against him in his state parallel
case.

RELEVANT FACTS

The Assistant U.S. Attorney, and the State Assistant District
Attorneys' objection to report and recommendation 50 of Magistrate
Amos L. Mazzant's Fact Finding to Judge Marcia A Crone, to grant
Petitioner a right to withdraw his guilty plea , that the State
would not enter the federal guilty plea against the Petitioner in

his State parallel case. By those statements alone, Judge Crone

denied Magistrate Mazzant's Fact Finding and Recommendation to
allow Petitioner to withdraw his guilty plea. However, both the
Assistant U.S. Attorney, and the Assistant State District Attorney,

failed to disclose to Judge Crone that the State Assistant District

Attorney, Cynthia A. Walker, had already entered a copy of the
federal plea agreement into the State‘s evidence to use against
Petitioner. Months before, Ms. Walker postponed a 9:30 A.M. hearing
before Judge Scott J. Becker, until 1:30 P.M. that same day while
she drove to the Assistant U.S. Attorney's office to get a copy of
this federal plea agreement. She in return entered it as evidence

into_the Court's record in State District Court #219, Judge

_g_

Becker's courtroom and a hard copy given to State appointed
defense carmel Terri Daniel. n

At a hearing in federal court on January 30th, 2013, Assistant
U.S. Attorney had the State Assistant District Attorney active
participation, on video and audio, sitting at the table for
federal prosecuting attorneys. The same State Assistant District
Attorney who subpeonaed evidence (i.e. METRO PCS phone records and
text messages) and suppressed this same favorable evidence in
Petitioner's State parallel case April l5th, 2013, DOCKET sheet,
219th District Court, Case No. 219-81234-2012, page 3 of 5.
(vindictive prosecution)

The standard as to the voluntariness of guilty pleas must be
essentially that defined by Judge Tuttle of the U.S. Court of
Appeals for the 5th Circuit:

"[A] plea of guilty entered by one fully aware of the cons-

equences,including the actual value of any commitments made to
him by the Court, prosecutor, Or his own counsel, must stand

unless induced by threats (or promises to discontinue improper
harassment), misrepresentation (including unfulfillable prom-
ises), or perhaps by promises that are by there nature improper
as having no proper relationship to the prosecutor's business
(e.g. bribes)." BRADY v. UNITED STATES/ 397 U.S. at 755/

(quoting SHELTON v. UNITED STATES, 246 F.2d 571 n. 2 (5th Cir.

1957)).
The Supreme Court has never required "objective evidence," in
order to establish “reasonable probability," that Petitioner

would have proceeded to trial instead of pleading guilty. Petiti-
oner would of never agreed to pleading guilty to 240 months in
federal court, knowing that the State would find him guilty on
his parallel cases, where he was boxed into accepting a 60-year

plea deal. MAGANA v. HOFBAUER, 263 F.3d 542, 547-48 n. l (6th Cir.

2001).
Petitioner's plea of guilty to the charge was predicated upon

the advice of his defense counsel, "Denise S. Benson,' who be-
lieved that the U.S. Marshal's claim that Petitioner gave verbal
consent during the arrest to search his parked/ locked vehicle on
private property and recovered a firearm (i.e. a Rohm, Model 36,
.32 caliber revolver, Serial No. 217456) was a violation of 18
U.S.C. § 924(€) .

, Furthermore, this erroneous belief was also held by the prose-
cuting attorney who drafted the indictment and the district court
judge who found the basis for the Petitioner's guilty plea. In
fact, however, this belief by Counsel, "Denise S. Benson," the
prosecutor and the Court was erroneous, simply, the record holds
no evidence of the Petitioner signing a consent form conducted by
U.S. Marshal's warrantless search on March 26th, 2012.

Therefore, Petitioner's guilty plea was not entered knowingly
and voluntarily because the record indicates that Prosecutor/

"Tracey M. Batson," submitted, illegally recovered firearm as

evidence before the Grand Jury before their investigation April
12th, 2012. 4th Amendment. ln this matter and all matters, the
Petitioner did not receive real notice of the true nature of the
charge against him. His plea should therefore be vacated. j
§QL§: The plea agreement was signed August l9th, 2012.
KEY NOTE: Defense Counsel attempted to get Petitioner to sign a
consent form while in Collin County jail on or about June of 2012.
Petitioner signed Statement of Facts in support of plea agree-

ment duly 19th, 2012§

_10_

GROUND FIVE: Denial of effective assistance of counsel, failure
to investigate

RELEVANT FAcTs

Petitioner requested both Defense Counsels‘ "Denise S. Benson
and Rafael De La Garza," repeatedly, to subpeona all items that
were recovered during an illegal warrantless search and illegal
towing of Petitioner's locked, parked vehicle on private property
that were inventoried (S.O.P.)."METRO PCS phone records, AUTO ZONE
car parts receipt, METRO PCS sim card, police reports filed on
Complainant in Dallas. Petitioner submitted numerous correspond-
ence letter(s) to both said counsels requesting suppressed evid-
ence that would demonstrate to a jury that Petitioner would of
not been found guilty. UNITED STATES v. TUCKER, 716 F.2d 576, 583
n. 16 (9th Cir. 1983).

lt is the duty of the lawyer to conduct a prompt investigation
of the circumstances of the case and to explore all avenues lead-
to the facts relevant to the merits of the case ahd the penalty
in the event of conviction. The investigation should always in-
clude efforts to secure information in the possession of the
prosecution and law enforcement authorities. ABA Standard 4-4-1.
Moreover, "The investigatory should begin immediately on appear-
ance as counsel for the Petitioner." HARRIS v. BLODGETTy 853
F.supp. 1239, 1255 (w.n."wash. 1994)\ arena =¢ 5

Editorial lnformation: Subsequent History

Adopted by, l\/|otion denied by United States v. Johnson, 2013 U.S. Dist. LEX|S 51448 (E.D. Tex., Apr.
10, 2013)

Dept of Justice, Plano, TX.
Judges: AMOS L. MAZZANT, UNITED STATES MAG|STRATE JUDGE. Judge Crone.

Opinion
Opinion by: AMOS L. MAZZANT
Opinion

REPORT AND RECOMMENDAT|ON OF UNITE'D STATES MAG|STRATE JUDGE

This matter having been referred by the Honorab'le Marcia A. Crone, the Court held a hearing on
January 30, 2013, on Defendant's Motion to With'dra`w Plea of Guilty (Dkt #36). ln his motion,
Defendant seeks to withdraw his guilty plea, which was accepted by the District Judge on August 8,
2012 (Dkt. #28).

BACKGROUND

On August 7, 2012, Defendant appeared before the undersigned for his change of plea hearing.
Defendant pleaded guilty to count one of the indictment charging a violation of 18 U. S. C. § 2119,
Car Jacking. On August 7, 2012 Findings of Fact and Recommendation on Guilty Plea were
entered. On August 8, 2012, United States District Judge Marcia Crone adopted the report, finding
Defendant guilty of count one of the indictment. Defendant's plea agreement was pursuant to Fed. R.
Crim.P.11(c)(1)(C) where the parties agreed the appropriate sentence in this case is twenty (20)
years.

On October 5, 2012, Defendant filed a motion to withdraw his plea of guilty. On October 19, 2012,
the Court conducted a hearing on the motion, and at the hearing, Defendant withdrew his motion, On
November 29, 2012, Defendant filed another motion to withdraw his guilty plea. On January 28,
2013, the Government filed a response On January 30, 2013, the Court conducted a hearing on the
motion. At the hearing, Defendant testified, as did his former counsel, Denise Benson. At the end of
the hearing, the Court rejected all of Defendant's arguments except for one. The Court had a

lyecases; _ . . ,_ . 1;

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lyecases w 4. ,_ .. 1 2

question whether Defendant's plea of guilty was a knowing and voluntarily plea, when Defendant
indicated he did not know that his federal plea could be used against him in a parallel state
proceeding. The Court allowed the parties to file additional briefs on this issue. On February 8, 2013,
Defendant filed a brief, and on February 13, 2013, the Government filed a responsive brief.

ANALYS|S
Standard of Review

According to Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure, a district court may grant
a motion to withdraw a guilty plea before sentencing if the defendant shows "a fair and just reason. "
Fed. R Crim.P.11(d)(2)(B). There is no absolut§ right to withdraw a guilty plea, and the Defendant
bears the burden of establishing a fair and just`feason for withdrawing her plea. United States v.
Puckett, 505 F 3d 377, 382 (5th Cir 2007)(citation omitted); United States v. Lampazianie, 251 F. 3d
519, 523-24 (5th Cir. 2001 ). |n deciding whether to permit a defendant to withdraw a guilty plea, the
Court is granted "broad discretion." United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984)(citation
omitted).

To determine whether a defendant may withdraw a plea of guilty prior to sentencing, this Court must
look at the following factors: (1) whether the Defendant has asserted his innocence; (2) whether the
government would suffer prejudice if the withdrawal of the motion were granted; (3) whether the
Defendant has delayed in filing his withdrawal motion; (4) whether the withdrawal would substantially
inconvenience the Court; (5) whether close assistance of counsel was availab|e; (6) whether the
original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial
resources Carr, 740 F.2d at 343-344. The Court is not required to make a finding as to each
individual factor. United States v. Powe//, 354 F. 3d 362, 370 (5th Cir 2003). The Carr factors are
considered for the totality of the circumstances and no single factor 1s dispositive. Lampazianie, 251
F. 3d at 524; Powe/l, 354 F. 3d at 370. 1

Discussion

1 1
1

Defendant' s main argument in support of his claim that there is a fair and just reason to allow him to
withdraw his guilty plea 1s that he did not knowingly or voluntarily enter a guilty plea Defendant
bases this argument on the fact that prior counsel did not explain to him that his plea 1n federal court
could be used against him in a parallel case in state court in Collin County. Texas.

"For a plea to be knowing and voluntary, 'the d§f§ndant must be advised of and understand the
consequences of the [guilty] plea. "' United States v. Gaitan 954 F. 2d 1005, 1011 (5th Cir.
1992)(quoting United States v. Pearson, 910 F. 2d 221, 223 (Sth Cir. 1990)). Defendant must have
notice of the nature of the charges against him, he must understand the consequences of his plea,
and he must understand the nature of the constitutional protections he is waiving Matthew, 201 F. 3d
at 365 For a guilty plea to be voluntary, it must' 'not be the product of 'actual or threatened physical
harm, or. .mental coercion overbearing the will of the defendant' or of state- induced emotions so
intense that the defendant was rendered unable to weigh rationally his options with the help of
counsel " /d. (quoting Brady v. United States, 397 U. S. 742, 750 90 S. Ct. 1463, 25 L. Ed. 2d 747
(1970)). , ., , . .

ln this case, the Court informed the Defendant of the nature and consequences of his guilty plea l
The Court informed Defendant of the rights he gave up when pleading guilty, the potential sentence
he faced for pleading guilty, and the specific elements of the crime.

Defendant testified that Ms. Benson never advised him of the consequence that his guilty plea would
have on his parallel state case Defendant further testified that he not did know that his guilty plea

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saw _

lyecases ` ` _` v ‘ ' ` 33

and factual statement could be admitted into evidence against him in the parallel state proceeding.
Defendant further testified that had he known that his plea of guilty 1n this case could be used against
him in his state case, he would never have pleaded guilty 1n the federal case.

Ms. Benson then testified that she could not recall ever having the conversation with the Defendant
where they discussed the consequences of his plea of guilty in his parallel state case. Ms. Benson
testified that it is her practice to do so, but that she could not recall doing so in this case. Ms. Benson
further testified that Defendant had informed her that he wanted to enter a plea to his state charges.
However, no plea of guilty ever occurred in the state proceeding.

ln their supplemental briefs, neither party was able to locate any Fifth Circuit case that addresses this
situation. The Government does point out that "upon a showing of a 'fair and just reason‘ a district
court may permit a defendant to withdraw a guilty plea at any time before sentencing." 1 The Court
finds that the facts of this case demonstrate a fair and just reason to allow Defendant to withdraw his
plea of guilty. |n this case, Defendant testified that he would never have entered his plea of guilty to
his federal case, if he had known that his plea here could have been used against him in his parallel
state proceeding. The Court also has the testimony of his defense counsel, Ms. Benson, that
although she typically informs her clients of this situation, she cannot recall doing so in this case.
Since she cannot reca|l, the Court finds that ther€) is no evidence that such warnings were given.
Although the plan may have been for Defendant to enter a plea in state court, no such plea ever took
place. Moreover, in the state case, the Court gave the Assistant District Attorney the opportunity to
stipulate that the state would not use his federal plea as a confession in the parallel state proceeding,
but the Assistant District Attorney would not so certify. lf the state had certified, the Court would see
that the failure to advise would be harmless. Since the stipulation did not occur, the Court must find
that Defendant's plea was not made knowingly or voluntarily to the full consequences of his federal
plea of guilty. The Court finds, based upon the totality of the circumstances, that there is a just and
fair reason to allow Defendant to withdraw his plea of guilty.

During the hearing, Defendant was advised by counsel and the Court of the consequences of
withdrawing his plea. Defendant was informed that if he proceeds to tria|. he could receive a longer
sentence than contemplated by his plea agreement. Defendant stated that despite the
consequences, he wanted to withdraw his plea and proceed to trial.

RECOMMENDA_TION

The Court recommends that Defendant's Motion to Withdraw Plea of Guilty (Dkt. #36) should be
_' GRANTED

Within fourteen (14) days after service of the magistrate judge' s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge 28 U. S. C §
636(b)(1)_(C ) ' - .

Fai|ure to file written objections to the proposed findings and recommendations contained in this
report within fourteen days after service shall bath an aggrieved party from de novo review lby the
district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest j
injustice. Thomas 1/. Arr_i, 474 U.S.140,148,106.._.S Ct. 46_,6 88 L. Ed. 2d 435 (1985) Rodriguez .v.
Bowen, 857 F 2d 275,276_.-77(5111 Cir 1988). " ._ . v

SIG_NED this 4th day o'f lVlarch, 2013.
/s/ Amos L. l\/|azzant _
AMOS L. MAZZANT ?` ` ' 1 ' . 1.

© 201_5 Matthew Bender & Company, Inc.,'a member of the LexisNexis Group. ~All rights reserved Use of this product is subject to the restrictions
and terms and conditions of the Matthew Bender Master Agreement.

UN|TED STATES MAG|STRATE JUDGE
\."-b
Footnotes

The Government's supplemental response brief reviews what occurred at the Court's status
conference when Defendant decided to not go fon/vard with his first motion to withdraw his plea. The
Government asserts that Defendant appeared to believe that the federal and state sentences would
be served concurrently Although the record is not clear on this point, it appears that Defendant
thought that the sentences would run concurrently and that after he finished his federal time, his
state sentence would also be completed However, the state court plea never occurred

lyecases - 4

© 2015 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to the restrictions
and terms and conditions ot` the Matthew Bender Master Agreement.

E§<`H§i?>.-r-'rr' £&

Appeal dismissed by, l\/lotion granted by United States \/. Johnson, 2014 U.S. App. LEX|S 14029 (5th Cir.
Tex., July 23, 2014) .

Editorial lnformation: Prior History
United States v. Johnson, 2013 U.S. Dist. LEX|S 52385 (E.D. Tex., Mar. 4, 2013)

Opinion

Opinion by: , l\/lARClA A. CRONE

Opinion

\ v

MEMORANDUM ADOPT|NG REPORT AND RECOMN|ENDATION OF THE UN|TED STATES
MAG|STRATE JUDGE 1

Came for consideration the report of the United States l\/lagistrate Judge in this action, this matter
having been heretofore referred to the United States l\/lagistrate Judge pursuant to 28 U.S.C. § 636.
On l\/larch 4, 2013, the report of the Magistrate Judge was entered containing proposed findings of
fact and recommendation that the Defendant's l\/lotion to Withdraw Plea of Guilty (Dkt. #36) should

be granted

On March 4, 2013, the l\/lagistrate Judge recommended that the motion be granted The l\/lagistrate
Judge indicated that he gave the Assistant District Attorney the opportunity to stipulate that the state
would not use Defendant's federal plea as a confession in the parallel state proceeding, but the
Assistant District Attorney would not so certify `The l\/lagistrate Judge then found that if the state had
certified, the Court would see the failure to advise as harmless The l\/lagistrate Judge only
determined that since there was no stipulation, the Defendant's plea was not made knowingly or `
voluntarily to the full consequences of his federal plea of guilty.

On l\/larch 18, 2013, the Government filed objections As part of the objections, the Assistant District
Attorney has now certified that the State of Texas will not use the evidence of Defendant's federal
plea against him in the state’s case in chief, reserving the right to use his federal plea for rebuttal and
impeachment The Court agrees with the lvlagistrate Judge that once the State of Texas made the
certification that it would not use the federal plea against Defendant' in its case in chief, the error was

harmless

The Court, having made a de novo review of Government's objections, is of the opinion that the
findings and conclusions of the l\/lagistrate Judge are correct,. and the objections are without merit.
Therefore, the Court hereby adopts the findings and conclusions of the l\/|agistrate Judge, in part, as
the findings and conclusions of this Court. lt is accordingly _.

ORDERED that the Defendant's l\/lotion to \/Vithdraw Plea of Guilty (Dkt. #36) is DENIED.

lyecases ` ` 1

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and terms and conditions oftbe Matthe\v Bender Master .'~\. eemeut. '

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`defense counsel, along with the State and U.S. Assistant Dis"
trict Attorney's entered into a conspiracy to convict this
Petitioner by violating his Constitutional right(s) to a Trial
by jury, and his Due Process and equal protection of the law.
‘ The original 2255 Motion is clear to this said Court; of
the MANY CONSTITUTIONAL ERROR'S in this Petitioner's case's.
yPetitioner's vehicle was towed away, impounded, to cover
up the United States Marshal's illegal search of this Defendant's
vehicle`March 26th, 2012.- United States Mafshal’s, Collin County
Sheriff's Department and Dallas Police Depaftment walked away
_fromdll§ll_Ferguson Rd:, Unit #1644, Dallas, Texas 75228, after
kick in/down the front door to this said prope*ty. Further,' v
leaving this property to be looted, robhed of everything of
value, and on March 29th, 2012 this Petitioner's vehicle was
'released to someone this petitioner doesn't know. This vehicle
was illegally towed off private property, stolen out of impound
_in Dallas, Texas._ Now; therels toll bills coming to aboved
`mentioned address} with someone driving;this vehicle since March

29th, 2012. The vehicle was seen parked at the La Bella Palms

11 z’!' ._< .=9 -.'§1'

Apartments in Dallas, Texas, Septenher 5th, 2013, on channel

5 News, at 11:30 A.M., during an interview of an eight (8) year

_old boy who was shot in the face. lhis Petitioner is from Detro-

~it, §ichigan, with no family or friends_in Texas who‘could of 5 _ z
possibly gotten his vehicle out of impound, even with his consent

to do so. The United States Marshal's, Collin County Sheriff's

Departnent and Dallas Police Department did not have anything

but an Arrest Warrant for an ALLEGED KIUNAPPING THAT NEVER TOOK

PLACE.

Before breaking down the door to Said property, Furthermore,
Managment at the apartment complex had to board the place up
after it was robbed of everything of value. It's clear that
these law enforcement officer's walked away from this place
where the petitioner was a guest, atleast until he could of
purchased his own home. Then they give away his vehicle to
someone that he doesn’t even know. These law enforcement off-
icer”s never contacted Management to notify them that they kick~

ed in/down the front door to this said property,
PRAYER

Based on the record of undisputed fac ts, Defendant Johnson
respectfully moves this Court to vacate and set aside his convicf
tion and sentence for violation of U.S.C. § 924(€).

Respect§ully submitted, //d
\\ ' il ' 4~" .f’-

§
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C//l’f§=_\trick L. Johns¢n Sr. Pro`§g
#19831~ 078 ` ' °
. Beaumont FCI Complex (MED)
§ § P. 0. EBOX 26040 h h
' Beaumonc,_TeXaS 77/20 '

- VERIFICATION
I, Dietrick Lewis Johnson Sr., hereby declare under penalty

of¥perjury that the facts stated in the foregoing are Erue and //”¥

. “ 3 t
z ' z z v § g z
correct. ' 6

Johnson, Dietrick Lewis Sr.

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