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Johnson v. Taylor

United States District Court, N.D. Georgia, Atlanta Division

April 14, 2017

TROY D. JOHNSON, Petitioner,
v.
CEDRIC TAYLOR, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge Russell G. Vineyard's Final Report and Recommendation [14] (“R&R”), recommending that Petitioner Troy D. Johnson's (“Petitioner”) Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [1] (“Federal Habeas Petition”) be denied, that a certificate of appealability be denied, and that this action be dismissed. Also before the Court are Petitioner's Objections to the Magistrate's Final Report and Recommendation [17] (“Objections”).

         I. BACKGROUND[1]

         On December 17, 2009, a DeKalb County grand jury returned an indictment charging Petitioner with one count of malice murder (Count 1), one count of felony murder (Count 2), three counts of aggravated assault (Counts 3-5), and two counts of possession of a firearm during the commission of a crime (Counts 6-7). ([11.8] at 49-61). On September 29, 2010, Petitioner pleaded guilty to Counts 1, 6, and 7, and was sentenced to life plus ten years of imprisonment. ([11.8] at 46-48). Count 5 was nolle prossed and the remaining charges-Counts 2 through 4-were “merge[d]” with Count 1. ([11.8] at 46). Petitioner was represented by attorneys Michael Mann and Robert Citronberg. ([1] at 18; [1.1] at 2; [11.6] at 29-30). Petitioner did not file a direct appeal. ([1] at 3).

         On August 11, 2011, Petitioner filed, in the Superior Court of Ware County, his state habeas corpus petition (“State Habeas Petition”) challenging his convictions and sentence. ([11.1]). Petitioner argued his counsel rendered ineffective assistance when they (1) failed to comply with Petitioner's request to file a motion to withdraw his guilty plea; (2) failed to investigate and pursue defense strategies, and did not arrange a mental health evaluation for Petitioner; (3) failed to request a presentence investigation or to investigate Petitioner's background; (4) advised Petitioner to enter a guilty plea knowing that he was on prescription medication, which prevented him from intelligently and voluntarily entering the plea; and (5) acted in a manner that was professionally unreasonable by “abandonment.” ([11.2]; [11.3]). On April 19, 2013, after conducting two evidentiary hearings on Petitioner's claims, the state court denied Petitioner's State Habeas Petition. ([11.4]-[11.8]).

         On May 14, 2014, Petitioner, proceeding pro se, filed his Federal Habeas Petition asserting the following grounds for relief:

(1) Petitioner received constitutionally ineffective assistance of counsel when Mr. Citronberg (a) “failed to comply with Petitioner's request- made immediately after the trial court imposed sentencing-to file a motion to withdraw the guilty pleas”; (b) “failed to investigate and pursue all defense strategies”-including Petitioner's military background, medical history, and mental condition-“for potential mitigation of punishment”; (c) “failed to request a pre-sentence investigation for potential acquisition of mitigation of punishment evidence”; (d) “advised Petitioner to accept the guilty plea, while knowing Petitioner was under the influence of a medication which prevented him from intelligently and voluntarily entering said pleas”; and (e) “acted in a manner that was professionally unreasonable, and constituted abandonment, when [he and Mr. Mann] deliberately failed to act on Petitioner's multiple instructions to file a motion to withdraw the guilty pleas”;
(2) “[t]he trial court judge induced Petitioner into pleading guilty by signifying that he would receive a lesser sentence if he did, and then reneged without prior notice”; and
(3) Mr. Citronberg rendered ineffective assistance by (a) advising Petitioner to enter a guilty plea while Petitioner was under the influence of Vicodin, and (b) erroneously informing Petitioner that his sentences would run concurrently.

(Federal Habeas Petition at 5-13).

         On October 9, 2014, the Magistrate Judge issued his R&R, recommending that Petitioner's Federal Habeas Petition be denied, that a certificate of appealability be denied, and that this action be dismissed. On November 4, 2014, Petitioner filed his Objections to the R&R.

         II. LEGAL STANDARD

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A 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.” 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).

         Petitioner's objections merely repeat-largely word-for-word-the facts and general legal standards stated in the R&R. Petitioner does not identify any specific findings to which he objects, and does not explain the basis of his objections. The Court reviews the R&R for plain error because Plaintiff's objections are “[f]rivolous, conclusive, or general” and do not “specifically identify those findings objected to.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).

         III. DISCUSSION

         A. Grounds (2) and (3)(b): Procedural Default

         Ground (2) of Petitioner's Federal Habeas Petition asserts that “[t]he trial court judge induced Petitioner into pleading guilty by signifying that he would receive a lesser sentence if he did, and then reneged without prior notice.” Ground (3)(b) asserts that counsel erroneously informed Petitioner that his sentences would run concurrently.

         “Under Georgia law, a prisoner seeking a writ of habeas corpus vacating his conviction must present all of his grounds for relief in his original petition.” Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir. 2000); see O.C.G.A. § 9-14-51 (“All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless . . . [those grounds] could not reasonably have been raised in the original or amended petition.”). ...


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