United States v. Sandra Johnson ( 2020 )

Case: 18-20737 Document: 00515297032 Page: 1 Date Filed: 02/04/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20737 February 4, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SANDRA JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-2036
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
Sandra Johnson, federal prisoner # 66542-179, pleaded guilty without a
plea agreement to conspiracy to launder funds, in violation of 18 U.S.C.
§ 1956(h). Johnson filed a 28 U.S.C. § 2255 motion claiming in part that her
attorney was ineffective because he failed to consult with her about an appeal
or to file a notice of appeal after she requested one. The district court held an
evidentiary hearing and denied this claim because it found that her attorney
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 18-20737
rendered effective assistance. Johnson appeals this finding and the district
court’s denial of that claim.
This court reviews de novo a district court’s conclusions on a § 2255
motion based on ineffective assistance of counsel; it reviews findings of fact for
clear error. United States v. Cong Van Pham, 722 F.3d 320, 323 (5th Cir. 2013).
To establish ineffective assistance of counsel, a defendant must show that
counsel’s performance was deficient and that she was prejudiced by counsel’s
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Johnson’s lawyer testified that Johnson did not convey that she wanted
to file an appeal; if she had, he would have filed a notice of appeal because it
only takes 15-20 minutes to do so. The district court found this testimony
credible, and it found that Johnson’s testimony to the contrary was not
credible. Johnson makes no attempt to show that this finding constituted clear
error.
The district court also found that Johnson’s counsel did not err by failing
to advise Johnson of her right to appeal. Counsel performs deficiently in failing
to consult with the defendant about an appeal when “there is reason to think
either (1) that a rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that [s]he was interested in appealing.”
Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). The district court found that
there was no reason to think that Johnson would wish to appeal because she
pled guilty; received a presumptively reasonable, within-guidelines sentence;
the court credited her attorney’s account that she “had resigned herself to face
the music” by pleading guilty; Johnson acknowledged that she wished to take
full responsibility for her actions; and she pleaded guilty knowing that she
faced up to 20 years in prison, which is substantially more than the 87-month
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No. 18-20737
sentence that was imposed. But even if Johnson could show that her counsel
performed deficiently, her claim fails on the prejudice prong, which requires
her to demonstrate that “there is a reasonable probability that, but for
counsel’s deficient failure to consult with [her] about an appeal, [s]he would
have timely appealed.” Flores-Ortega, 528 U.S. at 484. Johnson erroneously
relies on the presumed prejudice afforded when a defendant requests that
counsel file an appeal and counsel fails to do so, but she does not challenge the
district court’s finding that she never requested that her attorney file an
appeal. She has therefore failed to make a showing of prejudice. See United
States v. Bejarano, 751 F.3d 280, 286 (5th Cir. 2014) (holding that a defendant’s
testimony that he would have appealed if consulted, standing alone, does not
establish prejudice).
Johnson also filed a motion to supplement the record on appeal, seeking
to include a rejected plea agreement that contained a waiver of her appellate
rights. This court has indicated that it will supplement the record when
“consideration of particular evidence clearly reveals how a case should be
disposed.” Ecuadorian Plaintiffs v. Chevron Corp, 619 F.3d 373, 379 n.11 (5th
Cir. 2010). Here, however, the proposed plea agreement does not change how
the case should be disposed in light of the district court’s credibility finding
and Johnson’s failure to demonstrate prejudice. Accordingly, the motion to
supplement is denied.
Thus, the judgment of the district court is AFFIRMED; the motion to
supplement is DENIED.
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