United States District Court, N.D. Indiana, South Bend Division
LINN H. JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
L. MILLER, JR. JUDGE
Johnson pleaded guilty to possession of child pornography, a
violation of 18 U.S.C. Â§ 2252(a)(4)(b). The court sentenced
Mr. Johnson to a term of 144 months' imprisonment and
five years' supervised release. The judgment was affirmed
on appeal, and Mr. Johnson is now before the court requesting
that the court vacate his conviction and sentence under 28
U.S.C. Â§ 2255. [Doc. No. 102]. For the following reasons, the
court denies Mr. Johnson's motion.
2013, Mr. Johnson lived in Michigan City, Indiana with
various family members in a house that functioned as
pseudo-daycare. Children were regularly in the house,
including Mr. Johnson's seven-year-old niece. While
living there, Mr. Johnson transmitted child pornography to an
undercover Michigan City police detective. After transmitting
the child pornography, investigators issued a subpoena to the
Internet Protocol (âIPâ) provider of the IP address used to
transmit pornography. The IP address subscriber was
identified as Mr. Burton Johnson. Police were also able to
secure an actual physical address.
observed the residence associated with Mr. Burton Johnson,
the pseudo-daycare house, and determined that certain
vehicles at the house were registered to Mr. Burton Johnson.
On December 6, 2013, police investigators sought a warrant in
state court for a search of the residence. Probable cause was
found to support the search, and police executed the warrant
a week later. The found more than 1, 500 images and 65 videos
of child pornography.
occupants of the house - Mr. Burton Johnson, Mr. Linn
Johnson, and Mr. James Miller - were taken to the Michigan
City police station. Mr. Linn Johnson waived his
Miranda rights and admitted to downloading child
pornography. A search of Mr. Linn Johnson's laptop
computer revealed numerous pornographic images of children.
Mr. Johnson further admitted that the other people in the
house weren't involved with the child pornography. Mr.
Johnson was charged with two counts of distribution of child
pornography and one count of possession of child pornography.
Mr. Johnson latter pleaded guilty to possession of child
pornography and was sentenced to 144 months imprisonment and
5 years of supervised release.
appeal, Mr. Johnson challenged two of the court's
sentencing decisions. First, Mr. Johnson argued that the
court erred in assessing a five-level enhancement for
engaging in a pattern of sexual abuse of a minor and for
refusing to grant his own acceptance of responsibility.
Second, he argued that the court erred in relying on hearsay
when assessing the five-level enhancement. The court of
appeals rejected both arguments and affirmed. United
States v. Linn Johnson, 684 Fed.Appx. 571 (7th Cir.
Johnson contends: 1) that the search warrant of his premises
was unconstitutionally obtained 2) that the search warrant
was unconstitutionally executed; 3) that he was
unconstitutionally arrested; 4) that his Miranda
rights were violated; and that 5) he was subject of cruel and
unusual punishment as a result of certain findings at
sentencing. When a motion is filed 28 U.S.C. § 2255:
The motion, together with all the files, records,
transcripts, and correspondence relating to the judgment
under attack, shall be examined promptly by the judge to whom
it is assigned. If it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief in the
district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts. After reviewing the record in
this case, the court finds that Mr. Johnson's petition
can be resolved without a hearing. See Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels
v. United States, 54 F.3d 290, 293 (7th Cir. 1995).
Johnson first argues that the court should vacate his
conviction because it was due, in part, to a search warrant
that was obtained and executed in violation of his Fourth
Amendment rights. Mr. Johnson argues that the search warrant
lacked probable cause and that it was overbroad. Because Mr.
Johnson didn't file a motion to suppress his statements
before trial and didn't raise this issue on direct appeal
or provide cause for not doing so, the court can't reach
the merits of this collateral attack.
Johnson believed that a law enforcement officer obtained the
warrant without probable cause or that the warrant was
overbroad, he was required to file a motion to suppress
before trial. See Fed. R. Crim. P. 12(b)(3)(c). He
didn't file a motion to suppress before trial or before
pleading guilty, sohe waived any suppression argument unless
he can show good cause. Fed. R. Crim. P. 12(c)(3); United
States v. Cardena, 842 F.3d 959, 988 (7th Cir. 2016).
And because Mr. Johnson didn't pursue an appeal on this
issue, he can't raise it “on collateral review
unless [he] shows cause and prejudice, ” Massaro v.
United States, 538 U.S. 500, 504 (2003), or actual
innocence. Delatorre v. United States, 847 F.3d 837,
843 (7th Cir. 2017). Mr. Johnson offered no cause for not
moving to suppress the confession before trial or pursuing an
appeal on that issue and doesn't argue actual innocence,
so he is ...