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Johnson v. United States

United States District Court, N.D. Indiana, South Bend Division

May 23, 2019

LINN H. JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE

         Linn H. Johnson pleaded guilty to possession of child pornography, a violation of 18 U.S.C. § 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. § 2255. [Doc. No. 102]. For the following reasons, the court denies Mr. Johnson's motion.

         I. Background

         In 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 (“IP”) 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.

         Police 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.

         The 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.

         On 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. 2017).

         II. Discussion

         Mr. 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.

         Rule 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).

         A. Search Warrant

         Mr. 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.

         If Mr. 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 ...


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