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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CASE NO. 1:03-cr-00059-MP-AK

JEROME WAYNE JOHNSON,

Defendant.

_____________________________/

O R D E R

This matter is before the Court on the timely-filed Motion for Certificate of Appealability

by Jerome Wayne Johnson, Doc. 231. Mr. Johnson has presented eight requested grounds for

relief. The Court has two issues before it: whether Petitioner should be granted a Certificate of

Appealability ("COA"), and if so, which issue(s) should be certified for appeal. Also, with regard

to a future motion to proceed in forma pauperis on these eight grounds, the Court must consider

whether the appeal is taken in good faith, as the term is used in Fed. R. App. P. 24(a)(3) and (4). 

Having considered the facts of this case and the applicable law, the Court finds that Petitioner

should not be granted a certificate of appealability and that any motion to proceed in forma

pauperis should be denied.

The COA requirement is a result of amendments made to 28 U.S.C. § 2253 by the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110

Stat. 1214. All appeals of habeas petitions which are filed after April 24, 1996, the effective date

of the AEDPA, require that a habeas petitioner first receive a COA before a circuit court can

hear the petitioner's appeal. See Hunter v. United States, 101 F.3d 1565, 1573 (11th Cir. 1996)

(en banc), cert. denied, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997). Pursuant to the statute, "[a]
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certificate of appealability may issue . . . only if the applicant has made a substantial showing of

the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (emphasis added). Section

2253(c)(3) requires the district court to indicate which specific issues, if any, a habeas petitioner

is entitled to raise.

In order to make the requisite "substantial showing of the denial of a constitutional right"

[28 U.S.C. § 2253(c)(2)], "a petitioner who has been denied relief in a district court 'must

demonstrate that the issues are debatable among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are adequate to deserve encouragement to

proceed further.'" Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 862, 112 L.Ed.2d 956

(1991) (emphasis and brackets in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4,

103 S.Ct. 3383, 3394, n.4, 77 L.Ed.2d 1090 (1983)) If a petitioner fails to make such a showing,

his or her request for a COA must be denied. See, e.g., United States v. Riddick, 104 F.3d 1239,

1241 (10th Cir. 1997); Hohn v. United States, 99 F.3d 892, 893 (8th Cir. 1996), petition for cert.

filed (May 12, 1997) (No. 96-8986).

Here, Mr. Johnson’s first two grounds for relief concern his trial counsel’s advice to him

that he could face a maximum mandatory penalty of life in prison if he went to trial. His second

two grounds for relief concern his assertion that he was never informed he faced a 20 year

mandatory minimum sentence by pleading guilty. His fifth claim for relief concerns his

assertions that his attorney gave him incorrect advice and the Court failed to explain his

sentencing exposure. To determine the validity of these claims, the Court will examine the

record. 

In fact, at Mr. Johnson’s change of plea hearing on February 17, 2007, he acknowledged

that the Court could impose a mandatory minimum of life imprisonment, based on his two prior
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felony drug convictions. Doc. 156 at 14-15. The Court then asked the Defendant: “Do you

understand further, Mr. Johnson, that since the statute here involved does require the imposition

of a mandatory minimum sentence, that the sentence must be imposed upon you even though

your guidelines might call for a lesser term of imprisonment?” Mr. Johnson replied: “I

understand, Your Honor.” Id. at 16. Defendant also told the Court that no promises or

inducements had been made to him and that no one had used “any type of threat, force, pressure,

intimidation of any type” to make him plead guilty. Id. at 24-25. 

Since Mr. Johnson’s attorney advised him correctly that he faced a possible life sentence,

no reasonable jurist would find that Mr. Johnson should receive relief based on his claim of

erroneous representations by his attorney, which make up his first two claims for relief. Because

Mr. Johnson himself acknowledged that he faced a mandatory minimum sentence beyond the

guideline range, no reasonable jurist would find that Mr. Johnson should receive relief based on

his claim of ignorance of the mandatory minimum, his third and fourth claims for relief. 

Because Mr. Johnson’s attorney explained that he could be facing a mandatory minimum, and

the Court further explained it, no reasonable jurist would grant Mr. Johnson’s fifth claim for

relief, alleging the opposite. 

Mr. Johnson’s sixth claim for relief concerns his assertions that his attorney failed to

provide constitutionally sufficient representation during sentencing. Mr. Johnson’s attorney

filed objections to the original pre-sentence report, Doc. 117, arguing successfully to reduce Mr.

Johnson’s sentence from a mandatory minimum life sentence to a mandatory 20 years. He filed

another motion, and an amended version, arguing that the Court should not enhance Mr.

Johnson’s sentence based on his felony drug conviction in the Middle District of Florida because

that sentence had not yet become final. Docs. 119, 120. Mr. Johnson’s attorney continued to
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fight on his behalf, appearing before the Court twice to argue orally on the issues surrounding

Mr. Johnson’s sentencing, submitting motions for reconsideration, requesting evidentiary

hearings, and even requesting a continuance to research the possibility of withdrawing the guilty

plea based on adverse rulings. The Court denied those motions, as well as the motion to

withdraw the guilty plea, finding “It appears . . . that the sole basis [for the motion to withdraw

his guilty plea] is that he is unhappy with the sentence.” Doc. 158, p. 18-19. No reasonable

jurist could find that Mr. Johnson’s attorney was unconstitutionally deficient in his

representation of Mr. Johnson. On the contrary, he was zealous and diligent in attempting to

protect Mr. Johnson’s interest. Mr. Johnson’s sixth claim for relief is without legal merit. 

Mr. Johnson’s seventh claim for relief complains that this Court improperly adopted a

finding from the Magistrate Judge’s Report and Recommendation, Doc. 221. Specifically, Mr.

Johnson complains that his guilty plea was not made with sufficient knowledge. Mr. Johnson

has made no substantial showing that he lacked sufficient knowledge of the risks of his guilty

plea, as discussed above. Further, this Court adopted the extensive research and analysis of the

Magistrate Judge only after performing complete de novo review of the record in light of Mr.

Johnson’s objections to the Report and Recommendation. No reasonable jurist could find that

Mr. Johnson has made a substantial showing of the violation of any constitutional right by the

manner in which this Court reviewed his habeas corpus petition and denied it. 

Mr. Johnson’s eighth and final claim for relief alleges that this Court was wrong to

discuss the results of his direct appeal in its habeas corpus analysis. Specifically, this Court

found during sentencing that Mr. Johnson’s felony narcotic activity in the Middle District of

Florida was independent of the Gainesville charges, such that he was not entitled to the safety

valve and faced a mandatory minimum sentence instead of the lesser guideline sentence. On
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habeas corpus review, the Magistrate Judge and this Court discussed the points appealed in

order to analyze whether Mr. Johnson’s counsel had been effective in litigating those points. Mr.

Johnson has not made a substantial showing that the Court violated his rights by doing so. 

Indeed, in order to analyze thoroughly whether Mr. Johnson had effective assistance of counsel,

the points on which he believes his counsel was ineffective must be reviewed. No reasonable

jurist would grant Mr. Johnson relief on his eighth claim.

 Accordingly, no reasonable jurists would debate the fact that petitioner's habeas corpus

petition was properly dismissed. Consequently, Petitioner cannot make a substantial showing of

the violation of a constitutional right and the Application for Certificate of Appealability should

be denied. 

Also, for the reasons given above, Petitioner's appeal is without legal merit, and therefore

considered frivolous. The Court hereby certifies, pursuant to Fed. R. App. P. 24(a)(3) and (4),

that the appeal is not taken in good faith, such that an appeal may not be taken in forma

pauperis. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Petitioner's Motion for a Certificate of Appealability, Doc. 231, is DENIED.

2. The Court certifies that Mr. Johnson’s appeal is not taken in good faith, and that

he may not appeal in forma pauperis.

3. The clerk is directed to forward a copy of this order and an updated docket sheet

to the Eleventh Circuit Court of Appeals.

DONE AND ORDERED this 5th day of April, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge