1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

LINN H. JOHNSON, ) 

 ) 

Petitioner, ) 

 ) 

 vs. ) CAUSE NO. 3:18-CV-111 RLM 

 ) (Arising out of 3:14-CR-54 RLM-MGG) 

UNITED STATES OF AMERICA, ) 

 ) 

Respondent. ) 

OPINION and ORDER 

 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 
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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. 
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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 
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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 barred from raising a claim that his 

conviction was obtained by a deficient search warrant in a collateral attack. See 

Massaro v. United States, 538 U.S. at 504; Delatorre v. United States, 847 F.3d 

at 843; United States v. Cardena, 842 F.3d at 988. 

Mr. Johnson’s only other avenue is to argue that his attorney provided him 

ineffective assistance of counsel in not moving to suppress the search warrant 

To prevail on an ineffective assistance of counsel claim, Mr. Johnson must show 

both that his attorneys’ performance “fell below an objective standard of 
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reasonableness” and that there is a reasonable probability that, but for his 

attorney’s errors, the result of the proceeding would have been different. 

Strickland v. Washington, 466 U.S. 668, 688-693 (1984). This is a difficult 

standard to meet: Mr. Johnson must show both “that counsel made errors so 

serious that ‘counsel’ was not functioning as the counsel guaranteed the 

defendant by the Sixth Amendment” and “that counsel’s errors were so serious 

as to deprive [Mr. Johnson] of a fair [result].” Strickland v. Washington, 466 U.S. 

at 687. Mr. Johnson ”bears a heavy burden” in proving that his counsel was 

consitutionally ineffective. Barker v. United States, F.3d 629, 633 (7th Cir. 1993). 

Courts recognize strong presumption that counsel performed effectively. 

See Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003). “A court’s 

scrutiny of an attorney’s performance is ‘highly deferential’ to eliminate as much 

as possible the distorting effects of hindsight, and we ‘must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.’ ” Vinyard v. United States, 804 F.3d at 1225 (quoting 

Strickland v. Washington, 466 U.S. at 687). Because reviewing courts shouldn’t 

second-guess counsel’s strategic choices, the burden of showing that counsel’s 

decisions fell outside the wide range of reasonable strategic choices “rest[s] 

squarely on the defendant.” Burt v. Titlow, 571 U.S. 12, 22–23 (2013). 

“Even if counsel’s performance was deficient, a petitioner must also show 

that ‘there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different,’ meaning ‘a 

probability sufficient to undermine confidence in the outcome.’” Eckstein v. 
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Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Strickland v. Washington, 

466 U.S. at 694). 

Mr. Johnson argues that his counsel was unconstitutionally ineffective 

because his attorney didn’t challenge the allegedly unconstitutional search 

warrant. It is first argued that the Michigan City police detective, Matthew Barr, 

did not address the obscene nature of the materials during the probable cause 

hearing that was required to obtain the warrant. Mr. Johnson cites United States 

v. Black, 356 F. Supp. 366 (W.D.N.Y Feb, 8, 2973) for the proposition that a 

showing of obscenity is required. Black however, concerned a specific potential 

obscenity prosecution in which the government received ex-parte orders and 

allowed for a mechanism for which the defendants could contest the issue of 

obscenity. Id. at 368. Such a process has never been applied to warrants relating 

to child pornography. Mr. Johnson hasn’t sought, throughout any part of this 

case, to litigate the issue of whether the images recovered by the search warrant 

were pornographic in nature. 

Alternatively, Mr. Johnson’s argument could be construed as attacking the 

deficiency in Detective Barr’s testimony that was used to secure the warrant. It 

is contended that Detective Barr didn’t adequately describe the nature of the 

child pornography during the warrant hearing. An affiant must describe evidence 

of child pornography in sufficient detail to determine that the images are child 

pornography when seeking a warrant. United States v. Griesbach, 540 F.3d 654, 

656 (7th Cir. 2008). This normally involves describing the nature of the 

pornographic material, but such a description isn’t required if other evidence 
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supports a determination that the material is child pornography. United States 

v. Clark, 668 F.3d (7th Cir. 2012). 

 Such arguments raise the question of whether Mr. Johnson’s attorney 

should have challenged the warrant and if so, whether Mr. Jonson’s attorney 

was constitutionally ineffective for not doing so. For Mr. Johnson to successfully 

allege this, he must overcome the “strong presumption” that follows the “wide 

range of reasonable professional assistance” offered by his attorney. Strickland, 

466 U.S. at 689. The court must look at the reasonableness of the attorney’s 

decision at the time of making such decision. Strickland v. Washington, 466 U.S. 

at 690. 

 A detailed letter from Mr. Johnson’s attorney to Mr. Johnson regarding 

potential issues with the search warrant clearly shows that the attorney 

thoroughly considered whether to move to suppress the warrant. The attorney 

ultimately concluded that there were no defects in the oral application for the 

warrant, no issue of staleness, and no issues regarding a good-faith reliance on 

the warrant during its execution. 

Even if Mr. Johnson could demonstrate that his counsel’s failure to move 

to suppress the search warrant failed the performance prong of Strickland, he 

can only succeed on this claim if he can also show prejudice. “To establish 

prejudice, the defendant must show that ‘there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding would have 

been different.’ ” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (quoting 

Strickland v. Washington, 466 U.S. at 694). “Here, that means [Mr. Johnson] 
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must show that . . . there was a ‘reasonable probability’ that he would have been 

acquitted.” United States v. Berg, 714 F.3d 490, 497 (7th Cir. 2013) (quoting 

Rastafari v. Anderson, 278 F.3d 673, 689 (7th Cir. 2002)). Mr. Johnson can’t 

meet this burden. 

The six-month gap between the transmission of child pornography and the 

execution of the search warrant doesn’t raise a staleness issue. As Mr. Johnson’s 

attorney explained, United States v. Prideaux-Wentz, 543 F.3d 954 (7th Cir. 

2008) held a timeframe of four years sufficient for staleness. Further, Mr. 

Johnson’s attorney explained that the good-faith exception allows officers to rely 

on a court’s finding of probable cause even when the determination was based 

on stale information. United States v. Prideaux-Wentz, 543 F.3d at 956; United 

States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002). Mr. Johnson’s attorney 

believed that the search warrant was constitutionally obtained and executed, 

and his decision not to move to suppress was reasonable. Strickland v. 

Washington, 466 U.S. at 688-693. His attorney also correctly assessed each 

issue concerning the search warrant – any attack faced persuasive precedent 

that supported the governments obtaining and execution of the warrant. The 

attorney’s decision therefore did not prejudice Mr. Johnson and his counsel was 

not constitutionally ineffective. United States v. Berg, 714 F.3d at 497; United 

States v. Best, 426 F.3d at 945. 
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B. Arrest and Miranda Rights 

Mr. Johnson next argues that the court should vacate his conviction 

because was arrested in violation of his Fourth, Fifth, and Fourteenth 

Amendment rights. Mr. Johnson argues that the arrest was unconstitutional 

because it was based on a deficient search warrant and that certain 

incriminating statements were obtained without him being notified of his 

Miranda rights. Mr. Johnson also alleges that he was tricked or coerced into 

signing a Miranda waiver. 

As with the search warrants, the court can’t reach the merits of this 

collateral attack because Mr. Johnson didn’t move to suppress his statements 

before trial and didn’t raise this issue on direct appeal or provide cause for not 

doing so,. See Massaro v. United States, 538 U.S. at 504; Delatorre v. United 

States, 847 F.3d at 843; United States v. Cardena, 842 F.3d at 988. So Mr. 

Johnson must, and does, argue that his counsel was unconstitutionally 

ineffective because his attorney didn’t move to suppress evidence, including a 

confession, resulting from his arrest. 

There is some discrepancy in the record as to whether Mr. Johnson was 

detained or arrested. At the time of the arrest or detainment, a group of 

individuals at Mr. Johnson’s maintained residence were questioned. While the 

other individuals were later released after questioning, Mr. Johnson was not. 

Even if Mr. Johnson was arrested from the moment he was taken from his 

residence, his arrest does not appear unlawful and his counsel was not 

ineffective for not challenging it. Warren v. Baenen, F.3d 1090, 1104 (7th Cir. 
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2013). If Mr. Johnson was arrested sometime during his detainment, such an 

arrest would also be lawful. McDaniel v. Polley, 847 F.3d 887 (7th Cir. 2017) 

(probable cause can arise for a lawful arrest during detention). 

Mr. Johnson’s counsel was not ineffective for not challenging his 

confession. Mr. Johnson’s confession was attenuated enough from the alleged 

unlawful arrest to be “sufficiently an act of free will to purge the primary taint” 

of the arrest. McDaniel v. Polley, 847 F.3d at 894 (quoting Brown v. Illinois, 422 

U.S. 590, 602 (1975). Courts generally look to a number of factors in considering 

attenuation including: “[t]he temporal proximity of the arrest and confession, the 

presence of intervening circumstances, and, particularly, the purpose and 

flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. at 603-604. 

 While Mr. Johnson’s confession came soon after his arrest, two intervening 

factors suggest sufficient attenuation. First, officers read Mr. Johnson’s his 

Miranda rights while he was detained, stating that although he was not under 

arrest at the time, the officer wanted Mr. Johnson to be aware of his rights. 

Second, officers had probable cause to arrest Mr. Johnson at some point during 

the detainment when his computers were searched and child pornography was 

found. This information was gained from a valid search warrant and not the 

allegedly unlawful arrest. This information was gained before the reading of Mr. 

Johnson’s Miranda rights and known to both the interviewing officer who 

obtained the confession and the defendant. These circumstances support Mr. 

Johnson’s counsel’s decision not to move to suppress the confession. McDaniel 

v. Polley, 847 F.3d at 894-895. 
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 The inquiry also considers the officers’ conduct. McDaniel v. Polley, 847 

F.3d at 895. This factor is aimed at deterring bad-faith official behavior. Utah v. 

Streiff, 136 S.Ct. 2056, 2062 (2016). The record shows that the conduct of the 

officers was neither purposeful nor flagrant. The interviewing officer explicitly 

told Mr. Johnson that he wasn’t under arrest. Others that were detained during 

the search of Mr. Johnson’s residence were released. Mr. Johnson himself asked 

if he could leave with these individuals. The circumstances don’t support a 

determination that officers acted in bad faith by detaining, and later arresting, 

Mr. Johnson. 

 As to the defective Miranda waiver, Mr. Johnson was read his Miranda

rights when the interview began. The interviewing officer acknowledged Mr. 

Johnson’s learning disability and instructed Mr. Johnson to stop him if there 

was any confusion in the reading of his rights.1 The interviewing officer further 

told Mr. Johnson that he could stop the answering questions at any time and 

Mr. Johnson replied affirmatively to this statement. Mr. Johnson then read the 

last line of the Miranda waiver, stating that he was willing to answer questions 

without his lawyer present.2 The interviewing officer then told Mr. Johnson as to 

the nature of investigation. The officer, or any other officer, was not required to 

                                                            

1 Mr. Johnson’s Presentence Investigation Report stated that he “did not present any 

significant symptoms of mental illness” and that he “appeared stable and did not appear in 

need of any psychiatric treatment.” 

2 Mr. Johnson has a number of recorded arrests and has had numerous contacts with the 

criminal justice system. “Substantial experience with the criminal justice system” is a factor 

this court can consider when determining whether a Miranda waiver was deficient. United 

States v. Brown, 664 F.3d 1116, 1118 (7th Cir. 2011). 
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read Mr. Johnson Miranda warnings in subsequent interviews. United States v. 

Edwards, 581 F.3d 604, 606-607 (7th Cir. 2009) (compiling cases). 

Considering the totality of the circumstances, it doesn’t appear that Mr. 

Johnson’s Miranda waiver was obtained via trickery or coercion. United States 

v. Brown, 664 F.3d 1116, 1118 (7th Cir. 2011); United States v. Smith, 218 F.3d 

777, 781 (7th Cir. 2000) (waiver “may be inferred from the defendant’s 

understanding of [his] rights coupled with a course of conduct reflecting [his] 

desire to give up [his] right[s].”); Johnson v. Pollard, 559 f.3d 745, 753 (7th Cir. 

2009). Defense counsel’s failure to seek suppression of evidence related to Mr. 

Johnson’s arrest didn’t fall below the standard set out in United States v. 

Strickland and the decision didn’t prejudice Mr. Johnson. Strickland v. 

Washington, 446. U.S. 687-688; United States v. Berg, 714 F.3d at 497; United 

States v. Best, 426 F.3d at 945. 

C. Cruel and Unusual Punishment 

Mr. Johnson further argues that he suffered cruel and unusual 

punishment due to a five-level guideline enhancement found at sentencing. Mr. 

Johnson argues that the enhancement has caused him to be punished for 

uncharged, unsubstantiated conduct resulting in him being imprisoned. Mr. 

Johnson says the court should have applied U.S.S.G. § 2A3.1(1) which is a 

guideline violation of 18 U.S.C. § 2241. Mr. Johnson was sentenced under 

U.S.S.G. § 2G2.2. Despite Mr. Johnson’s contention to the contrary, the fivelevel enhancement found at sentencing under U.S.S.G. § 2G2.2(b)(5) applies 
13 

“whether or not the abuse or exploitation [...] resulted in conviction.” U.S.S.G. § 

2G2.2. 

This issue should have been raised on direct appeal. Since it wasn’t, and 

Mr. Johnson has not shown neither cause nor prejudice, he cannot now attack 

the issue collaterally. See Massaro v. United States, 538 U.S. at 504; Delatorre 

v. United States, 847 F.3d at 843; United States v. Cardena, 842 F.3d at 988. To 

the extent that Mr. Johnson argues that the conditions of his current 

incarceration amount to cruel and unusual punishment due to Bureau of 

Prisons action or policy, such motion for relief must be brought in the 

jurisdiction in which Mr. Johnson is currently held. United States v. Choiniere, 

2012 WL 1424413 (N.D. Ind. April 23, 2013) (compiling cases). 

III. CONCLUSION

Based on the foregoing, the court DENIES the motion to vacate [Doc. No. 

102]. 

SO ORDERED. 

ENTERED: May 23, 2019 

 /s/ Robert L. Miller, Jr. 

 Judge, United States District Court