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Johnson v. Genovese

United States District Court, M.D. Tennessee, Nashville Division

March 30, 2018

JOSEPH LAMONT JOHNSON, Petitioner,
v.
KEVIN GENOVESE, Warden, [1] Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner Joseph Lamont Johnson was convicted by a jury of two counts of aggravated robbery, one count of aggravated assault, and one count of felony evading arrest and is now serving a fifty-four-year sentence imposed by the Davidson County Criminal Court on March 3, 2005. (Doc. No. 13-1, PageID# 131, 275-78.) Johnson filed this habeas corpus action under 28 U.S.C. § 2254 on November 26, 2014. (Doc. No. 1.) Respondent has answered Johnson's petition (Doc. No. 14) and filed the state court record (Doc. No. 13). After Johnson's counsel moved to withdraw (Doc. No. 17), this Court appointed the Office of the Federal Public Defender for the Middle District of Tennessee to represent Johnson (Doc. No. 23). On January 12, 2017, Johnson filed a reply to Respondent's answer to his petition. (Doc. No. 30.) Respondent does not dispute that Johnson's petition is timely and that this is his first habeas petition related to this conviction. (Doc. No. 14, PageID# 1299.)

         Johnson requests an evidentiary hearing on the issues raised in his petition. (Doc. No. 1, PageID# 13; Doc. No. 30, PageID# 1411.) This Court need not hold an evidentiary hearing where “the record refutes the applicant's factual allegations or otherwise precludes habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The Court must consider Johnson's claims in light of the “deferential standards prescribed by [the Antiterrorism and Effective Death Penalty Act (AEDPA)], ” under which a state court's factual findings are presumed correct subject to rebuttal by clear and convincing evidence. Id.; 28 U.S.C. § 2254(e)(1). Having reviewed Johnson's arguments and the underlying record, the Court finds that an evidentiary hearing is not required. Johnson is not entitled to relief under AEDPA's standards. His petition will be denied and this case will be dismissed.

         I. Procedural History

         The state prosecution of Johnson emerged from the November 17, 2003 robbery of a Taco Bell on Brick Church Pike in Nashville. State v. Johnson, No. M2007-01644-CCA-R3-CD, 2009 WL 2567729, at *1 (Tenn. Crim. App. Aug. 18, 2009) (“Johnson I”); (Doc. No. 13-13). On February 6, 2004, Johnson was indicted by the Davidson County grand jury and charged with three counts of aggravated robbery, two counts of aggravated assault, one count of evading arrest, and one count of driving on a suspended license. (Doc. No. 13-1, PageID# 134, 139-40, 146-50.) After pre-trial developments that resulted in the dropping out of several charges (see, e.g., id. at PageID# 163, Doc. No. 30 at PageID# 3 n. 4), Johnson went to trial before a jury on December 6, 2004, on two counts of aggravated robbery, one count of aggravated assault, and one count of evading arrest. (Doc. No. 13-1 at PageID# 165-66.) The jury found Johnson guilty as charged. (Id. at PageID# 166; Doc. No. 13-5, PageID# 611.) After reducing one of Johnson's aggravated robbery convictions to aggravated assault due to double jeopardy concerns (Doc. No. 13-15, PageID# 975), the Davidson County Criminal Court (hereinafter, the “trial court”) sentenced Johnson to an aggregate term of fifty-four years. Johnson I, 2009 WL 2567729, at *1; (Doc. No. 13-1, PageID# 275-78). Johnson was represented at trial by attorney Paul Walwyn. (Doc. No. 1, PageID# 6.)

         Represented by attorney David Wicker, Johnson appealed his conviction to the Tennessee Court of Criminal Appeal (“TCCA”). In his amended brief to that court, Johnson argued that the evidence at trial was insufficient to support his convictions, that the trial court erred in instructing the jury on the lesser included offenses of aggravated assault, and that the sentences imposed were excessive and should not have been made consecutive. (Doc. No. 13-11, PageID# 795-805.) On August 18, 2009, the TCCA held that the trial court had improperly instructed the jury that reckless endangerment was a lesser included offense of aggravated assault but that the error was harmless because Johnson was not found guilty of reckless endangerment. Johnson I, 2009 WL 2567729, at *1. The TCCA rejected Johnson's other arguments. Id. The Tennessee Supreme Court denied permission to appeal on February 22, 2010. (Doc. No. 13-15, PageID# 934.)

         Johnson filed a pro se petition for post-conviction relief in the trial court on September 27, 2010. (Id. at PageID# 935.) On July 2, 2012, after being briefly represented by two other lawyers (id. at PageID# 951-54), Johnson filed an amended petition with the aid of attorney David Collins arguing that his trial counsel was constitutionally ineffective (id. at PageID# 955-69). The trial court held an evidentiary hearing on Johnson's ineffective assistance claims on August 10, 2012, and issued an order denying those claims on September 18, 2012. (Id. at PageID# 1062-70.)

         Johnson appealed the trial court's denial of his petition for post-conviction relief, filing his appellate brief (again with counsel David Collins) on April 26, 2013. (Doc. No. 13-18.) On appeal, Johnson argued five theories of ineffective assistance of trial counsel. (Id. at PageID# 1194.) In an opinion issued on February 27, 2014, the TCCA affirmed the trial court's decision. Johnson v. State, No. M2012-02310-CCA-R3-PC, 2014 WL 793636, at *1 (Tenn. Crim. App. Feb. 27, 2014) (“Johnson II”); (Doc. No. 13-22). On July 14, 2014, the Tennessee Supreme Court again denied permission to appeal. (Doc. No. 1-7.)

         II. Statement of Facts

         In considering Johnson's appeal of his conviction on direct review, the TCCA provided the following summary of the evidence presented at trial:

At trial, Sadek “Sam” Alshinawa[2] testified that on November 17, 2003, he was the manager at a Taco Bell restaurant on Brick Church Pike in Nashville. Approximately ten minutes after the store opened at 10:00 that morning, Ebony Moore, who was working the register in the dining area, came into the office, where Alshinawa was working, and told him that “somebody is try[ing] to rob us.” He and Moore then went to the dining area, where he saw a man, whom he identified as the defendant, jump onto the counter. Alshinawa said that the defendant wore a “dark maroon” jacket with a hood covering his head. Moore telephoned the police and Alshinawa pushed a button to activate a silent alarm.
Alshinawa said that once the defendant got onto the counter, the defendant grabbed Moore's hair with his left hand while keeping his right hand in his pocket. Alshinawa testified that the defendant's right pocket appeared “heavy, ” as if a gun were in the pocket, and that the defendant did not remove his right hand from his pocket during the incident. Alshinawa said that during the incident he felt frightened and that Moore cried and told him, “Please help me.” He said that at one point the defendant, who kept his hand inside the pocket with his index finger out and the thumb up, told him, “If you don't give me the money, I will hurt her.” Alshinawa gave the defendant the money from the store safe, and Moore opened the cash register and gave him the money from the register. He said that the store usually kept around $600 on hand and that the defendant took approximately $200 to $300, some of which was in $5 and $1 bills. The defendant also demanded the store's surveillance videotape; Alshinawa said that the store did not have a working surveillance system but that he gave the defendant a training video.
After the manager gave the defendant the video, the defendant “grab[bed] [Moore by] her hair, again. He hit her in the wall. . . . I believe she hit . . . her head. . . . ” After the defendant pushed Moore into the wall, he ran out the restaurant's front door. Alshinawa ran out the back door, carrying a metal object of some sort. He saw the defendant get into the driver's seat of a “goldish or silver” car in which another man wearing a brown jacket was seated in the front passenger seat. Alshinawa used the metal object to bust out three of the car's windows. The car sped off as the police arrived. Later that day, the police returned to the store with the defendant. Alshinawa told the police that he was sure that the defendant was the person who robbed the store; he testified that he and the defendant shoved each other at one point during the robbery and that he saw the defendant's face at that point. Alshinawa said that he was “100% certain” the man whom he saw in the car's passenger seat the day of the robbery was Willie Harris, the co-defendant at trial.
On cross-examination, Alshinawa said that the defendant kept his right hand in his pocket from the time he came into the store until the time he left. He said that he put the money inside the defendant's jacket pocket after being told to do so by the defendant. However, Alshinawa did not specify into which pocket he placed the money. He reiterated that the defendant's right jacket pocket looked like it contained “something heavy” and that there was “no way” the pocket could have been empty.
Several members of the Metropolitan Nashville Police Department testified regarding their involvement in this case. Officer Ben Ward, the first officer to testify, said that he arrived at the Taco Bell just as a silver Pontiac backed out of a parking space in the restaurant's parking lot. Officer Ward then saw Alshinawa leave the restaurant and bust out the car's windows before the car sped from the parking lot and drove onto Brick Church Pike. Officer Ward then chased the Pontiac in his police cruiser. The Pontiac led police through both business areas and residential neighborhoods; Officer Ward said that the defendant's car reached speeds of eighty miles per hour on straight stretches of highway in the business areas and sixty-five miles per hour in the residential areas. He said that during the chase, two separate police officers used their police cruisers to set up roadblocks at two different locations. Each time, the defendant narrowly missed hitting the police cruiser. Officer Ward also noted that the chase occurred during “the middle of the day and there [were] a lot of people out, people outside in the parking lot, [and there was a] lot of pedestrian traffic on the sidewalks as well.”
Eventually, the car slid into a yard near the corner of McFerrin Avenue and Carter Street, in a residential area. The defendant and Harris left the car and ran in opposite directions. Officer Ward pursued and caught Harris while the other officers who had joined in the chase followed the defendant. Officer Ward said that Harris had “a little over two hundred dollars” in “[t]wenties, tens and fives” in his possession when arrested; Harris was not, however, carrying a gun when arrested.
Officer Byron Carter testified that he also arrived at the Taco Bell as the defendant's “silver vehicle” exited the parking lot. Officer Carter then joined the police chase of the defendant's car, with Officer Ward's cruiser being the first car behind the defendant and Officer Carter following Officer Ward. Like Officer Ward, Officer Carter also testified that the defendant's car far exceeded the speed limit during the chase; the officer said that his own car reached speeds of sixty-five miles per hour on the commercial roads and forty-five to fifty miles per hour on the residential streets. On cross-examination, Officer Carter said that when the defendant's car first left the Taco Bell there were no pedestrians near the restaurant and there was only “light” vehicle traffic.
Officer Michael Windsor testified that when he arrived in the vicinity of the Taco Bell, he saw the defendant's car exit the store's parking lot at a high rate of speed, with Officer Ward following him. Officer Windsor, who saw the defendant heading south on Brick Church Pike, pulled his police cruiser across the southbound lanes of Brick Church in an attempt to block the defendant's car. Officer Windsor, who did not get out of his car, saw the defendant's car approach his police car at a high rate of speed before it swerved onto the sidewalk, avoiding the police cruiser. He noted that the defendant's actions “put me in fear of my life and safety.” Officer Windsor did not join the chase after the defendant passed him.
Officer Byron Agoston testified that he joined the chase of the defendant's car near the corner of Lischey Avenue and Cleveland Street. After a while, the defendant's car came to a stop in a house's yard and the car's driver (the defendant) and passenger fled in opposite directions. Officer Agoston followed the defendant, who initially ran down the sidewalk, in his police car; when the defendant ran “into a grassy area [and] down into a creek, ” the officer left his car and followed the defendant on foot. The officer followed the defendant through the creek for “[p]robably between fifty and seventy yards” before the defendant left the creek and fell onto the ground. Officer Agoston then arrested the defendant. The officer found forty-two dollars in cash in the defendant's pants pocket; he did not remember what the defendant was wearing at his arrest.
Officer Gary Clements testified that on the day of this incident he was near the intersection of McFerrin Avenue and Carter Street, where the chase ultimately ended, when he received a call about the police chase involving the defendant's car. He saw the defendant's car heading eastbound on Douglas Avenue, so he pulled his police car across Douglas in an attempt to block the defendant. The defendant's car approached the officer's car at a high rate of speed; Officer Clements thought that the defendant was going to hit him, but the defendant “dodged around to the rear of [the officer's] car and . . . went on by.” After the defendant's car passed, Officer Clements pulled forward to let the pursuing police cars pass him before joining the chase himself. When the defendant's car came to a stop, Officer Clements followed Harris, the passenger. Officer Clements drove through a house's yard and pulled his car into an alley, trapping Harris, who was arrested by Officer Ward. Officer Clements later went into a creek near the arrest site and found money, a cellular phone, and a driver's license and Social Security card belonging to defendant Johnson. Specifically, Officer Clements said that the officers recovered money in two separate “piles.” He did not know how much money the officers recovered from the creek.
Detective Norris Tarkington testified that by the time he arrived at the house where the defendant's car stopped, the defendant and Harris had already been arrested. He said that the police found a Taco Bell videocassette, broken glass, some crumpled five dollar bills, and a blue hooded sweatshirt from the defendant's car. He said that when the defendant was caught, he was wearing a maroon hooded sweatshirt. Detective Tarkington brought the defendant and Harris back to the Taco Bell, and Alshinawa said that these two men were the ones whom he had encountered at the restaurant that morning.
The defendant testified that the morning of the incident, he and his fiancée drove to Vanderbilt University, where she was an instructor, in her Pontiac Grand Am. After the defendant dropped off his fiancée, he went to a house on Douglas Avenue to “shoot dice” and “get high.” After staying at the house a while, he and Harris, who was also at the house, went to Taco Bell to get food. The defendant said that he was the only customer in the store at that point. He said that once he got inside the store, he noticed that nobody was working the front counter, so he “hollered ‘hey' “and waited there for five to ten minutes. He “kind of laid on the counter a little bit” because he was “under the influence;” after a while, Alshinawa “kind of shoved my head, ” which prompted the defendant to jump over the counter. The two men “started talking back and forth, ” which in turn escalated to “scuffling.” According to the defendant, during the confrontation the defendant kept “seeing [Alshinawa] give [Moore] this eye contact as if to get something. . . .” After a while, the defendant left the store.
As the defendant headed toward his car, he heard police sirens and saw Alshinawa approach his car with a metal pipe in his hand. The defendant told Alshinawa not to swing the pipe at him, but Alshinawa knocked out the rear window and passenger-side windows with the pipe. The defendant claimed that Alshinawa then screamed, “Is this what you want?” and threw a videocassette into the car. The defendant said that he then “[took] off” when he saw the police, who began chasing his car. He said that another police car “kind of swerved” in front of him and he ran off the side of the road to avoid it. He said that he did not stop when the police chased him because he “was kind of panicked, scared . . . [and] high on drugs, ” and because he did not want to go to jail. The defendant said that after he was arrested, one of the officers took fifty-four dollars out of his (the defendant's) pocket and kept it. He said that Detective Tarkington took him back to the Taco Bell, where Alshinawa identified him. The defendant repeatedly told police that he did not rob anyone and did not have a weapon on him. He also claimed that one of the officers acknowledged to him that he never saw the defendant throw anything out of the car because “he was behind me the whole time.” The defendant said that he did not have a weapon with him and that Alshinawa did not place any money into his pocket during the incident. He said that during the incident he wore a two-piece nylon suit with brown dress shoes, and he also wore a burgundy jacket with a hood on it. He claimed that he did not wear the hood on his head when he went into the restaurant.
On cross-examination, the defendant acknowledged that he smoked marijuana and crack cocaine, used powder cocaine, and drank a twenty-two ounce can of beer at the Douglas Avenue house before going to the Taco Bell. He also denied keeping his hand in his pocket the entire time he was in the store. The defendant gave conflicting testimony regarding Officer Windsor's car; at one point, the defendant denied almost hitting him rather, instead saying that Officer Windsor “was already parked slanted . . . I just went around him.” He said that Officer Windsor did not drive toward him and that the officer gave him sufficient room for him to drive around the police car without incident. He added, “I know better than to hit a police car.” At another point, he said that he did not remember a police car setting a roadblock soon after leaving Taco Bell and that the only car that tried to block him was on Douglas Avenue. The defendant also denied throwing anything from his pockets. He said that his wallet and the money the police found in the creek could have fallen out of his pocket when he fell into the creek.

Johnson I, 2009 WL 2567729, at *1-5.

         The trial court held an evidentiary hearing on Johnson's post-conviction ineffective assistance of counsel claims on August 10, 2012. (Doc. No. 13-15, PageID# 1062.) In considering Johnson's appeal of the trial court's denial of his post-conviction petition, the TCCA summarized that evidentiary hearing as follows:

The petitioner testified that trial counsel represented him for thirteen months, during which time, with the exception of trial counsel's hiring and of the trial, he never saw his attorney. The petitioner introduced a record of his jail visits which covered the duration of his pre-trial incarceration and in which trial counsel's name never appears. The petitioner testified he had eight or nine appearances in court prior to his trial date, but trial counsel never spoke to him about the case in the holding areas. Trial counsel did not provide him with discovery, as they had “no communication.” Trial counsel also failed to provide him with street clothing for the jury trial. The petitioner testified that he was not aware that he would be on trial until the morning the trial began, that he did not have a chance to contact his family or get clothing for trial, and that a court officer was looking for clothing for him on the morning of trial. Counsel did not have an opening statement, did not have any prepared questions written down in anticipation of examining witnesses, and did not take petitioner's suggestions for questions to ask witnesses. The petitioner stated that his trial counsel did not investigate or interview any of the State's witnesses. He testified that, had trial counsel interviewed Ms. Moore, she would have refuted Mr. Alshinawa's statements regarding the assault against her. According to the petitioner, neither the State nor his attorney subpoenaed her, and Ms. Moore was not even present in the Taco Bell.
The petitioner also asserted that trial counsel never conveyed the State's plea offer to plead guilty to the charges and be sentenced to twenty years as a Range II offender. Furthermore, trial counsel never informed him that he could be facing an aggregate sentence of over fifty years. The petitioner testified that, had he known about the potential punishment and the offer, he would have accepted the offer. On cross-examination, however, he maintained he had not committed any robbery, but when asked if he would have pled guilty to the crime, he answered, “It's possible, if I knew what I was facing going to trial. It's highly likely, yes, I would have accepted that 20[-]year deal.” He elaborated that if he had known the range of sentencing he faced, he would have taken the twenty years. He also noted that he had pleaded guilty on other robbery charges because he was guilty. The petitioner testified, as further corroboration that trial counsel had not told him the range of punishment he faced, that trial counsel at the sentencing hearing told the trial court that he did not know how the petitioner's federal bank robbery conviction would be classified for the purposes of establishing range.
The petitioner also testified that he believed his counsel was deficient in not moving to have one of the aggravated robbery counts dismissed, because while the indictment alleged he had taken property from two separate people, the proof showed that he took money only from the business. The petitioner testified that he was ultimately sentenced for aggravated assault as a lesser-included offense of aggravated robbery.
The petitioner next alleged his counsel was deficient in failing to file a motion to suppress evidence of the show-up identification. Trial counsel did not advise him that if he testified, he would essentially be conceding issues of identification by putting himself at the scene of the crime.
The petitioner further alleged that his trial counsel erred in allowing the trial court to count his two prior state convictions for aggravated robbery separately, insisting that, as they were both committed on the same day, they should only count as one conviction for the purposes of establishing a sentencing range. The petitioner's appellate counsel refused to raise this as an issue on appeal.
Detective Norris Tarkington, who investigated the crime and was a witness at the petitioner's trial, testified that he did not recall trial counsel ever contacting him to discuss the facts of the case or the identification. Regarding the show-up identification, Detective Tarkington testified that the defendant was standing next to a police vehicle in handcuffs that were not readily visible and that he then brought the witnesses individually to make an identification. He testified that at the time, it was standard procedure to conduct a show-up if a suspect were apprehended within two hours of a crime. He elaborated on cross-examination that the petitioner had been continuously in sight of police from the time he left the parking lot until the time he was apprehended. Detective Tarkington recalled that Ms. Moore told him that the petitioner had grabbed her by the hair and told her to open the cash register, then pulled her to the back. He did not recall Mr. Alshinawa saying that Ms. Moore was forced to lie on the floor or that she was not dragged but walked to the back of the store alone to tell him about the robbery. Mr. Alshinawa had also not told him that the petitioner slammed Ms. Moore's head into a steel door or that he and the petitioner had begun shoving each other. Detective Tarkington did not recall any prosecutor contacting him regarding finding Ms. Moore.
David Hopkins, who represented the co-defendant at trial, testified that he made a few attempts to contact the petitioner's attorney prior to trial to discuss trial strategy, but he was unsuccessful. Close to the time of trial, he was able to speak with petitioner's attorney and attempted to arrange a meeting, but they were unable to do so. Mr. Hopkins testified that on the day of trial, he had arrived early with clothing for his client, but trial counsel did not arrive on time, forcing the parties to wait for him. Trial counsel then asked to see Mr. Hopkins's copy of the discovery materials and started to review them. As he flipped through the discovery, he asked Mr. Hopkins a question similar to: “What's this case about?” Mr. Hopkins testified that he did not speak to trial counsel because the jury pool was already being brought into the courtroom, but trial counsel “seemed serious” in asking the question.
The petitioner's appellate counsel testified that he did not challenge the sentencing as a Range III offender because he believed the petitioner was sentenced within the correct range, having committed three prior Class B felonies and one Class C felony.
Trial counsel agreed that the petitioner had eight or nine court appearances and testified that they had “multiple discussions” during which the petitioner asserted that he had been at the Taco Bell, but the robbery was a misunderstanding and he had committed no crime. The petitioner had maintained his innocence and “he wasn't going to take any pleas.” Trial counsel asserted that, while he did not give the petitioner the State's letter, he did convey the plea offer, and the petitioner rejected it. Trial counsel testified that, “basically they're wanting him to plead to a lot of time, and he said, well, I'm innocent, I didn't rob anybody, I didn't do it. He always said the same thing....But in any event, even prior to the trial, he basically said that I'm not taking a deal of any sort.” He acknowledged that he did not know at the time of the sentencing hearing how the petitioner's federal bank robbery conviction would be classified in Tennessee. He testified that he believed the classification was usually decided by the trial court, using analogous state crimes. He testified he did not look at the petitioner's prior convictions to determine if they were on the same day. Trial counsel testified that he did not think the petitioner would get as lengthy a sentence as he did. Regarding discussions with the petitioner about sentencing, trial counsel testified as follows:
Q. Okay. Did you ever have a discussion about the range of punishment he was facing?
A. No, because I don't think we discussed what the total range was. I think we talked about what he could get for each individual offense, and mainly we were focused on the aggravated robbery portion, because I told him he could get eight to 30 on those cases. But we didn't talk about if the cases got split up and if they were consecutive and you know, everything could come down. We were mainly focused on the class B felonies.
Trial counsel testified that the defense theory of the case was that the petitioner lacked intent to rob the victims and that Mr. Alshinawa had been disrespectful to the petitioner, who was a customer, and the two became involved in a physical altercation. He testified that he did not move to dismiss the second count of aggravated robbery because he believed that the issue of a second robbery was a jury question. He testified that he didn't challenge the show-up both because the police had followed the petitioner from the actual scene of the crime and because the petitioner acknowledged being at the Taco Bell.
Trial counsel acknowledged not interviewing any of the State's witnesses, but stated he spoke with the police officers and detectives regarding the case. He stated that he did not give the petitioner a copy of the discovery because the petitioner was in jail, and he didn't want the documents available to other inmates. However, he asserted he did discuss the discovery with the petitioner. He acknowledged looking at Mr. Hopkins's discovery, but stated he did so because the photographs were of better quality than his copy. He testified that he did ask what the case was about but did so as a joke. He also testified that he had been in contact with the petitioner's family regarding bringing clothing, and that he was late because he was in the building trying to find clothing for the petitioner with the aid of the court officers.
Trial counsel admitted that he had received two public censures from the Board of Professional Responsibility in 2004 and 2006 for neglecting and failing to prepare a child support case and for filing a late notice of appeal and brief in another case. He testified that the petitioner had also filed a complaint against him but that the complaint had been found to be without merit.

Johnson II, 2014 WL 793636, at *2-5.

         III. Issues Presented for Review

         Johnson filed this petition on November 26, 2014 (Doc. No. 1), arguing that he “was denied the effective assistance of counsel at trial and sentencing in violation of the Sixth Amendment to the United States Constitution as well as the right to the Due Process of Law[3] as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.” (Id. at PageID# 7.) In his petition, Johnson alleges that trial counsel[4] was ineffective in that he:

1) “failed to investigate the case at all or talk to a single witness” and thereby lost an opportunity to develop a defense (id. at PageID# 8);
2) “failed to communicate with Mr. Johnson at all prior to trial”-jail records indicate that trial counsel did not once visit Johnson (id.);
3) “failed to communicate and develop a strategy with Mr. Johnson at all prior to trial” which led to Johnson's conviction (id.);
4) “failed to advise Mr. Johnson at all regarding [his] decision to testify… and the consequences of that decision, ” which led to Johnson conceding the issue of identity (id. at PageID# 9); 5) “failed to communicate the State's plea offer, ” which Johnson states he would have taken had he received it (id.);
6) “failed to engage in any pretrial litigation whatsoever, ” filing no motions and making no challenges to the evidence presented (id. at PageID# 9-10);
7) “failed to move to suppress an illegal ‘show up' identification conducted by the police, ” forfeiting a meritorious motion (id. at PageID# 10);
8) “failed to object to a [m]ultiplicitous indictment” which resulted in “a sentence for a lesser-included offense” on one charge “rather than a dismissal” (id.);
9) “failed to object to hearsay presented at the trial” because he was unprepared (id. ...

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