USA v. Johnson et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiffs,
vs.
ISAAC JOHNSON,
Defendant.
8:19CR87
AMENDED ORDER
The Eighth Circuit Court of Appeals has remanded this case and instructed the
Court to consider whether to issue a certificate of appealability as to Counts II and III
raised in Defendant’s motion under 28 U.S.C. § 2255. Filing No. 262.
The Court may grant a certificate of appealability only where the movant “has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
movant must show “the issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Flieger v. Delo,
16 F.3d 878, 882–83 (8th Cir. 1994) (citing Lozada v. Deeds, 498 U.S. 430, 432, (1991)
(per curiam)).
The Court summarily dismissed Defendant’s second and third claims made in his
§ 2255 motion: respectively, ineffective assistance of counsel for failure to argue the
search of his vehicle was illegal under Collins v. Virginia, 584 U.S. 586 (2018), which held
the automobile exception does not permit police to enter the curtilage of a home and
ineffective assistance of counsel to fully explain the basis for an objection under Fed. R.
Evid. § 404(b) to his prior Texas conviction.
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2
“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable” unless the “strategic choices ‘result[ed]
from lack of diligence in preparation and investigation.’” Armstrong v. Kemna, 534 F.3d
857, 864 (8th Cir. 2008) (citations omitted).
As to Count II, as explained in greater detail in the Court’s summary dismissal
order, Filing No. 237 at 7–8, Defendant’s counsel was aware of the Collins case and
considered its applicability to Defendant’s case, but determined it was not worth pursuing
as a matter of strategy. Given this, it is not debatable that counsel’s performance fell
within the wide range of acceptable performance. Defendant is not entitled to a certificate
of appealability on this issue.
As to Count III, Defendant’s counsel’s strategic choice to object to the prior Texas
conviction in the manner he did at trial did not fall outside the wide range of acceptable
performance. Counsel did object at trial, but Defendant takes issue with his failing to file
a written objection and failing to provide more rigorous argument about the standard
under Fed. R. Evid. 404(b). Given that counsel did raise the objection, it is not debatable
that his strategic choice to address the objection in a specific manner could not amount
to deficient performance. Furthermore, Defendant was permitted to fully explore his
argument that counsel should have challenged the applicability of the sentencing
enhancement itself, a related argument the Court did find meritorious. Given these facts,
Defendant is not entitled to a certificate of appealability on this issue.
IT IS ORDERED:
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1) No certificate of appealability will issue as to Count II or Count III1 of
Defendant’s motion under 28 U.S.C. § 2255.
2) The Clerk of the Court is directed to send a copy of this order to the Eighth
Circuit Court of Appeals and to Defendant at his last known address.
Dated this 25th day of February, 2026.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
1 This order has been amended to correct a typo in the original order which previously said, “Count II or
II.”
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