Wendell Johnson v. United States ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 17, 2018
Decided January 18, 2018
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY CONEY BARRETT, Circuit Judge
No. 16-2356 Appeal from the United
States District Court for the
WENDELL JOHNSON, Southern District of Illinois.
Petitioner-Appellant,
v. No. 11-CV-580-NJR
Nancy J. Rosenstengel, Judge.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Order
Wendell Johnson was convicted in 2009 and sentenced to 300 months’ imprison-
ment, the middle of his Guidelines range of 262 to 327 months. That range reflected his
extensive criminal history, which led to his classification as a career offender. District
Judge Stiehl, who presided, remarked that a long sentence was necessary to protect so-
ciety from his misconduct. This court affirmed. 624 F.3d 815 (7th Cir. 2010).
In this proceeding under 28 U.S.C. §2255, Johnson contends that his lawyer fur-
nished ineffective assistance at sentencing by failing to contest the presentence report’s
conclusion that Johnson had been diagnosed with antisocial personality disorder. He
No. 16-2356 Page 2
had indeed been so diagnosed, but his new lawyer contends that more work by his
former lawyer would have revealed that the diagnosis is incorrect and that Johnson
should have been classified as afflicted with posttraumatic stress disorder as a result of
his father’s violent treatment of him. (His alcoholic father beat the children and fed
them alcohol “to calm them down.” When Johnson was eight, his father murdered his
mother and killed himself a few days later.) Johnson’s lawyer at sentencing stressed his
unhappy family history and contended that his upbringing drove him to drugs and
crime as coping devices. Counsel argued that he deserves lenience. His current lawyer
maintains that it would have been better to contest the diagnosis and contend that John-
son has a treatable condition. (The parties tell us that PTSD is treatable while antisocial
personality disorder is not.) Judge Rosenstengel, presiding after Judge Stiehl’s retire-
ment, concluded that the name attached to Johnson’s condition would not have mat-
tered to Judge Stiehl, whose sentence was based on the facts of Johnson’s criminal histo-
ry and his latest crime. 2016 U.S. Dist. LEXIS 47763 (S.D. Ill. Apr. 8, 2016).
We need not add much to Judge Rosenstengel’s thorough opinion. Johnson contends
on appeal that the court should have held an evidentiary hearing to explore the ques-
tion whether treatment of PTSD would have reduced the risk of recidivism, for a lower
risk means less need to incapacitate the offender. But the evidentiary submissions in
this collateral proceeding, which include several reports from mental-health profession-
als, do not maintain that Johnson’s recidivism risk could be materially affected by
treatment for PTSD. His condition is not a short-term affliction, nor is his criminal rec-
ord the work of a few months or years. He has a chronic condition (no matter the label)
and has engaged in life-long criminality. Judge Rosenstengel’s opinion narrates some of
the crimes between Johnson’s first conviction (for burglary at age 11) and the current
one (for selling cocaine at age 34), with many of the crimes involving “a shocking and
disturbing level of violence.” 2016 U.S. Dist. LEXIS 47763 at *20; see also id. at *19–22. Be-
cause Johnson did not try to show in this collateral proceeding how it would have been
possible in 2009 to persuade Judge Stiehl that better or different treatment would have
produced a lower risk of Johnson’s continuing his life of violent crime, there was no
disputed issue to hold a hearing about.
AFFIRMED