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Thomas v. United States

May 5, 2006

REGINALD R. THOMAS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

On May 17, 2002, following a two week jury trial, Petitioner Reginald R. Thomas was found guilty of eleven counts of bank robbery under 18 U.S.C. § 2113(a). On September 4, 2002, this court sentenced Thomas to a total term of 230 months in prison. The Seventh Circuit upheld his conviction upon appeal. United States v. Thomas, 79 Fed. Appx. 908 (7th Cir. 2003), cert. denied, 124 S.Ct. 2926 (2004). Petitioner now seeks a writ of habeas corpus under 28 U.S.C. § 2255, challenging his sentence and conviction on constitutional grounds. Specifically, he claims that the court calculated his sentence based on factors not included in the indictment or found by the jury in violation of the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004); that the trial court lacked jurisdiction because the indictment failed to allege the jurisdictional element of the crime; and that his defense attorney was ineffective for failing to challenge the sentence, the indictment, and the sufficiency of the evidence with respect to Count One.*fn1 This court now considers these issues.

BACKGROUND

On February 20, 2001, a federal grand jury indicted Petitioner Thomas on eleven counts of bank robbery.*fn2 (United States v. Thomas, No. 01-CR-67, Doc. 9.) Count One of the indictment reads:

On or about December 27, 2000, at Aurora, in the Northern District of Illinois, Eastern Division, REGINALD THOMAS, defendant herein, by intimidation did take from the person and presence of a teller at Harris Bank, 1252 North Lake, Aurora, Illinois, approximately $17,500 in United States Currency belonging to and in the care, custody, control, management, and possession of Harris Bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation; In violation of Title 18, United States Code, Section 2113(a). (Id.) The remaining ten counts are worded almost identically, varying only in the date and location of the crime, and the amount of money taken.*fn3 (Id.)

Petitioner's trial began on May 17, 2002. The defense did not challenge the indictment as defective in any respect. Without objection, the government presented several documents that established the amount of money each bank lost as a result of each robbery. (Tr. at 405, 606.) The government also presented FDIC certificates for those banks, again without objection. (Id. at 405-06, 607.)

In support of Count One of the indictment, the government called Christina Hess, a bank teller at the Harris Bank in Aurora, Illinois. Hess testified that an African American man in his late 20's or early 30's, standing nearly six feet tall and thin*fn4 approached her teller window. (Id. at 508, 521-22.) Petitioner was 44 at the time of the alleged robbery. (Memorandum in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (hereinafter, "Pet. Mem.,") at 12-13.) According to Hess, the robber produced a checkbook from a white envelope and initially asked her to cash a check. (Tr. at 508-09.) The robber then slid a small, handwritten note to Hess, which read: "This is a robbery." (Id. at 509, 520.) After Hess grabbed a stack of small denomination bills and attempted to place them in the robber's envelope, he instructed her to start with the larger denomination bills. (Id. at 509-11.) Throughout this interaction, Hess reports that the robber did not lean into her through the teller window, but rather remained standing straight up, telling her to hurry and to stay quiet in a calm voice. (Id. at 510-11.) Because the currency in Hess's drawer was too thick to fit in the robber's envelope, she handed the money to him. (Id. at 512.) Although Hess testified that she did not see how the robber exited the bank's parking lot, defense counsel's questions on cross-examination imply that she might have told an officer who arrived on the scene immediately afterwards that the robber had left in a light blue, medium-sized car. (Id. at 522-23.)

At trial, Hess admitted that she did not think she would recognize the robber nearly a year and a half after the events of December 27, 2000. (Id. at 514.) On February 1, 2001, however, just two months after the robbery, Hess did pick Petitioner from a six-candidate photo array shown to her by an investigating officer. (Id.) At the time of the identification, the officer had asked Hess how sure she was that the man she had identified in the photo array was the man who had robbed her bank. (Id. at 529.) Her response was that on a scale of one to ten, with ten indicating, the highest level of certainty, she was a seven. (Id.) In her words, it was "most likely" the same person. (Id.) On cross-examination, Hess acknowledged that Petitioner's photo was the darkest of the six and that Petitioner's face was thinner than four of the other candidates. (Id. at 525.) The defense also suggested that based on their pictures in the photo array, three of the candidates could not be in their 20's. (Id.) Hess, however, disagreed and thought that only two of the candidates were clearly not in their 20's. (Id. at 525-26.)

The government presented testimony from tellers at the other ten banks Petitioner was charged with robbing.*fn5 In court, each of these tellers identified Petitioner as the man who had robbed his or her bank.*fn6 (Id. at 53, 110, 163, 309, 339, 373, 414, 535, 564.) Each teller also picked Petitioner's photo from a photo line-up during the investigation following each robbery. (Id. at 44, 118, 172, 315, 345, 382, 417, 478, 542, 573.) These witnesses, further, identified articles of Petitioner's clothing and other items taken from Petitioner at the time of his arrest as belonging to the bank robber. Not all the details were identical. Some tellers reported that the bank robber carried a plastic bag rather than an envelope. (Id. at 74, 165.) Others testified that the bank robber leaned in close to them, rather than standing straight up. (Id. at 349, 472.) There was enough consistency, however, for investigators to dub the perpetrator the "Paper Bandit" and pursue a single suspect for all eleven crimes. (Id. at 670.)

Petitioner took the stand to testify in his own defense. He claimed innocence on all counts and suggested he was the victim of mistaken identity. (Id. at 831-33.) When confronted with evidence of large cash purchases following the robbery described in Count One, however, he did admit to purchasing a black car with cash on December 28, 2000, the day after that robbery. (Id. at 800-01.) Petitioner explained that he had borrowed the majority of the money for this purchase from his wife, whose own testimony corroborated that of the Petitioner. (Id. at 733, 800.) Petitioner also admitted using cash, mostly bills in large denominations, to purchase a diamond ring on the same date, but claimed he had earned the cash by remodeling his brother's house and by driving a limousine on weekends. (Id. at 824-25.) Petitioner's brother, Amos Thomas, confirmed that Petitioner had been living with him and remodeling his home during the relevant time period. (Id. at 740.) Amos Thomas testified that Petitioner rarely left the house, but cross-examination revealed that Amos could not provide Petitioner with a perfect alibi for any of the counts. (Id. at 749-75.)

This court also allowed Petitioner to call an expert witness, Dr. Geoffrey Loftus, to dispute the reliability of eyewitness identification in general. Dr. Loftus' testimony in this case was similar to testimony he has given in other prosecutions. See, e.g., United States v. Mathis, 264 F.3d 321, 333-34 (3d Cir. 2001). Among other issues, Dr. Loftus testified on the tendency of memories to be altered by post-event information and the susceptibility of perception to errors elicited by environmental influences. (Tr. at 856-60.) In Dr. Loftus's opinion, the fact that multiple witnesses identified Petitioner as the bank robber could be consistent with the notion that Petitioner was not in fact the culprit. (Id. at 899.)

Nonetheless, the jury convicted Petitioner of eleven counts of bank robbery, and this court sentenced Thomas to a 230-month prison term. On direct appeal, Petitioner argued, unsuccessfully, that the police lacked probable cause for his arrest and that the district court erred in allowing the government to use his prior felony convictions to impeach him. Thomas, 79 Fed. Appx. at 909. The Seventh Circuit, however, affirmed the conviction, id. at 914, and the Supreme Court denied Petitioner's request for a writ of certiorari on June 28, 2004. 542 U.S. 945 (Mem.) (2004).

DISCUSSION

Under 28 U.S.C. § 2255, an individual convicted of a federal crime is permitted to move the district court to vacate, set aside, or correct his or her sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255; see also Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994) (Collateral relief under ยง 2255 is available only for "an ...


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