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Thomas v. United States

October 22, 2010

TERRY THOMAS PLAINTIFF-PETITIONER,
v.
UNITED STATES OF AMERICA DEFENDANT-RESPONDENT,



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

Hon. Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Terry Thomas was convicted by a jury of possessing and conspiring to possess heroin and crack cocaine with intent to distribute. He was sentenced as a career offender to a term of 360 months' imprisonment. In 2008, the Court of Appeals for the Seventh Circuit affirmed Thomas's convictions and sentence. Thomas has now filed a pro se motion to vacate his conviction pursuant to 28 U.S.C. § 2255, arguing that his attorneys' failure to file a motion to suppress, failure to object to the admission of the mug shots of his co-conspirators, and failure to obtain various forms of impeachment evidence, amounted to ineffective assistance of counsel in violation of his Sixth Amendment rights. Thomas also advises the court that earlier convictions that supported the sentencing enhancement are on appeal. For the reasons set forth below, Thomas's motion is denied.

BACKGROUND

The facts set forth below are drawn from the Seventh Circuit's opinion, see United States v. Thomas, 520 F.3d 729 (7th Cir. 2008), except where noted.

Factual Background

In 1999, Chicago police officers investigating open-air drug sales in a south side neighborhood observed Petitioner, Terry Thomas, directing street-level drug trafficking on four separate occasions. Thomas, 520 F.3d at 732. The first of these occasions took place on September 5, 1999, when police officers set up surveillance on the 800 block of West 50th Place.

One of the officers, positioned inside an abandoned building, saw Thomas and two others working in concert to sell drugs to passing motorists and pedestrians. Thomas and one of his accomplices solicited potential buyers by shouting "rocks," a street name for crack cocaine, at passersby. Thomas would direct those who approached him to a third participant, a woman, who stood a few feet away ready to make the sales. After some time, apparently concerned that the police might be watching these transactions, Thomas ordered his accomplice to check the abandoned building in which the officer was hiding. The accomplice entered the building and was arrested by the officer inside. The police also arrested Thomas, but promptly released him.

A second episode took place two days later, on September 7, when Chicago police officers patrolling the same block of West 50th Place observed several people forming a queue in an alley. The police drove into the alley and overheard Thomas yelling the words "rocks" and "blows," the latter term being a street name for heroin. When Thomas saw the police officers, he yelled "four-seven," a warning of the presence of police. The police detained and searched Thomas, but found no contraband and did not arrest him.

The third episode occurred on October 22, 1999, when Chicago police officers once again set up narcotics surveillance on the 800 block of West 50th Place. An officer positioned in an abandoned building observed Thomas shouting the words "rocks" and "blows" to persons in passing cars and directing them to a woman who would in turn make the sales. A young man standing on the sidewalk noticed the officer's presence in the building and alerted Thomas, who in turn alerted the woman. She ran from the scene. Police efforts to locate her were unsuccessful. Id. Thomas was again arrested and again later released. (Arrest Report, Ex. 1 to Petitioner's Traverse.)

The fourth and last episode took place two weeks later, on November 3. (Trial Tr. at 128-29.) On that occasion, undercover police officers posing as construction workers positioned themselves in the back of a school bus parked close to the 800 block of West 50th Place. (Id. at 134-36.) The officers watched as a man, later identified as Michael War, engaged in conversation with passersby and directed them to another man sitting on a nearby porch. Thomas, 520 F.3d at 732-33. The man sitting on the porch, later identified as Tyrone Thompson, carried out the drug sales. Id. at 733.

After observing Thompson make several sales, the officers saw Thomas approach War and ask him, "are you out?" War asked Thompson the same question. Thompson said he was out (that is, had run out of his supply of narcotics), and War related this to Thomas, who directed War to meet him by the yard. Id. The officers observed as War walked toward a wooden fence approximately 15 feet from the officers and waited there while Thomas walked through the backyard of the house and retrieved a large bag from underneath a shrub. (Trial Tr. at 156-57.) Thomas reached into the bag, pulled a smaller golf-ball-sized bag from the larger bag, and returned the large bag to the shrub. He then stepped to the fence and handed the small bag over the fence to War. (Id.) The police witnessed one additional transaction in which Tyrone Thompson made a sale of a small item retrieved from this new bag. (Id. at 169.) At that point, the police terminated the surveillance and proceeded to make arrests. (Id.)

When Thompson saw the police approaching, he tossed the plastic bag he was holding to the ground. (Id. at 172.) Police recovered the bag and found inside it 20 blue-tinted bags containing heroin. (Id. at 173.) The police arrested War, Thompson, and Thomas. (Id. at 170-71; 174; 178.) One of the officers returned to the back yard where he had seen Thomas retrieve the larger plastic bag from beneath a shrub. (Id. at 175.) The officer "flipped" the fence, entered the backyard and recovered the bag, which was found to contain heroin and crack cocaine. (Id. at 177.) Officers later performed a search of the house, reportedly with the permission of the woman who answered the door, but found nothing incriminating inside. (Id. at 179-80.)

Procedural History

Based on the November 3 incident, Thomas was indicted on one count of possessing heroin and in excess of 5 grams of crack cocaine with intent to distribute. Thomas, 520 F.3d at 733. By way of superseding indictments, the government added a conspiracy count alleging that from August to November 1999, Thomas conspired with War, Thompson, and unnamed others to possess heroin and in excess of 5 grams of crack cocaine with intent ...


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