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Thelen v. Cross

United States District Court, Seventh Circuit

January 7, 2014

PATRICK THELEN, Petitioner,
v.
JAMES N. CROSS, Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

Introduction and Background

Pending before the Court are a Report and Recommendation (Doc. 55), a motion to correct reassignment (Doc. 75) and an objection to prejudicial delay in this action and request for evidentiary hearing on factual dispute (Doc. 76). Based on the following, the Court grants the motion to correct reassignment which the Court construes as a motion to withdraw consent, denies the request for evidentiary hearing, and adopts in its entirety the Report and Recommendation.

First, the Court addresses the motion to correct reassignment which has been construed as a motion to withdraw the consent (Doc. 75). On December 9, 2013, the respondent filed his consent to the Magistrate Judge presiding over this matter (Doc. 73). The next day, the Notice of Referral was entered transferring the case to Magistrate Judge Donald G. Wilkerson (Doc. 74). Thereafter, Thelen filed the motion. Thelen asserts that he has not consented to a final disposition by a Magistrate Judge in this case. A review of the record reveals the contrary; the record reflects that he did consent to the Magistrate Judge presiding over his case. In fact, the record reflects that he consented twice: first he sent a consent that is dated January 24, 2012 and filed on January 30, 2012 (Doc. 3) and second he sent a consent that is dated January 30, 2012 filed on February 1, 2012 (Doc. 5). Despite these consents, the Court will allow Thelen to withdraw his consent to Magistrate Judge Wilkerson presiding over his case. Thus, the case is reassigned to the undersigned judge for final disposition.

Next, Thelen moves the Court for an evidentiary hearing on his habeas corpus petition. Having closely examined the record, the Court concludes that an evidentiary hearing is not necessary in this matter.

Lastly, the Court addresses the habeas corpus petition. Thelen, an inmate incarcerated at the Federal Correctional Institution at Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge a sentence imposed on November 24, 1997, after a jury trial in the Eastern District of Michigan. See United States v. Thelen , 97-cr-20015-RHC-CEB. He claims that new Supreme Court jurisprudence invalidates his label as a "career offender" during sentencing pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1. Separately, he challenges the aggregation of his sentences under 18 U.S.C. § 3584(c).

On September 29, 1986, petitioner pled guilty to Unlawful Delivery of Marijuana in Tulsa County District Court, Case No. CF-1986-2925 (Doc. 1, p. 12). On November 26, 1986, the trial court withheld a finding of guilt, placed petitioner on probation, and deferred his sentencing until November 1, 1991 (Doc. 1-1, p. 5). According to the order of probation, he would be discharged without a judgment of guilt, and the case would be dismissed, if petitioner successfully completed his five year probation term. However, on March 24, 1988, the Oklahoma district attorney filed an application to accelerate judgment and sentencing due, in part, to petitioner's unrelated conviction for forgery in Michigan. See Thelen v. United States, 131 F.Appx. 61, 67 (6th Cir. 2005). Petitioner eventually completed a sentence for various Michigan crimes but was never sentenced for this Oklahoma crime, despite the March 24, 1988 motion to accelerate judgment (Doc. 1-1, p. 3).

Petitioner was sentenced on November 24, 1997, following a jury trial, to thirty years and thirty-seven years on two drug trafficking counts (cocaine and methamphetamine), and ten years for being a felon in possession of a firearm, to be served concurrently (Doc. 1, p. 7). Pursuant to U.S.S.G. § 4B1.1, petitioner received a sentencing enhancement for being a career offender, with two predicate offenses: (a) his disputed November 25, 1986, Oklahoma conviction and (b) an undisputed November 3, 1988, Michigan marijuana conviction (Doc. 1, p. 7). The facts of his disputed Oklahoma conviction are as follows as stated by the Sixth Circuit Court of Appeals:

On August 21, 1986, Thelen was arrested in Oklahoma for delivery of marijuana. On November 25 of that year, he received a "deferred" sentence of five years probation. However, on March 24, 1988, the Tulsa County district attorney filed an application to "accelerate" judgment on the ground that Thelen had violated his terms of probation by failing to report, possessing marijuana and using cocaine, leaving the state of Michigan without authority, and failing to pay his probation fees. Although a bench warrant was issued, Thelen was incarcerated in Michigan at that time and was never transferred to Oklahoma for further proceedings. According to Thelen, his Oklahoma conviction should not count in the career offender calculation because it was more than ten years old at the time of his federal offense.

Thelen v. United States, 131 Fed.Appx. 61 * 2 (6th Cir. 2005). Several months after this sentence was imposed, on March 5, 1998, petitioner's 1986 Oklahoma case was dismissed upon request of the state. (Doc. 1-1, p. 7). It appears that no conviction was ever entered.

Since his federal sentencing, petitioner has filed numerous appeals concerning both his November 24, 1997, sentencing and his 1986 Oklahoma case. On June 18, 1999, the Sixth Circuit affirmed petitioner's guilty verdict from his federal jury trial. United States v. Thelen, 182 F.3d 919 (6th Cir. 1999). Petitioner then filed a § 2255 motion to vacate his sentence on June 14, 2000 (Doc. 72 in criminal case). On March 28, 2005, the district court's denial of petitioner's § 2255 motion was affirmed by the Sixth Circuit. Thelen v. United States, 131 F.Appx. 61 (6th Cir. 2005), cert. denied, 546 U.S. 969 (2005).

Petitioner also filed challenges in the Tenth Circuit to the disposition of the 1986 Oklahoma case. On December 7, 2009, he filed a § 2254 petition for writ of habeas corpus with the Northern District of Oklahoma (Doc. 1 in Thelen v. Oklahoma, 2010 WL 1629078 (N.D. Ok. 2010)). The Tenth Circuit ultimately affirmed dismissal of this petition for a lack of jurisdiction, stating that petitioner was not in custody under his 1986 sentence. Thelen v. Oklahoma, 396 F.Appx. 489, 491 (10th Cir. 2010). The Tenth Circuit furthermore recommended that petitioner bring his challenge through a § 2255 petition filed in the Eastern District of Michigan. Id. Petitioner followed that recommendation, but his second § 2255 motion was denied by the Sixth Circuit on September 15, 2011 (Doc. 123 in criminal case). The Sixth Circuit noted that Thelen's original 2255 petition sought essentially the same relief and found neither new evidence nor a new rule of constitutional law merits a second review. The Sixth Circuit found:

Thelen now seeks to file a second § 2255 motion in which he argues that, because his 1986 Oklahoma deferred sentence was expunged as a matter of law at the time of his sentencing, he was wrongfully sentenced as a career offender... [Thelen] does not proffer new evidence which clearly exonerates him. Nor does he call attention to any new rule of constitutional law articulated by the Supreme Court that applies to his case.

In re Thelen, ___ WL ___, No. 10-2317, *1-2 (6th Cir. 2011). Following that denial, petitioner filed ...


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