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Tomkins v. United States

United States District Court, N.D. Illinois, Eastern Division

April 23, 2018

JOHN P. TOMKINS, Petitioner,



         This matter is before the Court on Petitioner John P. Tomkins's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 [1]. Also before the Court are Petitioner's motion regarding supplemental authorities [16], motion for release on bond [5], motion for a status report [17], motion for an expedited ruling [18], and motion for the Court to take judicial notice [28]. The Court considered the additional authorities identified in Petitioner's motion regarding supplemental authorities [16] and motion for the Court to take judicial notice [28], and thus the motions [16; 28] are granted.[1] For the reasons set forth below, the Court denies Petitioner's habeas corpus petition [1] and declines to issue a certificate of appealability. The Clerk is directed to enter judgment in favor of the United States. Petitioner's motion for release on bond [5], motion for a status report [17], and motion for an expedited ruling [18] are stricken as moot. Petitioner's motion [27] to strike the government's memorandum concerning Teague v. Lane is denied.

         I. Background

         A. Criminal Trial

         In 2009, a grand jury returned a thirteen-count superseding indictment charging Petitioner with mailing threatening communications in violation of 18 U.S.C. § 876(b) (Counts 1-10), unlawful possession of destructive devices in violation of 26 U.S.C § 5861(d) (Count 11-12), and using, carrying, and possessing a destructive device in in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii) (Count 13).

         In 2005, Petitioner began sending threatening letter to targets, demanding that they purchase sufficient shares of certain stock he owned to drive up the price. Petitioner threatened that something “very tragic” would happen to the targets' loved ones if Petitioner's demands were not met. In 2007, Petitioner sent victims packages containing homemade devices that appeared to be pipe bombs with a letter that stated “BANG!! YOU'RE DEAD” and warned “[t]he only reason you are still alive is because I did not attach one wire * * * There is enough gunpowder and steel shot in that tube to kill anyone in a ten foot radius when it goes off.”

         Investigators identified Petitioner as a suspect using purchasing records for the stocks referred to in his letters. Searches conducted on Petitioner's home and Petitioner's storage lockers revealed two additional pipe bombs, drafts of the threatening letters, bomb-making materials, information about the targets and their residences, and financial records related to the stocks mentioned in his threats.

         As noted by the Seventh Circuit on direct appeal, the case was heavily litigated leading up to trial. United States v. Tomkins, 782 F.3d 338, 348 (7th Cir. 2016). One point of contention was Petitioner's effort to suppress evidence from the government's searches. The warrants obtained in connection with the searches failed to impose a time limit for the financial records to be seized. Accordingly, the Court concluded that the seizure of a filing cabinet containing documents relating to Petitioner's role as treasurer of his local union exceeded the scope of the warrant. Still, the Court concluded that even though the warrants were deficient in some respects, this did not mean that the warrants were impermissible general warrants. The warrants and the attachments to the warrants contained detailed categories of evidence and were supported by thorough affidavits. Furthermore, the good-faith exception permitted seizure of the items Petitioner sought to exclude.

         Petitioner also requested to represent himself. The Court granted that request and allowed Petitioner to proceed pro se, with stand-by counsel. However, the Court denied Petitioner's request for hybrid counsel.

         Petitioner's trial began on April 23, 2012. In its case-in-chief-which took up the first week and a half of Petitioner's trial-the government presented the testimony of nearly 40 witnesses, including employees of the investment firms that received Petitioner's mailings and government investigators involved in identifying Petitioner. The government also introduced extensive physical evidence, including the threatening letters, handwriting samples, the draft letters and devices recovered from Petitioner's property, and photographs of the devices at issue. Finally, the government introduced the expert testimony of Raymond Voorhees and John Winslow, who testified as explosives experts, and Officer McGuire of the Chicago Police Bomb Squad.

         Mr. Voorhees testified that the devices had components of improvised explosive devices. However, he could not be certain whether the devices would have exploded if the loose wires were attached, because the devices had been rendered safe by blasting them with a water cannon before Mr. Voorhees examined the devices. He further testified that-in his opinion-the Chicago device was not functional without the wire attached.

         Mr. Winslow testified that the devices would have functioned if the unattached wire had made contact with the positive terminal of the battery. He further testified that the devices also could have ignited due to physical shock, friction, heat, static electricity, and even possibly as a result of being handled improperly during shipping.

         Like Mr. Voorhees, Officer McGuire also testified that the Chicago device was not functional without the wire attached. During his testimony, Officer McGuire mentioned that he had taken an x-ray of the Chicago device before the pipe had been broken open. When the government displayed a copy of the x-ray on a monitor in front of Officer McGuire, Petitioner objected that it was the first time he had seen the x-ray. The government admitted that the x-ray was not in the materials provided to Petitioner. The Court prohibited the government from introducing the x-ray in its case-in-chief. However, the Court warned Petitioner that the x-ray might come in as rebuttal evidence.

         Before resting its case, the government moved to bar Petitioner from testifying about his subjective intent in creating his devices. The Court concluded that Petitioner's subjective intent was irrelevant for determining whether the devices constituted “destructive devices” in Petitioner's case. In reaching this conclusion, the Court relied upon United States v. David Johnson, 152 F.3d 618 (7th Cir. 1998), which held that subjective intent is irrelevant for determining whether something constitutes a “destructive device” when there is no legitimate social or commercial purpose for the device.

         In his case, Petitioner introduced the testimony of three character witness before testifying himself. During his testimony, Petitioner admitted to creating and sending the threatening letters and packages containing explosive materials, but testified that the devices were not designed to explode. Specifically, Petitioner claimed that “certain design features” in each device “made them nondestructive devices.” Petitioner also testified that the unattached wire was fully insulated so that it could not connect with the battery and that he tested each device with a voltmeter “to make sure that no electricity was flowing through them.” The government moved to introduce the x-ray to rebut Petitioner's claim that he separated the igniter from the gunpowder. The Court allowed the government to introduce the x-ray as rebuttal evidence.

         After a jury found Petitioner guilty on all but one count, Petitioner moved for a mistrial, raising (among other arguments) the argument that the Court erred by allowing the government to introduce the x-ray that it failed to disclose as required by Rule 16, and the argument that the Court improperly instructed the jury based on David Johnson. The Court denied Petitioner's motions for a new trial.

         The Court sentenced Petitioner to 37 years in prison, which included 7 years on Counts 1 through 6 and 8 through 12 (to run concurrently) and a 30 year mandatory minimum for using a destructive device in relation to a crime of violence. At sentencing, the Court noted “if I had discretion to do so, I might have imposed a shorter sentence [on Counts 1 through 6 and 8 through 12] in view of the mandatory sentence.” [Tomkins, No. 07-cr-00227, Dkt. 450, at 44.]

         B. Direct Appeal and 28 U.S.C. § 2255 Petition

         On direct appeal, Petitioner argued that this Court erred by (1) barring Petitioner from arguing that the devices were meant as hoaxes, (2) admitting the x-ray that the government failed to turn over to defense before trial, and (3) refusing to suppress evidence from a search of his home and storage lockers.

         With respect to Petitioner's argument that the devices were meant as hoaxes, Petitioner argued that he should have been allowed to introduce evidence regarding how he intended the devices to function. Petitioner argued evidence of his subjective intent was necessary to rebut testimony from the government's witnesses regarding how his devices were designed and intended to function. The Seventh Circuit concluded that this Court properly applied the holding of United States v. David Johnson, 152 F.3d 618 (7th Cir. 1998), which held that subjective intent is irrelevant for determining whether something constitutes a “destructive device” when there is no legitimate social or commercial purpose. Although the Seventh Circuit indicated that the jury instructions should not have asked the jury to determine whether Petitioner “intended” to create a bomb, the court concluded that this error was harmless because there was ample evidence to prove beyond a reasonable doubt that the devices were destructive devices.

         With respect to Petitioner's argument that the district court erred in admitting the x-ray that the government failed to turn over before trial, Petitioner argued that the district court should have granted Petitioner a mistrial based on the government's failure to timely produce the x-ray in violation of Rule 16. The Seventh Circuit found that the district court's exclusion of the x-ray from the government's case-in-chief and clear warning that the x-ray may come in as rebuttal evidence was a reasonable remedy for the government's Rule 16 violation. The Seventh Circuit further concluded that any error would be harmless, given that the x-ray was duplicative of other evidence presented by the government. Specifically, “the government introduced photographic evidence showing that the relative sizes of the lead pellets and gunpowder would have made it highly unlikely that they did not mix together and contact the igniter. Further, explosive experts confirmed that [Petioner's] devices had all the elements of explosive bombs, and expert Winslow maintained that the devices could have exploded if mishandled during shipping.” United States v. Tomkins, 782 F.3d 338, 348 (7th Cir. 2016). The Seventh Circuit therefore was “not convinced that the x-ray made a critical difference in the jury's decision.” Id.

         Finally, with respect to Petitioner's argument regarding his motion to suppress, Petitioner argued that the warrants allowing for the seizure of materials from his home and storage lockers were not adequately constrained in time and scope. The Seventh Circuit disagreed, concluding that the warrants were reasonable. The Seventh Circuit further concluded that even if the warrants were deficient, this Court correctly ruled that a good-faith exception applied to preclude the application of the exclusionary rule. The Seventh Circuit therefore affirmed this Court's judgment in its entirety.

         Petitioner-through counsel-then filed a petition for writ of certiorari, which the Supreme Court denied on November 2, 2015. On July 7, 2016, Petitioner filed a timely petition to vacate, set aside, or correct under 28 U.S.C. § 2255 [1], raising a number of arguments challenging his conviction and sentence. Before the Court is Petitioner's § 2255 petition [1], and other miscellaneous motions filed in his § 2255 proceeding.

         II. Legal Standard

         A. Habeas Standard

         The Seventh Circuit has stressed that “relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Under § 2255, relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States, ' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). Thus, a § 2255 motion is not a substitute for a direct criminal appeal. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (stating that a § 2255 motion is “neither a recapitulation of nor a substitute for a direct appeal”).

         B. Ineffective Assistance of Trial Counsel Standard

         In order to prevail on an ineffective assistance of counsel claim, Petitioner must show that his counsel's performance was deficient and that he was prejudiced by the deficiencies in counsel's performances. Strickland v. Washington, 466 U.S. 688, 687 (1984). Both components of the test must be satisfied or the claim will be denied; “the lack of either is fatal.” Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996).

         Under the first prong of the Strickland test, Petitioner must establish that “counsel's representation fell below an objective standard of reasonableness” when measured against “prevailing professional norms.” Id. at 688; see also Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016). In evaluating counsel's performance, a court must consider “all of the circumstances of [the] case” in determining whether counsel's acts or omissions “were made outside the wide range of professionally competent assistance.” Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir. 2000) (citing United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995)). However, review of counsel's performance is “highly deferential, ” and a court's analysis must begin with a “strong presumption” that the defendant's attorney provided adequate representation to his client. United States v. Meyer, 234 F.3d 319, 324-25 (7th Cir. 2000). Petitioner must show that his counsel made “errors so serious that counsel was not functioning as ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Further, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91.

         If a court finds an attorney's representation to be unconstitutionally deficient, it must then proceed to the second prong of the Strickland test. Under the prejudice prong, a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009) (quoting Strickland, 466 U.S. at 690) (internal quotation marks omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see also Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002). “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Instead, “[c]ounsel's errors must have been ‘so serious as to deprive the defendant of a fair trial.'” Carter v. Butts, 760 F.3d 631, 635 (7th Cir. 2014) (quoting Strickland, 466 U.S. at 693). “This does not require a showing that counsel's actions ‘more likely than not altered the outcome, ' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (citations omitted).

         B. Ineffective Assistance of Appellate Counsel Standard

         In order to establish a claim of ineffective assistance of appellate counsel, a movant “must show both deficient performance and prejudice.” Rogers v. United States, 596 Fed.Appx. 490, 493 (7th Cir. 2014) (citing Strickland, 466 U.S. at 687). Appellate counsel's performance is “measured against that of an objectively reasonable attorney.” Brown v. Finnegan, 598 F.3d 705, 709 (7th Cir. 2010). Performance is deficient if counsel fails to argue an issue that is “obviously and clearly stronger” than the issues actually raised on appeal. Walker v. Griffin, 835 F.3d 705, 709 (7th Cir. 2016). “Prejudice exists if ‘there is a reasonable probability that the issue his appellate attorney failed to raise would have altered the outcome of the appeal, had it been raised.'” Johnson v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010) (quoting Brown, 598 F.3d at 425).

         III. Analysis

         A. SECTION 2255 AFFIDAVIT

         The Government argues that this Court should deny Petitioner's § 2255 petition because he did not sign his motion under penalty of perjury or provide a separate affidavit in support of his petition. But Petitioner adequately verified the factual assertions in his petition. Petitioner's motion begins with the following statement:

As I have drafted this petition myself, I hereby certify under the penalty of perjury pursuant to 28 U.S.C. § 1976 that all facts, proceedings and arguments presented herein are true and correct to the best of my knowledge.

[1, at 3.] The motion was also signed by Petitioner. Id. at 51. This is sufficient to satisfy Petitioner's verification requirement. Ronald Johnson v. United States, 2017 WL 3379753, at *1 (7th Cir. Jan. 20, 2017) (“Johnson signed his motion under penalty of perjury, so it is considered an affidavit.” (citing Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010))); Paters v. United States, 159 F.3d 1043, 1052 (7th Cir. 1998) (“[W]hen a petition contains language to the effect of * * * ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct, ' such petition, and the declaration(s) submitted along with it, are tantamount to affidavits.” (footnote omitted)).


         i. The “elements clause” is not unconstitutionally vague.

         Petitioner argues that his conviction under 18 U.S.C. § 924(c)(1)(A) of the Armed Career Criminal Act (“ACCA”) for possession of a firearm in relation to a crime of violence must be overturned based on the Supreme Court's decision in Samuel Johnson v. United States, which held that a residual clause in the definition of “violent felony” in § 924(e) of the ACCA-which is similar to the residual clause in the definition of “crime of violence” in § 924(c)(1)(A) of the ACCA-was unconstitutionally vague. 135 S.Ct. 2551, 2557 (2015). In Samuel Johnson, the petitioner pled guilty to being a felon in possession of a firearm in violation of § 922(g), and the government requested an enhanced sentence under the ACCA. Id. at 2555. Under the ACCA, a person convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). The petitioner in Samuel Johnson challenged the residual clause in the ACCA's definition of “violent felony, ” 135 S.Ct. 2555, which included any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court held that “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges” thereby denying defendants sentenced pursuant to the residual clause their due process rights. Samuel Johnson, 135 S.Ct. at 2557. Because Samuel Johnson established a substantive constitutional rule, the Supreme Court later held that it applied retroactively on collateral attack of prior convictions. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Petitioner argues that the residual clause in the definition of “crime of violence” under § 924(c) is similarly vague and that his sentence pursuant to § 924(c) therefore should be reversed. Under 18 U.S.C § 924(c)(1)(A), a person who uses or carries a firearm “during and in relation to any crime of violence” can be prosecuted. Section 924(c)(3) defines “crime of violence” as any felony that either “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “elements clause”), or (B) “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offence” (the “residual clause”). 18 U.S.C. § 924(c)(3).

         The Government argues that neither the “elements clause” nor the “residual clause” are unconstitutionally vague. With respect to the “residual clause” of § 924(c)(3), the Seventh Circuit held that the Supreme Court's holding in Samuel Johnson compels the conclusion that the residual clause in § 924(c)(3)(B) is unconstitutionally vague. United States v. Cardena, 2016 WL 6819696, at *25 (7th Cir. Nov. 18, 2016). This Court is bound by that ruling.

         Although Petitioner argues that the “elements clause” also is unconstitutionally vague, the Seventh Circuit has rejected that argument. Clark v. United States, 680 Fed.Appx. 470, 473 (7th Cir. 2017) (holding that the “elements clause” of § 924(c)(3) survived Samuel Johnson and affirming denial of § 2255 petition where petitioner's crime was a “crime of violence” under the elements clause). Thus, under the elements clause, if § 876(b) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ” 18 ...

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