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Thomas v. United States

United States District Court, S.D. Illinois

June 14, 2018

KENNETH V. THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Kenneth Thomas's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the reasons set forth below, the motion is denied.

         Factual And Procedural Background

         On March 19, 2008, Kenneth Thomas was indicted along with seven other individuals on one count of conspiracy to distribute and possess with intent to distribute cocaine. United States v. Kenneth Thomas, SDIL No. 3:08-cr-30055, Doc. 1. The indictment was subsequently superseded to modify the conspiracy charge and to add a second charge. Specifically, the superseding indictment charged Thomas with conspiracy to distribute and possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846 (Count 1), and possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii) (Count 2). (Doc. 148).

         Following a two day jury trial, at which he represented himself, Thomas was convicted on both Counts 1 and 2. SDIL Case No. 3:08-cr-30055, Docs. 207-209. A presentence investigation report (“PSR”) was prepared prior to sentencing. According to the PSR, Thomas's relevant conduct was based on 228.7 grams of cocaine base and 39.5 kilograms of powder cocaine. Id. at Doc. 255. Those figures converted to 12, 474 kilograms of marijuana equivalents, which resulted in a base offense level of 34. Id. The PSR further indicated that a two-level enhancement for obstruction of justice was applicable because Thomas provided misleading information to the Court when he filed a letter that alleged the Government's agent planted evidence against him. Id. Thus, Thomas's total adjusted offense level was 36. Id. The PSR further concluded that Thomas had a criminal history category of IV. Id. Based on a total offense level of 36 and a criminal history category of IV, the guideline range for imprisonment was 262 to 327 months. Id.

         District Judge G. Patrick Murphy adopted the PSR without change and sentenced Thomas within the guideline range to a total term of imprisonment of 300 months. Id. at Docs. 275, 277, 278.[1] (Thomas's sentence was reduced in February 2015 to 240 months based on Amendment 782 to the United States Sentencing Guidelines. Id. at Doc. 383.) On the same day he was sentenced, Thomas filed a notice of appeal with the United States Court of Appeals for the Seventh Circuit. SDIL No. 3:08-cr-30055, Doc. 311; United States v. Thomas, 365 Fed.Appx. 22 (7th Cir. 2010). Thomas was appointed an attorney on appeal, however, his attorney filed an Anders[2] brief seeking to withdraw because he believed that the appeal was frivolous. SDIL No. 3:08-cr-30055, Doc. 311. Thomas opposed his attorney's motion, but the Seventh Circuit granted the motion and dismissed Thomas's appeal on February 12, 2010. Id. The judgment of conviction became final ninety days later, on May 13, 2010, because Thomas did not file a petition for a writ of certiorari to the United States Supreme Court.[3]

         Almost six years later, on March 23, 2016, Thomas filed his pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Court reads Thomas's motion as asserting the following arguments. First, Thomas argues that the jury was improperly instructed about the elements it had to find in order to convict him of the conspiracy charge (Count 1) and the distribution charge (Count 2). He claims that the jury should have been instructed that it had to find, beyond a reasonable doubt, that he knew the particular substance and quantity involved in his offenses. Thomas also claims that he received ineffective assistance from his appellate counsel with respect to this issue because he attempted to preserve the issue for direct appeal and asked his appellate attorney to present argument on the issue, but his attorney instead sought to withdraw from the appeal. Thomas further claims that the United States Supreme Court's 2015 decision in McFadden v. United States, 135 S.Ct. 2298 (2015), affirmatively establishes that his jury was improperly instructed because, according to Thomas, McFadden held that knowledge of the drug type and quantity are elements of his crimes (Doc. 1-1).

         Second, Thomas argues that the trial judge's findings regarding the amount of drugs attributable to him violated “his right to be sentenced in conformity with due process of law” (Doc. 1-1). Thomas appears to contend that any fact that increases the guideline sentencing range must be found by a jury (see Doc. 1-1). Thomas also alleges that the trial judge's findings were “vague and indeterminate” and became further convoluted when the Court of Appeals “conflated the various substances haphazardly” (Doc. 1-1). Thomas once again claims that he received ineffective assistance from his appellate counsel with respect to this issue because he told his appellate attorney about “the confusion regarding the nature of the substances and the quantities assigned to each, ” but his attorney did not pursue the issue and instead sought to withdraw from the appeal (Doc. 1-1).

         Discussion

         28 U.S.C. § 2255 requires a court to vacate, set aside, or correct the sentence of a prisoner in custody if it finds that “the sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. “[R]elief 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) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). It “is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citations omitted).

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes that prisoners have a one-year limitations period in which to file a habeas corpus petition. 28 U.S.C. § 2255(f). Ordinarily, the one-year limitations period is governed by subsection (f)(1) and runs from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Clay v. United States, 537 U.S. 522, 525 (2003). As previously mentioned, Thomas did not file his Section 2255 motion until almost six years after his conviction became final, and therefore it is untimely under subsection (f)(1). Thomas argues, however, that his deadline is governed by subsection (f)(3), not (f)(1) (Doc. 1). Under subsection (f)(3), the one-year limitations period begins to run on the date the Supreme Court “initially recognized” the right asserted by the prisoner, provided that right has been made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3); Dodd v. United States, 545 U.S. 353, 357 (2005) (“An applicant has one year from the date on which the right he asserts was initially recognized by this Court.”). Thomas claims that his one-year limitations period began to run on June 18, 2015, when the Supreme Court issued its decision in McFadden v. United States, 135 S.Ct. 2298 (2015).

         Neither Thomas nor the Government provided any argument or explanation regarding the new constitutional right supposedly recognized by McFadden or why that right should be made retroactively applicable to cases on collateral review (see Doc. 1-1; Doc. 5). See Welch v. United States, 136 S.Ct. 1257, 1264 (2016) (discussing the framework for determining whether a new rule applies to cases on collateral review). Consequently, the Court will assume only for the purpose of this Order that McFadden did in fact recognize a new constitutional right and that right was made retroactive to cases on collateral review, thus triggering a new one-year limitations period for Thomas's claim for collateral relief that is actually based on the McFadden decision.

         As an initial matter, the Court notes that the extended limitations period under subsection (f)(3) does not apply to Thomas's claim regarding the amount of drugs attributed to him at sentencing or the corresponding ineffective assistance claim because those claims are not based on McFadden or any other newly recognized right (see Doc. 1-1). Consequently, these claims are governed by the one-year limitation in subsection (f)(1). Because Thomas has not alleged any grounds to toll that deadline, the Court finds that these claims are untimely. Even if the opposite were true and the claims were timely filed, they have no merit. The Seventh Circuit has repeatedly held that drug quantity findings used to calculate the Guideline sentencing range are properly made by a judge at sentencing using the preponderance standard. See, e.g., United States v. Austin, 806 F.3d 425, 433 (7th Cir. 2015); United States v. Valdez, 739 F.3d 1052, 1054 (7th Cir. 2014); United States v. Garrett, 757 F.3d 560, 574-75 (7th Cir. 2014); United States v. Hernandez, 731 F.3d 666, 672 (7th Cir. 2013); United States v. Jones, 248 F.3d 671, 676-77 (7th Cir. 2001); Brannigan v. United States, 249 F.3d 584, 587 (7th Cir. 2001). The Seventh Circuit also held on Thomas's direct appeal that any objection to the sentencing judge's drug-quantity calculation was frivolous. SDIL No. 3:08-cr-30055, Doc. 311; United States v. Thomas, 365 Fed.Appx. 22, 28 (7th Cir. 2010). Consequently, Thomas has no basis for asserting his appellate attorney was ineffective for failing to raise an argument regarding the amount of drugs attributed to him at sentencing. See, e.g., Peterson v. Douma, 751 F.3d 524, 533 (7th Cir. 2014) (“The Sixth Amendment does not require counsel . . . to press meritless arguments before a court, and it is always good strategy to avoid wasting time or the court's attention with claims that are going nowhere.”) (internal citations and quotation marks omitted); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial or on appeal, does not constitute ineffective assistance of counsel.”).

         Now back to Thomas's first claim regarding improper jury instructions. Thomas contends this claim is based on McFadden, and he filed his Section 2255 motion within one year of the date the McFadden decision was issued by the Supreme Court. Therefore, this claim appears to be timely under subsection (f)(3), at least at first blush. A review of the McFadden decision makes it readily ...


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