United States District Court, S.D. Illinois
KENNETH V. THOMAS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
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.
And Procedural Background
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 The indictment was subsequently superseded to modify the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.
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
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. (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 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
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).
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).
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).
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).
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
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.”).
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 ...