United States District Court, S.D. West Virginia, Charleston Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert, United States Magistrate Judge.
before the Court is Movant Timothy James Thorne's pro
se Motion to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody pursuant to 28 U.S.C. § 2255,
(ECF No. 69). This matter is assigned to the Honorable Thomas
E. Johnston, United States District Judge, and by Standing
Order has been referred to the undersigned United States
Magistrate Judge for the submission of proposed findings of
fact and recommendations for disposition
(“PF&R”) pursuant to 28 U.S.C. §
636(b)(1)(B). For the reasons that follow, the undersigned
respectfully RECOMMENDS that Movant's
Motion be denied and this matter be dismissed, with
prejudice, and removed from the docket of the Court. Given
that the undersigned conclusively FINDS that
Movant is not entitled to the relief requested, an
evidentiary hearing is not warranted. Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
Factual and Procedural Background
February 2013, Movant was the passenger in a car that was
pulled over for having a burned-out tail light after the car
was observed leaving a motel that was under surveillance for
suspected drug trafficking activity. (ECF No. 77-2 at 2). The
driver of the car agreed to allow officers to conduct a
vehicle search, whereupon a bag of marijuana and eight
bundles of cash, each totaling just under $1, 000 were found.
Movant admitted that these items belonged to him.
(Id.). Movant was patted down and $505 in cash and a
plastic motel key card were discovered in his pocket.
(Id. at 3). Authorities used the key card to enter
Movant's motel room where they observed brown lines of
powder and residue, which they suspected to be heroin, on the
top of the desk. (Id. at 4). They obtained a search
warrant and located bags of brown powder, pills, digital
scales, syringes, sandwich baggies, a loaded semi-automatic
pistol, and ammunition. (Id.).
was charged with possession with intent to deliver heroin in
violation of federal law. (ECF No. 77-1). Movant moved to
suppress the evidence obtained from the traffic stop and
search of the motel room. Acknowledging that the car had a
burned-out tail light, he abandoned his argument that the
traffic stop was pretextual. However, he argued that the
search of the car exceeded the original purpose of the
traffic stop to investigate the burned-out tail light. (ECF
No. 77-2 at 5). He contended that once the purpose of the
traffic stop was accomplished by verifying the driver's
license and registration and determining whether to issue a
warning or citation, any further investigation
unconstitutionally prolonged the stop. (Id.).
Further, he argued that because the search warrant was
obtained from evidence found during the illegally prolonged
stop, the evidence from the motel room should be suppressed.
(Id.). In analyzing Movant's argument, the Court
noted that within fewer than five minutes of the traffic
stop, an officer observed a baggie of marijuana in the car,
which justified additional investigation; furthermore, the
entire stop lasted only ten minutes from start to finish.
(Id. at 8-9). The Court found that the traffic stop
was not prolonged, much less unconstitutionally so, and
denied Movant's motion to suppress. (Id. at 9).
after the Court denied the motion to suppress, Movant signed
a plea agreement in which he agreed to plead guilty to the
one-count Indictment and waive his right to collaterally
attack his guilty plea, conviction, or sentence, except on
the basis of ineffective assistance of counsel. (ECF No. 77-3
at 1, 6). The Court held a Rule 11 hearing in which Movant
confirmed that he reviewed each paragraph of the plea
agreement and agreed with all of the terms and provisions
contained therein, including the stipulation of facts. (ECF
No. 77-8 at 5-6). The Court fully explained the waiver
provision of the plea agreement by which Movant agreed to
waive his right to collaterally attack his conviction or
sentence except on the basis of ineffective assistance of
counsel and Movant stated that he fully understood.
(Id. at 11; ECF No. 77-9 at 1-2). After accepting
Movant's guilty plea, the Court determined that Movant
was a career offender under the United States Sentencing
Guidelines (the “Guidelines”) and sentenced him
to 156 months of imprisonment, which was within the advisory
range of 151 to 188 months of imprisonment under the
Guidelines. (ECF No. 77-4).
filed a direct appeal of his sentence with the United States
Court of Appeals for the Fourth Circuit (“Fourth
Circuit”), arguing that he should have received a
downward variance from the Guidelines because his crimes were
motivated by his drug addiction. (ECF No. 77-6 at 2). The
Fourth Circuit noted that the District Court considered
Movant's drug addiction, but determined that his lengthy
criminal history warranted a within-Guidelines sentence.
(Id. at 3). The Fourth Circuit found that
Movant's sentence was substantively reasonable and
affirmed the judgment of conviction and sentence.
(Id.). Movant appealed to the Supreme Court of the
United States (“Supreme Court”), but the Supreme
Court denied his petition for a writ of certiorari on
February 23, 2015. (ECF No. 77-7). Movant then filed the
instant § 2255 motion for habeas relief in early
December 2015. (ECF No. 69, 70). Movant asserted the
following grounds in his motion:
1. The district court abused its discretion in imposing a
156-month sentence that was unreasonable and greater than
necessary to achieve the purpose of sentencing because it did
not account for Movant's decade-long addiction to
controlled substances, which drove his criminal conduct.
2. Movant's trial counsel was constitutionally
ineffective by (a) not advising Movant that he had the option
to appeal the denial of his motion to suppress to the court of
appeals and that entering into a plea agreement would forfeit
his ability to appeal the ruling and (b) allowing Movant to
be “slip-shucked” into agreeing to a plea deal
without knowing that the government would seek an enhanced
career offender sentence.
moved to supplement his § 2255 motion to include a claim
under Johnson v. United States, 135 S.Ct. 2551
(2015), in which the Supreme Court struck down as
unconstitutionally vague a portion of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B), known as the ACCA's “residual
clause.” (ECF No. 83). Movant asserted that because he
was sentenced as a career offender based upon a residual
clause in the Guidelines that was identical to the residual
clause that was found to be unconstitutionally vague in the
ACCA, he no longer qualified as a career offender and the
Court should re-sentence him. (ECF No. 84 at 1-2). Respondent
subsequently sought to withdraw the referral to the
undersigned and stay this matter pending resolution of the
case Beckles v. United States, 137 S.Ct. 886 (2017),
in which the Supreme Court was asked to examine the
constitutionality of the career offender residual clause in
the Guidelines given the Johnson decision striking
down the same clause in the ACCA. (ECF No. 87).
later filed what he referred to as a second supplemental
memorandum in support of his § 2255 motion. (ECF No.
92). Movant added new claims, including: (1) that the
“government committed fraud upon [and hid the truth
from] the court by using only the DEA Agents'
statements” at the motion to suppress hearing, despite
being “aware of the local Sheriff's statement,
which described the events in question in a completely
different manner, ” (2) that the government
“committed a Brady violation by failing to turn over
the exculpatory evidence” of the Sheriff's
statement; and (3) that the Court erred by not suppressing
the evidence. (Id.) Finally, Movant renewed his
contention that his conviction was obtained in violation of
his Fourth Amendment rights because the police used a routine
traffic stop as a pretext for conducting a warrantless search
of the automobile in which Movant was a passenger.
(Id. at 3).