Thorne v. United States

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert, United States Magistrate Judge.

         Pending 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).

         I. Factual and Procedural Background

         In 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.).

         Movant 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).

         Days 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).

         Movant 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^[1] 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.

(Id.).

         Movant 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).

         Movant 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).

         II. Discussion

         A. Movant's ...