United States District Court, S.D. West Virginia, Huntington
PROPOSED FINDINGS AND RECOMMENDATION
L. TINSLEY UNITED STATES MAGISTRATE JUDGE
before the Court is Movant's Motion to Vacate, Set Aside,
or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF
No. 83), his Letter-Form Motion to Amend/Correct Section 2255
Motion (ECF No. 86), his Motion for Relief under the
Johnson/Welch Cases as to the Armed Career Criminal Act (ECF
No. 90), his Supplement to Motion to Vacate Conviction §
2255 (ECF No. 92), and his Motion for Leave to Amend (ECF No.
105). This matter is assigned to the Honorable Robert C.
Chambers, United States District Judge, and it is referred to
the undersigned United States Magistrate Judge for submission
of proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B).
February 25, 2014, Movant Demetrius Desean Thomas
(hereinafter “Defendant”), was named in an
indictment charging various controlled substance offenses.
(ECF No. 16). Throughout his district court proceedings,
Defendant was represented by court-appointed counsel,
Sebastian M. Joy.
5, 2014, Defendant executed a written plea agreement in which
he agreed to plead guilty to one count of distribution of
heroin, in violation of 21 U.S.C. § 841(a)(1), as stated
in Count Seven of the indictment. (ECF No. 43). As noted by
Respondent, the written plea agreement contained an express
waiver by Defendant of his right to appellate review of his
conviction and his sentence, so long as the sentence did not
exceed the maximum statutory penalty prescribed by law, and a
waiver of post-conviction collateral attack, except for any
claim based upon ineffective assistance of counsel.
(Id. at 4-5, ¶ 10). The plea agreement also
included the following acknowledgement:
I hereby acknowledge by my initials at the bottom of each of
the foregoing pages and by my signature on the last page of
this six-page agreement that I have read and carefully
discussed every part of it with my attorney, and that I
understand the terms of this agreement, and that I
voluntarily agree to those terms and conditions set forth in
the agreement. I further acknowledge that my attorney has
advised me of my rights, possible defenses, the Sentencing
Guideline provisions, and the consequences of entering into
this agreement, that no promises or inducements have been
made to me other than those in this agreement, and that no
one has threatened me or forced me in any way to enter into
this agreement. Finally, I am satisfied with the
representation of my attorney in this matter.
(Id. at 7). The plea agreement also contained a
stipulation of facts in which Defendant acknowledged that he
knowingly and intentionally sold quantities of heroin, which
was sufficient to support the charge in the indictment.
(Id. at 3-4 (¶ 9) and 8, Ex. A). Defendant
signed and initialed each page of the plea agreement and
initialed each page of the stipulation of facts as well.
(Id. at 1-9).
5, 2014, Defendant pled guilty, in accordance with the
written plea agreement, to the charge in the indictment. (ECF
Nos. 39-43, 46). The district court conducted a thorough plea
colloquy in accordance with Rule 11 of the Federal Rules of
Criminal Procedure, including receiving Defendant's own
factual basis for his guilty plea, the government's
proffer of evidence to support the essential elements of the
crime set forth in the indictment (which included the
testimony of one of the investigating officers),
Defendant's acknowledgement of the rights he was waiving
and his satisfaction with his attorney's representation.
(ECF No. 66, Plea Hrg. Tr., passim).
district court specifically discussed with Defendant the
appellate and collateral attack waivers. (Id. at
32-33). Defendant acknowledged that he understood the effects
of the waiver provision and the effect of his guilty plea.
(Id.) Defendant also acknowledged that the
stipulation of facts could be used against him to support the
guilty plea and at sentencing, and even at a trial.
(Id. at 32).
August 4, 2014, Defendant appeared for sentencing. The
district court determined that Defendant's total offense
level under the United States Sentencing Guidelines
(“USSG”) was 29, with a criminal history category
of VI, yielding a guideline range of 151-188 months of
imprisonment. This calculation included an enhancement under
USSG § 4B1.1 after the district court found that
Defendant qualified as a career offender based upon two prior
controlled substance offenses. (ECF No. 68 at 4-5).
the district court varied downward from the guideline range
and sentenced Defendant to 120 months of imprisonment,
followed by a three-year term of supervised release.
(Id. at 17-18). A Judgment to that effect was
entered on May 5, 2014. (ECF No. 53).
appealed to the United States Court of Appeals for the Fourth
Circuit. However, his counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating
that he believed there were no meritorious claims for relief.
Defendant filed a pro se supplemental brief in which he
asserted that his guilty plea was not knowing and voluntary,
that his sentence was not reasonable, that he was improperly
designated as a career offender, and that his counsel
provided ineffective assistance of counsel.
February 24, 2015, the Fourth Circuit affirmed
Defendant's conviction and sentence. United States v.
Thomas, No. 14-4656, (4th Cir. Feb. 24, 2015). The Court
specifically found that Defendant's guilty plea satisfied
Rule 11 of the Federal Rules of Criminal Procedure and was
knowing, voluntary, and supported by a sufficient factual
basis. The Court further found that Defendant's sentence
was reasonable. However, the Court declined to address
Defendant's claims of ineffective assistance of counsel,
finding that such claims were better suited for review in a
section 2255 motion.
November 25, 2015, the district court denied Defendant's
Motion to Reduce Sentence under 18 U.S.C. § 3582(c)(2)
and Amendment 782 to the United States Sentencing Guidelines
(which retroactively lowered the base offense levels for drug
offenses as of November 1, 2014). (ECF No. 79).
March 3, 2016, Defendant, acting pro se, filed the
instant section 2255 motion (ECF No. 83), asserting the
following grounds for relief:
Ground One: Ineffective assistance of
counsel during plea negotiation/hearing Movant first signed a
plea with a statue [sic; statutory sentencing range] ¶
0-30 years on April 28, 2014 which was later changed (May 5,
2014) to a statue [sic; statutory sentencing range] ¶
0-20 years. Movant was told this change came about because a
deal had been reached with the prosecutor and career offender
enhancement would not be sought after. Also counsel gave
Movant the plea agreement moments before the plea hearing,
without sufficient time to understand and digest plea
agreement. Movant can't knowingly and intelligently enter
into it. Also if Movant signed plea under false information
from counsel, Movant was coerced and did not knowingly and
willingly enter into plea agreement.
Ground Two: Ineffective assistance of
counsel during sentence During sentencing counsel failed to
argue Movant's addiction to heroin so that Sentencing
Judge could factor that into his Judgment, a fact that
counsel later alleged he argued during sentencing in his
“Anders Brief.” Also counsel failed to argue
during sentencing that the government failed to file an
“851 information” against Movant which is
required by law when career offender is applied.
(ECF No. 82 at 4-5).
March 7, 2016, Defendant filed a Letter-Form Motion to Change
or Amend Section 2255 Motion. (ECF No. 86). However, the
motion did not include any amendments or additional grounds
for relief. Rather, the motion simply stated that Defendant
was being housed in the Special Housing Unit
(“SHU”) at FCI Gilmer and did not have access to
the law library and materials to file additional claims.
Thus, he sought leave to amend his motion once he was
returned to the general population.
16, 2016, Defendant filed a Motion for Relief under the
Johnson/Welch Cases as to the Armed Career Criminal Act and
Motion to Stay § 2255 Proceeding. (ECF No. 90). On May
17, 2016, the presiding District Judge granted
Defendant's Motion to Stay and directed that