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Thomas v. United States

United States District Court, S.D. West Virginia, Huntington

January 14, 2019

DEMETRIUS DESEAN THOMAS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          DWANE L. TINSLEY UNITED STATES MAGISTRATE JUDGE

         Pending 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).

         PROCEDURAL HISTORY

         On 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.

         On May 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).

         On May 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), [1]and Defendant's acknowledgement of the rights he was waiving and his satisfaction with his attorney's representation. (ECF No. 66, Plea Hrg. Tr., passim).

         The 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).

         On 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).

         However, 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).

         Defendant 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.

         On 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.

         On 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).

         On 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).

         On 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.

         On May 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 ...


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