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Thomas v. United States

United States District Court, N.D. Iowa, Eastern Division

August 16, 2017





         I. INTRODUCTION ......................................... 2


         A. Procedural History ................................... 2

         B. Relevant Facts Established at Trial ......................... 6

         III. LEGAL STANDARDS ..................................... 6

         A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 ...... 6

         B. Standards Applicable to Constitutional Right to Counsel .......... 10

         IV. ANALYSIS ........................................... 12

         A. Request for Evidentiary Hearing ......................... 12

         B. Movant's Arguments ................................. 13

         1. Ineffective Assistance of Trial Counsel Claims ............ 13

         a. Failure to object to government's use of a cooperating witness' plea agreement ......................... 14

         b. Failure to object to Jury Instruction 23 ............. 17

         c. Failure to conduct an adequate background investigation and obtain movant's Illinois incarceration records ........20

         d. Failure to recall government agents ...............22

         e. Failure to effectively cross-examine Christopher Glover .23

         f. Failure to object to “material matters” .............24

         2. Ineffective Assistance of Appellate Counsel Claims ......... 24

         3. Defaulted Claims ............................... 29

         V. CONCLUSION ......................................... 30


         This matter comes before the court on Dion Thomas' motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (“motion”), which he filed on January 13, 2016 (civil docket no. 1). On February 1, 2017, the court directed the government to brief the claims that movant asserted in the motion (civil docket no. 4). The court also directed counsel to file with the court an affidavit responding only to movant's specific allegations of ineffective assistance of counsel (id.). Trial counsel timely complied with the court's order by filing his affidavit on March 8, 2017 (civil docket no. 7). Appellate counsel filed his affidavit on March 19, 2017 (civil docket no. 8). The government filed its responsive brief on April 4, 2017 (civil docket no. 9). Movant filed his reply on May 15, 2017 (civil docket no. 13). On May 19, 2017, movant filed a motion to amend the claim concerning ineffective assistance of appellate counsel (“amended motion”) (civil docket no. 15).[1]


         A. Procedural History

         On December 8, 2011, a grand jury charged movant and five others in a seven count indictment (criminal docket no. 7). Movant was charged in two counts. Movant's charges by count were: count 1, conspiracy to distribute and possess with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin after having been previously convicted of a felony drug crime, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 and 851; and count 3, distribution of .54 grams of a mixture or substance containing a detectable amount of heroin after having been previously convicted of a felony drug crime, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851.[2] A forfeiture claim was also made for property or proceeds including proceeds of $250, 000 (criminal docket no. 7). On May 18, 2012, the government filed an Information (criminal docket no. 91) pursuant to 21 U.S.C. § 851, notifying the court and movant of the government's intent to seek enhanced penalties against movant based on his August 25, 2009 conviction for possession with intent to deliver a controlled substance in the Circuit Court of Cook County, Illinois.[3] At arraignment, movant was represented by appointed counsel (“trial counsel”) and entered pleas of not guilty (criminal docket no. 76).

         On June 27, 2012, movant filed a pro se motion for a new attorney (criminal docket no. 109). Movant argued that trial counsel had “not filed anything on [his] behalf” (id. at 1). Movant argued that he was “constantly asking [trial counsel] to file motions on [his] behalf, ” but trial counsel failed to do so, and that trial counsel did “not have [his] best interest” (id.). At a hearing, movant reiterated his concerns and noted that trial counsel was not defending him but had merely advised him to accept a guilty plea (criminal docket no. 332 at 2-4). Movant also complained that trial counsel did not show him any statements from witnesses that implicated him (id. at 3). When asked what motion he wished trial counsel to file, movant responded:

I mean, I'm not a lawyer, but I'm pretty sure he can find me-if I'm charged with something, I'm pretty sure there is a motion that can be filed as far as this case is. I feel like I'm just sitting here and I'm at the same stage I was at, and all he wants me to do is just take a plea agreement.

(id. at 4). Trial counsel then informed the court that he and movant

have discussed the evidence many times. I've even reserved a room at the jail where he could-part of the evidence in the case-this was a case where there was wiretaps. And so I reserved a room where he could actually listen to the recorded conversations, which he's done. And then I've discussed the other evidence in the case again.
So I haven't provided him copies of anything because, according to the discovery, standard discovery order, I can't. But I did, and I think he's got it with him here today, I sent him a several page letter summarizing what the evidence was and what my recommendation would be as far as whether to accept a plea agreement or go to trial, and the pitfalls he might run into if he did go to trial. So he knows as much about the case as I do.

(id. at 7-8). The court denied movant's motion for new counsel (criminal docket no. 113).

         On August 6, 2012, trial counsel filed a motion in limine to exclude, among other things, any “written plea agreements of government witnesses” as hearsay and as inadmissible under Federal Rule of Evidence 403 (criminal docket no. 146 at 2-3). Trial counsel argued that “what the witness and the government have agreed can be brought out in testimony without the baggage of potentially prejudicial factual stipulations or other agreements to which [movant] is not a party” (id. at 3). The court granted the motion in limine to exclude this evidence, noting that the government did “not intend to offer cooperating witnesses' written plea agreements into evidence” (criminal docket no. 165 at 4).

         The government also filed a motion in limine asking the court to enter a pretrial order admitting into evidence testimony regarding movant's crack cocaine distribution (criminal docket no. 147). On August 9, 2012, trial counsel filed a supplemental motion in limine to exclude the same (criminal docket no. 149). The court granted the government's motion and denied movant's supplemenal motion, finding that evidence of movant's crack cocaine distribution was admissible pursuant to Rule 404(b) to show movant's motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or lack of accident (criminal docket no. 165).

         Movant proceeded to trial on August 27, 2012 (criminal docket no. 168). At the close of all of the evidence, trial counsel moved for a judgment of acquittal on counts 1 and 3, which the court denied (criminal docket no. 173). On August 29, 2012, the jury returned verdicts of guilty on both counts (criminal docket no. 180). On September 12, 2012, trial counsel filed a motion for a new trial (criminal docket no. 186), which the court denied on November 8, 2012 (criminal docket no. 216). On December 21, 2012, movant again filed a pro se motion for new counsel based on the same grounds as in his earlier motion (criminal docket no. 245). The court again denied the motion (criminal docket no. 255). A presentence report was finalized on January 4, 2013 (criminal docket no. 258). With the help of his mother, movant retained private counsel on January 25, 2013 (criminal docket nos. 271 & 272).[4] A sentencing hearing was held on March 25, 2013 and July 16, 2013 (criminal docket nos. 305, 319 & 320).

         The court granted movant's motion for a downward departure (criminal docket no. 305) and sentenced him to 240 months' imprisonment on each count, with the sentences to be served concurrently (criminal docket nos. 306 & 320). In addition, the court imposed a total of eight years of supervised release and a total of $200 in special assessments (id.).

         Movant appealed his convictions and sentences. On direct appeal, he unsuccessfully argued that: (1) the court violated Federal Rule of Evidence 404(b) by allowing testimony regarding movant's alleged crack distribution and alleged money laundering; (2) the court erred by denying movant's motions for new counsel; (3) the court erred by considering movant's uncharged, crack-distribution conduct in calculating his advisory sentencing guidelines offense level; and (4) the court erred by including movant's state court conviction for cocaine possession in calculating his criminal history score. See Thomas, 760 F.3d at 882. The United States Supreme Court denied certiorari on January 12, 2015. Thomas v. United States, 135 S.Ct. 1013 (2015).

         In the motion, the court understands movant to assert a plethora of ineffective assistance of trial and appellate counsel claims (civil docket nos. 1 & 1-1). Movant also argues that: (1) prosecutorial misconduct occurred during trial, that is, the government used a cooperating witness' plea agreement in violation of the court's in limine order, and (2) the court misapplied the law (id.).

         B. Relevant Facts Established at Trial

         The court agrees with the recitation of relevant facts established at trial as stated in the government's brief (civil docket no. 9) and the summary of the trial evidence as stated in the Eighth Circuit Court of Appeals' appellate opinion, see Thomas, 760 F.3d at 882-83.


         A. Standards Applicable to Motion Pursuant to 28 ...

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