United States District Court, N.D. Iowa, Eastern Division
R. READER, JUDGE UNITED STATES DISTRICT COURT.
RELEVANT BACKGROUND AND PROCEDURAL HISTORY ..........
Procedural History ...................................
Relevant Facts Established at Trial .........................
LEGAL STANDARDS .....................................
Standards Applicable to Motion Pursuant to 28 U.S.C. §
2255 ...... 6
Standards Applicable to Constitutional Right to Counsel
Request for Evidentiary Hearing .........................
Movant's Arguments .................................
Ineffective Assistance of Trial Counsel Claims ............
Failure to object to government's use of a cooperating
witness' plea agreement .........................
Failure to object to Jury Instruction 23 .............
Failure to conduct an adequate background investigation
and obtain movant's Illinois incarceration records
Failure to recall government agents
Failure to effectively cross-examine Christopher Glover
Failure to object to “material matters”
Ineffective Assistance of Appellate Counsel Claims .........
Defaulted Claims ...............................
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).
RELEVANT BACKGROUND AND PROCEDURAL HISTORY
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. 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. At arraignment, movant was
represented by appointed counsel (“trial
counsel”) and entered pleas of not guilty (criminal
docket no. 76).
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
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
(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
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).
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).
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.
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). A sentencing hearing was held on March 25,
2013 and July 16, 2013 (criminal docket nos. 305, 319 &
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
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
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.).
Relevant Facts Established at Trial
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.
Standards Applicable to Motion Pursuant to 28 ...