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Thomas v. United States

United States District Court, D. South Carolina, Florence Division

February 1, 2019

Henry Quaysean Thomas, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner Henry Quaysean Thomas's (“Petitioner”) pro se [ECF No. 61] motion to vacate, set aside, or correct sentence (“motion to vacate”) pursuant to 28 U.S.C. § 2255. Also pending is the government's [ECF No. 75] motion to dismiss Petitioner's motion to vacate. For the reasons stated below, the Court grants the government's motion to dismiss, dismisses Petitioner's motion to vacate, and dismisses this case with prejudice.

         Procedural History and Factual Background

         Petitioner was indicted on September 27, 2016, in a four count indictment for drug and firearms offenses. [ECF No. 2]. Count one alleged possession with intent to distribute a quantity of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(2)(C). Count two alleged possession with intent to distribute a quantity of crack cocaine and a quantity of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and (b)(1)(D). Count three alleged felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e) and count four alleged that Petitioner used and carried a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

         On February 27, 2017, Petitioner entered a guilty plea[1] to only the drug offense alleged in count two. [ECF No. 39]. The other counts were not yet dismissed. A presentence investigation report ("PSR") dated April 7, 2017, and revised on April 21, 2017, was prepared by the U.S. Probation Office. The PSR found that Petitioner's advisory guideline range as to count two was 30 to 37 months, based on a total offense level of 15 and criminal history category of IV. The PSR also suggested an upward departure based on the numerous offenses which were not counted in Petitioner's criminal history. [PSR, ECF No. 54 at ¶ 108]. However, the PSR did not determine him to be a career offender.

         On April 18, 2017, Petitioner signed a post-plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), wherein Petitioner and the government agreed to a sentencing guideline range of 84-90 months. [ECF No. 47]. The sentencing range was based on the upward departure suggested by the PSR.

         Trial counsel's strategy was based on Petitioner's significant criminal history and the concern that Petitioner may be a career offender. [Affidavit of William F. Nettles, IV, ECF No. 70]. Since one of Petitioner's charges was a § 924(c) violation, had Petitioner been a career offender with a § 924(c) conviction, his guideline range would have been 360 months to Life had Petitioner gone to trial and lost. Id. A guilty plea with a full award of acceptance of responsibility would have produced a guideline range of 262 to 322 months in prison. Id. Thus, trial counsel opted to plead Petitioner to the drug offense alone to determine if Petitioner was a career offender. Id. If Petitioner was not a career offender, Petitioner would then plead guilty to the § 924(c) offense or be sentenced to an extra term of months to account for the penalty for that offense. Id. Once it was determined that Petitioner was not a career offender, Petitioner executed the post-plea agreement to reflect the additional months for the § 924(c) offense. Id. Additionally, the other counts were dismissed including the § 924(c) count and Petitioner was simply given an upward departure on the drug count to account for the § 924(c) firearm charge. Trial counsel states that Petitioner was aware of the plan during the entire course of his representation and the plan was discussed with Petitioner both before and after the guilty plea. Id.

         On June 29, 2017, Petitioner was sentenced to 84 months in prison. [Judgment, ECF No. 55]. Before imposing sentencing, the Court conducted a colloquy with Petitioner regarding the Rule 11(c)(1)(C) post-plea agreement, which stipulated a sentencing range of 84-90 months and included an appeal waiver. During the colloquy, Petitioner indicated that he entered into the Rule 11(c)(1)(C) post-plea agreement freely and voluntarily and that he was freely and voluntarily waiving his right to appeal.

         At sentencing, Petitioner also executed a document waiving his right to appeal. [ECF No. 53]. The appeal waiver indicated that Petitioner was notified by the court of his right to appeal, that he discussed his right to appeal with his attorney, and that he did not want to appeal. Id.

         Petitioner filed the instant pro se motion to vacate pursuant to 28 U.S.C. § 2255 on April 29, 2018. [ECF No. 61]. The government filed a response to Petitioner's motion to vacate and a motion to dismiss on June 12, 2018. [ECF No. 75]. Petitioner did not file a response to the government's motion to dismiss.

         Applicable Law

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Nonconstitutional claims may be brought pursuant to § 2255, but will not provide a basis for collateral attack unless the error involves a “fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240 (1979); United States v. Morrow, 914 F.2d 608, 613 (4th Cir. 1990).

         A petitioner cannot ordinarily bring a collateral attack on the basis of issues litigated on direct appeal. United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating petitioner “cannot ‘circumvent a proper ruling . . . on direct appeal by re-raising the same challenge in a § 2255 motion'”); United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169 (1976). An exception occurs where there has been an intervening change in the law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2302 (1974). Additionally, where a defendant could have raised a claim on direct appeal but fails to do so, the claim may only be raised in a federal habeas proceeding if the defendant can show both cause for and actual prejudice from the default, see Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or that she is actually innocent, see Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

         In deciding a motion to vacate, the court may summarily dismiss the motion “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rules Governing Section 2255 Proceedings 4(b); see 28 U.S.C. § 2255(b) (a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief). An evidentiary hearing “is required when a movant presents a colorable [ ] claim showing disputed material facts and a credibility determination is necessary to resolve the issue.” United States v. Coon, 205 Fed.Appx. 972, 973 (4th Cir. 2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not required unless the claim shows “disputed facts involving inconsistencies beyond the record.” United States v. Robinson, 238 Fed.Appx. 954, 955 (4th Cir. 2007). Conclusory allegations contained within affidavits do not require a hearing. Strong v. Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007). ‚ÄúThus, no hearing is required if the petitioner's ...


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