Thompson v. United States of America (INMATE3)

Filing 45

REPORT AND RECOMMENDATIONS re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Marvin Thompson; it is the Recommendation of the Mag Judge that the 28 USC 2255 motion filed by Thompson be denied, as the claims therein entitle him to no relief; Objections to R&R due by 1/29/2009. Signed by Honorable Terry F. Moorer on 1/16/09. (vma, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION M A R V IN THOMPSON, P e titio n e r, v. U N IT E D STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 3:07cv915-ID (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P e titio n e r Marvin Thompson ("Thompson"), a federal inmate proceeding pro se, b rin g s this action as a motion to vacate, set aside or correct his sentence pursuant to 28 U .S .C . § 2255. Thompson challenges the revocation of his supervised release and makes a lleg a tio n s of ineffective assistance of counsel. I. PROCEDURAL BACKGROUND

In January 1993, after pleading guilty to conspiracy to distribute cocaine base, T h o m p s o n was sentenced to 137 months in prison, to be followed by five years of supervised re le a se . Thompson was released from prison in 2001, and began serving his term of s u p e rv is e d release. In November 2005, the United States initiated proceedings for revocation of T h o m p so n 's supervised release after he was arrested for violations of state law. On April 4 , 2006, following a revocation hearing, the district court revoked Thompson's supervised

r e l e a s e and imposed a 46-month term of custody. Thompson appealed to the Eleventh C irc u it, and on December 13, 2006, the appellate court affirmed the district court's judgment. S e e United States v. Thompson, 210 Fed.Appx. 857 (11 th Cir. Dec. 13, 2006) (unpublished). O n October 8, 2007,1 Thompson filed this motion under 28 U.S.C. § 2255 challenging th e revocation of his supervised release. Thompson asserts ineffective assistance of counsel b a se d on his counsel's: (1) failure to request a handwriting expert; (2) failure to present te st im o n y from various witnesses at the revocation hearing; (3) failure to pursue re c o n stru c tio n of a videotape recording of his arrest; (4) failure to object to the continuance o f the revocation hearing; (5) failure to move to suppress the government's evidence; and (6) f a ilu re to move for discovery regarding the government's evidence. In addition, Thompson c laim s that newly discovered evidence establishes that the evidence presented against him at the revocation hearing was fabricated. Finally, Thompson claims that the district court e rre d by failing to allow his counsel an opportunity to object to its findings of fact, c o n c lu s io n s of law, and the manner in which its sentence was imposed. T h e United States filed an answer in which it asserts that Thompson's claims are w ith o u t merit and entitle him to no relief. Thompson was afforded an opportunity to respond to the government's answer, and has done so. After careful consideration of the § 2255

Although the § 2255 motion was date-stamped "received" in this court on October 11, 2007, it was signed by Thompson on October 8, 2007. Under the "mailbox rule," a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing, presumptively the date it is signed by the petitioner. Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999). Under the circumstances, this court deems October 8, 2007, to be the filing date of Thompson's motion. 2

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m o tio n , the parties' submissions, and the record in this case, the court concludes that an e v id e n tia ry hearing is not required and that, pursuant to Rule 8(a), Rules Governing Section 2 2 5 5 Proceedings in the United States District Courts, the motion should be denied. II. A. DISCUSSION

I n e ffe c tiv e Assistance of Counsel I n order to succeed on a claim of ineffective assistance of counsel, a petitioner must

m e e t the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under th a t test, the petitioner must first show that his counsel's performance was deficient because it "fell below an objective standard of reasonableness." Id. at 688. Second, he must show th a t counsel's deficient performance actually prejudiced his defense. Id. "There is a strong p re su m p tio n that counsel's performance falls within the `wide range of professional a ss is ta n c e,' [and] the defendant bears the burden of proving counsel's representation was u n re a so n a b le under prevailing professional norms and that the challenged actions was not s o u n d strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U .S . at 689). The court must be mindful to "address not what is prudent or [even]

a p p ro p ria te , but only what is constitutionally compelled." Burger v. Kemp, 483 U.S. 776, 7 9 4 (1987). 1. F a i lu r e to Request Handwriting Expert

T h o m p so n contends that his counsel rendered ineffective assistance by failing to re q u e st the assistance of a handwriting expert to establish it was not his signature on a ticket

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h e allegedly received at the time of his arrest. (Doc. No. 1 at p. 17 - "Addendum # 1.a.") A n issue at the revocation hearing was the question of whether Lt. Steven Woods of th e Lanett, Alabama, Police Department issued Thompson a traffic ticket for illegally parking h is car on the date he was arrested, November 17, 2005. Lt. Woods testified that he initially n o tic e d and approached Thompson's car because it was illegally parked. When he neared th e car, he said, he observed Thompson and another individual, Ernest Lyman, engaged in w h a t he believed was a drug deal next to the car. Lyman was arrested when a pat-down re v e ale d a crack pipe in his possession. When Lt. Woods instructed Thompson's girlfriend, S ylv ia Banks, a passenger in Thompson's car, to exit the vehicle, Thompson repeatedly told h e r to remain in the car and stepped toward Lt. Woods. Thompson was then placed under a rre st for obstruction of a governmental operation. An inventory search of Thompson's car re v e ale d a small "fanny pack" in the driver's seat; discovered within the pack was crack c o c a in e and a nine-millimeter pistol. A t the revocation hearing, Thompson's counsel sought to impeach Lt. Woods's te stim o n y by attempting to show that Lt. Woods had engaged in a pattern of pretextual and h a ra ss in g traffic stops of Thompson and by suggesting that his reason for approaching T h o m p s o n on November 17, 2005, was not, as Lt. Woods testified, that Thompson was ille g a lly parked. To this effect, counsel suggested that Lt. Woods had not issued a traffic tic k e t to Thompson at the time of his arrest and that Thompson's signature may have been

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f o rg e d on a ticket supposedly issued to him on that date.2 During his cross-examination, Lt. W o o d s acknowledged that Thompson's ticket number from the November 17 incident was o u t of sequential order from other tickets he had issued before and after the incident, and he h a d pulled Thompson over for traffic violations twice following the incident. In an affidavit filed with this court, Thompson's counsel states that he made a tactical d e c isio n that it was unnecessary to employ a handwriting expert to question the authenticity o f Thompson's signature on the November 17 ticket, because he believed his crosse x a m in a tio n of Lt. Woods sufficiently "impeached Lt. Woods's testimony concerning w h e th e r [Thompson] signed a ticket that he allegedly received at the time of his arrest." (D o c. No. 3 at p. 2 - "Affidavit of Donnie W. Bethel.") T h is court cannot conclude that counsel's failure to obtain the assistance of a h a n d w r itin g expert prejudiced Thompson in the least. Thompson asks this court to assume th a t had the handwriting analysis been done it would have proven to be exculpatory, but he h a s offered nothing but his own protestations of innocence to support this allegation. Thus, T h o m p so n fails to demonstrate a "reasonable probability" that, but for counsel's allegedly d e f ic ie n t performance, "the result of the proceeding would have been different." Strickland, 4 6 6 U.S. at 694. Moreover, it appears from the record that counsel took an appropriate a p p ro a c h to impeaching Lt. Woods by eliciting evidence suggesting that he was biased

On direct examination, Thompson testified that Lt. Woods did not issue him a ticket on the date of his arrest and claimed that it was not his signature on a ticket presented into evidence by the government. 5

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a g a in s t Thompson and had made several traffic stops of Thompson that were, in the d e f en s e 's theory, pretextual and harassing. Again, "there is a strong presumption that c o u n s e l's conduct falls within the wide range of reasonable professional assistance." S tr ic k la n d , 466 U.S. at 689. "Tactical decisions of counsel are entitled to broad deference." R o u t ly v. Singletary, 33 F.3d 1279, 1287 (11 th Cir. 1994). Accordingly, Thompson is not e n titled to any relief based on this allegation of ineffective assistance of counsel. 2. F a ilu r e to Present Testimony from Various Witnesses a. T e stim o n y from Sylvia Banks

T h o m p so n contends that his counsel rendered ineffective assistance by failing to p re se n t testimony from Sylvia Banks, who was Thompson's girlfriend and a passenger in his ca r at the time of his November 17 arrest. (Doc. No. 1 at p. 17 - "Addendum # 1.b.") A cc o rdin g to Thompson, Banks would have testified that there was no bag on the driver's s e a t of his car and that Thompson "never advanced on Lt. Woods when [Lt. Woods] was s p e a k in g to [Banks], which formed the pretext for the Obstruction of Government Operation c h a rg e ." 3 (Id.) A d d r e ss in g this claim in his affidavit filed with the court, Thompson's counsel avers: [ M ]y investigator and I interviewed [Banks] at length concerning her k n o w le d g e of this case. First, contrary to Petitioner's assertion, Ms. Banks c o n f irm e d to us that there was indeed a black bag on Petitioner's car seat; th e re f o re , her testimony on this matter would've been very damaging to P e titio n e r's case. Further, my investigator and I both concluded beyond doubt

An affidavit from Sylvia Banks, with averments to this effect, is attached to Thompson's § 2255 motion. (Doc. No. 1, Attachment # 1 at pp. 1-5 - "Sworn Affidavit of Sylvia Banks.") 6

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th a t Petitioner had instructed Ms. Banks to lie on his behalf and claim o w n e r s h ip of the gun found in the bag. I chose not to call her as a witness b e c a u s e I am not in the habit of suborning perjury. (D o c. No. 3 at p. 2 - "Affidavit of Donnie W. Bethel.") " [ A ] claim of ineffective assistance cannot be grounded on the failure of trial counsel to produce false or misleading evidence." Card v. Dugger, 911 F.2d 1494, 1503 (11 th Cir. 1 9 9 0 ). A defendant has no Sixth Amendment right to a counsel willing to participate in p re s e n tin g perjured testimony. See Nix v. Whiteside, 475 U.S. 157, 173 (1986). "Although c o u n se l must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence o r otherwise violating the law." Id. at 166. Here, counsel's decision not to present what he h a d reason to believe would be perjured testimony from Banks did not amount to ineffective assistan ce under Strickland, and Thompson is not entitled to any relief based on this claim. b. T e stim o n y from Andreena Lynch

T h o m p s o n also asserts that his counsel was ineffective for failing to present testimony fro m Andreena Lynch, Sylvia Banks's daughter. (Doc. No. 1 at p. 17 - "Addendum # 1.b.") T h o m p so n maintains that Lynch "would have testified to several discrepancies in Lt. W o o d s 's account of the incident that would have impacted his credibility." (Id.) A n affidavit from Andreena Lynch is attached to Thompson's § 2255 motion. (Doc. N o . 1, Attachment # 1 at pp. 6-7 - "Sworn Affidavit of Andreena Lynch.") In her affidavit, L yn c h recounts certain events she says she witnessed at the November 17 arrest scene,

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w h i c h , she states, took place near the residence she lives in with her mother, Sylvia Banks. H o w ev er, Thompson fails to point to specific averments in Lynch's affidavit that are m a ter ially contradictory to Lt. Woods's testimony or that would, if believed, be reasonably lik e ly to impact significantly upon Lt. Woods's credibility. A d d r e ss in g his failure to present testimony from Lynch, Thompson's counsel states: A s to Andreena Lynch, no one we interviewed during our investigation ever m e n t i o n e d that she had any personal knowledge of the circumstances s u rro u n d in g Petitioner's arrest, nor did Petitioner ever mention that Ms. Lynch p o s s e ss e d any such knowledge. The information that Ms. Lynch has attested to in her sworn affidavit was never brought to the attention of me or my in v e s tig a to r.. (D o c. No. 3 at p. 2 - "Affidavit of Donnie W. Bethel.") T h o m p s o n points to no facts reasonably available to counsel at the time of the re v o c a tio n hearing that might have suggested to counsel that testimony from Lynch would p ro v e beneficial to Thompson's defense or that Lynch would indeed have provided testimony h e lp f u l to Thompson. Thompson does not allege that he ever informed counsel prior to the re v o c atio n hearing that Lynch could testify to any of the matters asserted by her in her af fid av it. Nor is there any indication that Lynch herself, at the time of Thompson's re v o c atio n hearing, ever evidenced a willingness to provide exculpatory testimony on T h o m p so n ' s behalf. Thus, Thompson has failed to demonstrate that his counsel's

p e rf o rm a n c e in this regard was professionally unreasonable. Strickland, 466 U.S. at 688. F u r t h e rm o re , Thompson fails to meet his burden of showing that the testimony of L yn c h ­ whatever its value in impeaching Lt. Woods's credibility ­ was reasonably likely 8

to have changed the outcome of the proceeding.

Therefore, Thompson fails also to

d em o n strat e the necessary prejudice required under Strickland. Consequently, he is not e n title d to any relief based on this claim. See Strickland, 466 U.S. at 687-89. c. T e stim o n y from other witnesses

T h o m p s o n claims that his counsel was also ineffective for failing to present testimony fro m various other witnesses who, he says, were "essential to impeachment" of Lt. Woods's cre d ibility. (Doc. No. 1 at pp. 20-22 - "Addendum # 4.") Among the other witnesses T h o m p s o n argues his counsel should have called to testify at the revocation hearing are: (1) B a rb a ra Thompson, who is Thompson's sister; (2) Tony Malone, a Lanett City Councilman a n d President of the Lanett chapter of the NAACP; (3) Officer Larry Clark and "Officer C o x ," two of the Lanett police officers who participated in Thompson's arrest on November 1 7 ; and (4) Jim Ingram, an attorney who represented Thompson at the preliminary hearing f o r the state criminal proceedings arising from the November 17 arrest. (Id.) T h o m p s o n submits an affidavit from his sister, Barbara Thompson, in which she re c o u n ts arriving at the scene of Thompson's November 17 arrest after her brother had been h a n d c u ff e d and placed in a police car; she states that Lt. Woods told her at that time that she c o u ld not talk to her brother and that neither she nor anyone else would be allowed to take h er brother's car home. (Doc. No. 1, Attachment # 1 at p. 8 - "Sworn Affidavit of Barbara R . Thompson.") With regard to Councilman Malone, Thompson maintains that Malone c o u l d have testified to "numerous complaints and ongoing problems with regard to Lt.

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W o o d s 's professional conduct." (Doc. No. 1 at p. 22.) As for Officers Clark and Cox, T h o m p s o n suggests that the officers could have contradicted Lt. Woods's testimony that T h o m p so n stepped toward Lt. Woods when telling Slyvia Banks not to cooperate with Lt. W o o d s 's instructions to exit Thompson's car during the November 17 incident. (Id. at pp. 2 0 -2 1 .) Finally, with regard to attorney Jim Ingram, Thompson maintains that Ingram could h a v e testified that Lt. Woods, under cross-examination at the state preliminary hearing, a d m itte d that he did not write a ticket at the time of Thompson's November 17 arrest. (Id. at 21.) Addressing this claim in his affidavit, Thompson's counsel avers as follows: A s to the witnesses named in this [claim], I will address each one. Barbara T h o m p so n had no knowledge of the traffic stop or the bag found in P e titio n e r's car. At no time did Petitioner ever express to me that he believed th a t we should call Ms. Thompson as a witness at the hearing. Tony Malone h ad no knowledge of the traffic stop or the bag found in Petitioner's car. Mr. M a lo n e was the President of the Lanett, Alabama, chapter of the NAACP. He to ld me that he had received several complaints from black citizens in Lanett c o m p l a i n i n g of racial profiling and harassment by Lt. Woods. When I d is c u ss e d subpoenaing Mr. Malone, he became hostile and stated that he w o u ld not testify voluntarily, as he was a businessman who had to do business in Lanett. In light of Mr. Malone's hostility and reluctance to testify, and his lack of knowledge concerning the traffic stop or the bag found in Petitioner's c a r, I made a tactical decision not to call Mr. Malone as a witness. I fully d is c u s s e d this decision with Petitioner and he did not object to this strategy. T h e testimony of Officers Clark and Cox would have supported and c o rro b o ra ted that of Lt. Woods, and nothing they would have testified to w o u ld have helped Petitioner's case. At no time did Petitioner ever express to m e that he believed that we should call Officer Clark or Officer Clark as a w itn e ss at the hearing. Attorney James Ingram represented Petitioner at the p re lim in a ry hearing conducted in the state court. Mr. Ingram initially told me th a t Lt. Wood admitted at that hearing that Lt. Wood did not issue Petitioner a ticket at the time of Petitioner's arrest. However, I obtained and reviewed 10

a transcript of the preliminary hearing and discovered that the transcript re f le c te d that Lt. Woods did not testify concerning the question of whether he is s u e d Petitioner a ticket or not. When I discussed this with Mr. Ingram, he d id not dispute the accuracy or authenticity of the transcript, and admitted that h e must have been mistaken concerning his memory of Lt. Woods's testimony a t the preliminary hearing. At that point, Mr. Ingram had no testimony of v a lu e to offer at the revocation hearing, which is why I did not ask him to a tte n d the hearing after it had been continued. I fully discussed this decision w ith Petitioner. (D o c. No. 3 at pp. 4-5 - "Affidavit of Donnie W. Bethel.") O n c e again, Thompson points to no facts reasonably available to his counsel at the tim e of the revocation hearing that might have suggested to counsel that testimony from any o f these witnesses would prove beneficial to Thompson or that these witnesses indeed would h a v e been willing to provide such testimony. Thompson does not allege that he ever in f o rm e d counsel prior to the revocation hearing that his sister could testify to any of the m a tte rs asserted by her in her affidavit, and there is no indication that Thompson's sister ever ev iden ce d a willingness to provide exculpatory testimony on her brother's behalf. Counsel's a f f id a v it establishes that Councilman Minor ­ in light of his expressed reluctance to testify ­ was unlikely to provide testimony beneficial to Thompson. Thompson's claim that O f f ic e rs Clark and Cox would provide testimony that impeached Lt. Woods is based on n o th in g more than unsupported speculation by Thompson. Finally, this court's review of the tra n sc rip t of Thompson's state preliminary hearing fully supports the statements by T h o m p s o n 's counsel in his affidavit that Lt. Woods did not testify at the state preliminary h e a rin g concerning the question of whether he issued Thompson a ticket on the date of his

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N o v e m b e r 17 arrest. Thus, Thompson's attorney in the state proceedings, Jim Ingram, could n o t have provided testimony at the revocation hearing to impeach Lt. Woods's testimony on th is question. F o r these reasons, Thompson has failed to demonstrate that his counsel's performance i n this regard was professionally unreasonable. Strickland, 466 U.S. at 688. Moreover, b e c au s e Thompson also fails to demonstrate that the testimony of the uncalled witnesses was re a so n a b ly likely to have changed the outcome of the revocation proceeding, he fails also to d em o n strat e the necessary prejudice required under Strickland. Consequently, he is not e n title d to any relief based on this claim of ineffective assistance of counsel. See Strickland, 4 6 6 U.S. at 687-89. 3. F a ilu r e to Pursue Reconstruction of Videotape Recording

T h o m p s o n contends that his counsel was ineffective for "failing to pursue r e c o n s tr u c tio n of the videotape that was allegedly destroyed by the Government's witness, w h ic h would have confirmed my account of the events at the time of the arrest." (Doc. No. 1 at p. 17 - "Addendum # 1.c.") A t the revocation hearing, Lt. Woods testified that the videotape recording device in h is patrol car malfunctioned and that, therefore, the November 17 arrest of Thompson was n o t recorded. Accordingly, there was nothing on a video that could be "reconstructed." As s u c h , any efforts to "pursue reconstruction of the videotape" could not possibly have

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b e n e fitte d Thompson's defense.4 Consequently, Thompson's claim of ineffective assistance o f counsel in this regard fails to establish deficient performance or prejudice within the m e a n in g of Strickland v. Washington, 466 U.S. 668 (1984). He is not entitled to any relief b a s e d on this claim. 4. Failure to Object to Continuance

T h o m p s o n contends that his counsel was ineffective for failing to object to the c o n tin u a n c e of the revocation hearing on February 15, 2006, when, according to Thompson, a government witness failed to appear in court. (Doc. No. 1 at p. 17 - "Addendum # 1.d.") It is not clear from the record that the continuation of the revocation hearing on F eb rua ry 15, 2006, was at the request of the government, or that it stemmed from the failure o f a government witness to appear. The court's records reflect that the revocation hearing w a s initially scheduled for December 21, 2005. (Criminal Case No. 3:92cr162 - Doc. No. 4 0 9 .) On that date, the defense made an oral motion to continue, which the court granted. (C rim in a l Case No. 3:92cr162 - Doc. No. 416.) On December 23, 2005, the court entered a n order resetting the revocation hearing for January 17, 2006. (Criminal Case No.

3 :9 2 c r1 6 2 - Doc. No. 418.) On January 11, 2006, on its own motion, the court reset the h e a rin g date for January 26, 2006. (Criminal Case No. 3:92cr162 - Doc. No. 426.)

T h e re a fte r, a second defense motion for continuance was filed, and the court granted the m o tio n , resetting the hearing for February 15, 2006. (Criminal Case No. 3:92cr162 - Doc.

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See "Affidavit of Donnie W. Bethel" (Doc. No. 3) at pp. 2-3. 13

N o s . 429 & 430.) On February 14, 2006, the defense filed its third motion for continuance. (C rim in a l Case No. 3:92cr162 - Doc. No. 439.) That motion was granted, and the revocation h e a rin g was ultimately reset for April 4, 2006, on which date the hearing in fact took place. (C rim inal Case No. 3:92cr162 - Doc. No. 440.) The government argues (Doc. No. 6 at p. 10) that even if there is some mistake in the c o u rt's records and the request for a continuance of the February 15, 2006, hearing was made b y the United States, and not the defense, Thompson has failed to show how his counsel's f a ilu re to object to the final continuance prejudiced him. The undersigned agrees. Not only d o the court's records fail to establish that the continuance was, as Thompson claims, at the g o v e rn m e n t's request, but the revocation hearing had been delayed for almost two months a t the request of the defense by the time the February 15, 2006, hearing was continued. T h o m p so n fails to establish deficient performance by his counsel or any prejudice in this re g a rd . Strickland v. Washington, 466 U.S. 668 (1984). Consequently, he is not entitled to a n y relief based on this claim of ineffective assistance. 5. Failure to Move to Suppress Evidence

Thompson argues that his counsel rendered ineffective assistance by failing to move to suppress the government's evidence on the basis of improper search and seizure. (Doc. N o . 1 at p. 17 - "Addendum # 1.e.") T h e Federal Rules of Evidence do not apply in supervised release revocation p ro c e e d in g s . United States v. Frazier, 26 F.3d 110, 113-14 (11 th Cir. 1994). Moreover, the

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e x c lu s io n a ry rule does not apply to supervised release revocation hearings. Id. at 114 (citing U n ite d States v. Montez, 952 F.2d 854, 858 (5 th Cir. 1992); United States v. Kindred, 918 F .2 d 485, 486 (5 th Cir. 1990)). A d d r e ss in g this issue in his affidavit, Thompson's counsel states: P etitio n e r and I had several discussions in which I addressed the issue of s u p p re ss in g the fruits of the search of Petitioner's car. I explained the d iffe ren ce s between a trial and a revocation hearing. I explained the standard o f proof at a trial is proof beyond a reasonable doubt, while the standard of p r o o f at a revocation hearing is a preponderance of the evidence. I also e x p la in e d that the Federal Rules of Evidence would apply at a trial, but that th o se Rules don't apply at an evidentiary hearing. I further explained how this im p a c ted the suppression of evidence: evidence that might be suppressed at a tr ia l would be admissible at an evidentiary hearing. Petitioner understood this. (D o c. No. 3 at p. 3 - "Affidavit of Donnie W. Bethel.") T h o m p s o n has no basis for arguing that his counsel rendered ineffective assistance b y failing to move to suppress the government's evidence in a proceeding at which the e x c lu s io n a ry rule did not apply. Consequently, he fails to establish deficient performance b y his counsel or resulting prejudice. Strickland v. Washington, 466 U.S. 668 (1984). He is not entitled to any relief based on this claim. 6. F a ilu r e to Move for Discovery of Government's Evidence

Thompson contends that his counsel was ineffective for failing "to move for discovery re g a rd in g the substance allegedly found in [Thompson's] vehicle and verification that the w ea p o n allegedly found was in fact an actual firearm." (Doc. No. 1 at p. 17 - "Addendum # 1.f.")

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A d d r e ss in g this claim, Thompson's counsel states: A s to failing to move to have the alleged crack cocaine tested, this simply was im m a te ria l to the strategy we employed at the hearing. We contended that the b a g and its contents that were found in Petitioner's car did not belong to P e ti ti o n er. It would not have mattered at all if we could somehow have co n v in ce d the court that the substance in the bag was not crack, if the court still found that the gun belonged to Petitioner, because the Court would still h a v e found that Petitioner violated the terms of his supervised release by p o ss es sin g a firearm. In essence, the gun and the crack rose and fell together. (D o c. No. 3 at pp. 3-4 - "Affidavit of Donnie W. Bethel.") A g a in , "[t]actical decisions of counsel are entitled to broad deference." Routly v. S i n g le ta r y , 33 F.3d 1279, 1287 (11 th Cir. 1994). Moreover, Thompson asks this court to a ss u m e that analysis of the evidence found in his car would establish that the seized s u b s ta n c e was not in fact crack cocaine and that the seized pistol was not in fact an actual f ire a rm . He offers this court nothing to support such suppositions. Consequently, Thompson f a ils to demonstrate that his counsel's performance was deficient or that he was prejudiced b y counsel's performance in this regard. Strickland, 466 U.S. at 688. As such, he is not e n title d to any relief based on this claim of ineffective assistance of counsel. B. N e w ly Discovered Evidence T h o m p s o n claims that newly discovered evidence establishes that the evidence p re se n te d against him at the revocation hearing was fabricated and was "the product of the w o rs t sort of governmental abuse of a citizen's Constitutional rights." (Doc. No. 1 at p. 18 " A d d e n d u m # 2.") In this regard, Thompson alleges that Lt. Woods planted the drugs and th e firearm found in his car. (Id.) He asserts that sometime after the revocation hearing, Lt. 16

W o o d s "was investigated and terminated from the police force for abuse of his authority for re ta lia to ry purposes" and that action against Lt. Woods supports his claim that Lt. Woods f a b ric a te d evidence against him.5 (Id.) In his affidavit addressing the claims of ineffective assistance of counsel presented a g a in st him by Thompson, counsel for Thompson states that Thompson never suggested to h im or anyone in his office (the Office of the Federal Defender) that Lt. Woods planted the " f an n y pack" containing the drug and firearm evidence in his car and that, in his discussions o f the case, Thompson never disputed that Lt. Woods found the fanny pack in his car. (Doc. N o . 3 at p. 4 - "Affidavit of Donnie W. Bethel.") According to counsel, Thompson insisted to him and his investigator only that the fanny pack was not his and that it may have been left in his car by an unnamed man who used his car earlier in the day, by his daughter, or by his g irlf rie n d Sylvia Banks. (Id.) Further, as noted earlier in this Recommendation, counsel also in d ic a te d in his affidavit that Sylvia Banks had confirmed to him and his investigator that th e re was indeed a black bag on Thompson's car seat; counsel also learned that Thompson h a d instructed Banks to lie on his behalf and claim ownership of the gun found in the bag. (Id . at p. 2.) Finally, in his testimony at the revocation hearing, Thompson never disputed th a t there was a fanny pack in his car before he was approached by police on November 17. T h is court finds that Lt. Woods's termination from the police force based on

Thompson maintains that the termination of Lt. Woods "established proof that he was not credible and possessed a character capable of retaliation, racial profiling, and evidence planting in violation of policy and procedural methods regarding his arrest patrol." (Doc. No. 1 at p. 16.) 17

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a p p a re n tly unrelated charges of abuse of authority is not a sufficient basis for overturning the re su lts of Thompson's revocation proceeding. The issue of Lt. Woods's credibility was th o ro u g h ly explored by Thompson's counsel during cross-examination and in his arguments to the district court. Further, Thompson's after-the-fact claim that Lt. Woods planted e v id e n c e against him does not qualify as newly discovered evidence. "A claim belatedly p u rs u e d is not newly discovered evidence." United States v. Seago, 930 F.2d 482, 490 (6 th C ir. 1991) (citation omitted). This court agrees with the government's contention that T h o m p so n 's claim of planted evidence is also barred because it could have been previously ra is e d . (See Doc. No. 6 at 12.) To the extent that Thompson suggests that his counsel was in e f fe c ti v e for failing to pursue a "planted evidence" defense at the revocation hearing, T h o m p so n 's claim lacks merit. Counsel's affidavit and other aspects of the record previously d is c u s s e d reflect that counsel had no reasonable basis for pursuing such a defense at the time o f the revocation hearing. Thompson is not entitled to any relief based on this claim. C. D istrict Court's Failure to Allow Counsel Opportunity to Object to F in d in g s of Fact, Conclusions of Law, and Sentence Imposed T h o m p so n argues that the district court failed to elicit fully articulated objections to its findings of fact, conclusions of law, and the manner in which its sentence was imposed, a s required by United States v. Campbell, 473 F.3d 1345 (11 th Cir. 2007). (Doc. No. 1 at p. 1 8 - "Addendum # 3.") In Campbell, the Eleventh Circuit cited its holding in United States v. Jones, 899 F.2d 1 0 9 7 (11 th Cir. 1990), wherein the Court held that "the district courts [are] to elicit fully 18

a rtic u la te d objections, following imposition of sentence, to the court's ultimate findings of f a ct and conclusions of law." 899 F.2d at 1102. The Court in Jones further stated that the " d is tric t court should also elicit from counsel an articulation of the grounds on which the o b je c tio n is based." Id. The objective in Jones was to "ensure ... that all objections are ra ise d in the trial court and that the ground for each objection is clearly stated," which will " a id the district court in correcting any error, tell the appellate court precisely which o b jectio n s have been preserved and which have been waived, and enable the appellate court to apply the proper standard of review to those preserved." Id. at 1102-03. In Campbell, the E le v e n th Circuit held that the requirements of Jones must be followed by district courts in s u p e rv is e d release revocation proceedings. Campbell, 473 F.3d at 348. T h o m p so n contends that the district court's failure to follow the Campbell/Jones req u irem en ts in his case resulted in: (1) the court's failure to consider the advisory

s e n te n c in g guidelines in imposing a sentence; (2) imposition of an unreasonable revocation s e n te n c e; and (3) his counsel's being unable to argue on his behalf for a lower sentence. (D o c. No. 1 at pp. 18-20 - "Addendum # 3.") T h e record reflects that the district court made findings that Thompson was guilty of p o ss e ss in g a controlled substance and possessing a firearm, in violation of the terms of his s u p e rv is e d release. (Revocation Hearing at p. 116.) The court then revoked Thompson's s u p e rv is e d release and elicited input from the parties as to what sentence ought to be im p o s e d . (Id.) It is clear from the court's subsequent statements that the court then

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c o n s id e re d the applicable advisory guidelines sentencing range. (Id. at pp. 117-19.) After th e Probation Office argued for a revocation sentence of 46 months ­ which was at the top e n d of the advisory guidelines range of from 37 to 46 months ­ Thompson's counsel argued th a t Thompson had made positive adjustments while on supervised release and that persons c o m m ittin g acts far worse than Thompson's had received revocation sentences far lower than th e sentence being recommended by the Probation Office in his case. (Id. at 117.) The d is tric t court then summarized the facts constituting Thompson's violations and characterized h is violations as "very, very serious" offenses. (Id. at 120.) The 46-month sentence imposed b y the district court was at the top end of the advisory guidelines range. A lth o u g h , after imposing sentence, the district court did not elicit objections from c o u n se l, the record was sufficient to enable meaningful appellate review of the issues T h o m p s o n contends he was unable to present as a result of the court's failure to follow the C a m p b e ll/J o n e s requirements. As indicated above, the district court made an on-the-record c o n sid e ra tio n of the advisory guidelines range in imposing sentence. Furthermore, not only d id counsel argue strenuously on Thompson's behalf during the hearing for a lower sentence, b u t counsel raised a reasonableness issue on direct appeal of the revocation proceeding. The E l e v e n th Circuit found that the imposition of Thompson's sentence reflected the district c o u rt's consideration of several of the relevant factors under 18 U.S.C. § 3553(a) and that, c o n se q u e n tly, Thompson's sentence was not unreasonable.6 See United States v. Thompson,

6

On direct appeal of the revocation proceeding, Thompson also argued that (1) the (continued...) 20

2 1 0 Fed.Appx. 857, 860 (11 th Cir. Dec. 13, 2006) (unpublished). B e c au s e Thompson has failed to demonstrate that the existence of a Campbell/Jones v io la tio n impacted the appellate court's review of any of his claims, he is not entitled to any relief on this ground. See United States v. Cruz, 946 F.2d 122, 124 n.1 (11 th Cir. 1991) (a re m a n d based on a violation of the requirements of Jones is unnecessary when the record on a p p e al is sufficient to enable review) (cited in Campbell, 473 F.3d at 1347). III. CONCLUSION

A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U .S .C . § 2255 motion filed by Thompson be denied, as the claims therein entitle him to no r e lie f . It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b efo r e January 29, 2009. A party must specifically identify the findings in the

R e c o m m e n d a tio n to which objection is made; frivolous, conclusive, or general objections

(...continued) government failed to prove by a preponderance of the evidence that he violated the conditions of his supervised release because (a) there was evidence that other people had opportunities to leave the contraband in his car without his knowledge; and (b) there was no evidence presented showing he had actual or constructive possession of the contraband; and (2) the district court failed to give adequate consideration to evidence showing that Lt. Woods's testimony was incredible and biased, as indicated by his testimony that he issued Thompson a ticket number out of sequence from his previous tickets, and evidence regarding Lt. Woods's harassment of Thompson via multiple traffic stops. The Eleventh Circuit addressed the merits of these claims and decided them adversely to Thompson. United States v. Thompson, 210 Fed.Appx. 857, 860 (11th Cir. Dec. 13, 2006) (unpublished). 21

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w ill not be considered. Failure to file written objections to the Magistrate Judge's proposed f in d in g s and recommendations shall bar a party from a de novo determination by the District C o u rt of issues covered in the Recommendation and shall bar the party from attacking on a p p e al factual findings accepted or adopted by the District Court except upon grounds of p la in error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See S te in v. Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc). D o n e this 16 th day of January, 2009.

/s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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