Thomas v. United States of America

Filing 16

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 9/15/16. (SMH)

FILED
2016 Sep-15 PM 03:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
EDDIE JEROME THOMAS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 1:13-CV-8029-SLB
Crim. Case No. 1:12-CR-0076-SLB-TMP

MEMORANDUM OPINION
This case is presently pending before the court on petitioner Eddie Jerome Thomas’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody [hereinafter Motion to Vacate]. (Doc. 1; Crim. Doc. 20.)1 Thomas
contends he was improperly sentenced under the Armed Career Criminal Act [ACCA], 18
U.S.C. § 924(e), citing Johnson v. United States, 135 S. Ct. 2551 (2015), Descamps v.
United States, 133 S. Ct. 2276 (2013), and Alleyne v. United States, 133 S. Ct. 2151 (2013).
For the reasons set forth below, the court finds that Thomas’s Motion to Vacate is due to be
denied.

1

Citations to documents in the court’s record in petitioner’s Motion to Vacate appear
as “(Doc. __).” Citations to documents in the court’s record in the criminal proceedings
against petitioner, Case No. 1:12-CR-0076-SLB-TMP, appear as “(Crim. Doc. __).” Page
number citations refer to the page numbers assigned to the document by the court’s CM/ECF
electronic filing system.

I. STANDARD OF REVIEW
Pursuant to § 2255 –
A prisoner in custody under sentence of a [district] court . . . claiming the right
to be released upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States . . . may move the court which
imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for that narrow compass of other injury that could not have been
raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.”
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)(quoting Richards v. United
States, 837 F.2d 965, 966 (11th Cir.1988)(quoting United States v. Capua, 656 F.2d 1033,
1037 (5th Cir. Unit A Sep.1981)))(internal quotations omitted). Thomas has the burden of
showing he is entitled to relief from his sentence. Barnes v. United States, 579 F.2d 364,
366 (5th Cir. 1978)(citing Coon v. United States, 441 F.2d 279 (5th Cir.), cert. denied, 404
U.S. 860 (1971)).2 He must prove “not merely that the errors [in the proceeding] created a
possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting [the entire proceeding] with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982).

2

Decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1,
1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981)(en banc).
2

II. BACKGROUND
On February 29, 2012, the Grand Jury returned an Indictment against Thomas. (Crim.
Doc. 1.) The Indictment charged Thomas with possession of a firearm in violation of 18
U.S.C. § 922(g)(1); it stated:
On or about the 19th day of March, 2011, in Talladega County, within
the Northern District of Alabama, the defendant,
EDDIE JEROME THOMAS,
[1] after having been convicted on January 13, 1992, in the Circuit Court of
Talladega County, Alabama, of the offense of Robbery, Second Degree, in
case number CC-1991-0397; and [2] after having been convicted on November
6, 1995, in the Circuit Court of Talladega County, Alabama, of the offense of
Unlawful Distribution of a Controlled Substance, in case number
CC-1995-0494; and [3] after having been convicted on April 14, 2008, in the
Circuit Court of Talladega County, Alabama, of the offense of Unlawful
Distribution of a Controlled Substance, in case number CC-2007-0683, each
of the said offenses being a crime punishable by a term of imprisonment
exceeding one year, did knowingly possess in and affecting commerce a
firearm, that is, a Hi Point 9mm pistol, in violation of Title 18, United States
Code, Section 922(g)(1).
(Crim. Doc. 1.) Thomas’s case was set for trial on May 7, 2012. (Crim. Doc. 8.)
However, prior to that date, the court was notified that Thomas wished to plead guilty.
A change of plea hearing was held on April 19, 2012. On that date the court accepted
Thomas’s plea of guilty, finding the “plea of guilty is freely and voluntarily entered, and the
requisite factual basis for [the] plea exists.” (Crim. Doc. 21 at 22-23.)
Thereafter, following a sentencing hearing, on August 9, 2012, the court entered its
Judgment in a Criminal Case, which imposed a custodial sentence of 180 months (15 years)

3

in accordance with § 924(e)(1). (Crim. Doc. 18 at 2.) Thomas did not appeal his conviction
and/or sentence.3
Thomas now asks the court to vacate his sentence based on three Supreme Court
decisions: Alleyne, Descamps, and Johnson. In his Motion to Vacate, Thomas asserts two
grounds for relief:
GROUND ONE: Actual innocence of ACCA sentence that was imposed in
violation of the Constitution and laws of the United States.
...
Thomas was sentenced to an enhanced statutory sentence under the . . . Armed
Career Criminal Act (ACCA) based on facts not charged in the indictment[ ]
and not presented to a jury and proved beyond a reasonable doubt.
Furthermore, the U.S. Supreme Court recently overruled Harris,4 and held that
such a statutory enhancement is an element of the offense that must be charged
in the indictment and proved beyond a reasonable doubt. See Alleyne v.
United States, S. Ct. No. 1109335, 6/17/2013. Moreover, one of Thomas's
prior drug offenses is not a serious drug offense under the ACCA[ ] and should
not have been used as an ACCA predicate. See Descamps v. United States,
S. Ct. No. 11-9540, 6/20/2013. Both Alleyne and Descamps are new
substantive rules of Constitutional law applicable to collateral review. See
Davis v. United States, 417 U.S. 333(1974). Also, a claim of actual
[innocence] of an ACCA sentence is cognizable on collateral review. See
McQuiggin v. Perkins, S. Ct. No. 12-126, 5/28/2013. Thus, Thomas is entitled
to resentencing without the ACCA.
...
GROUND TWO: Constitutionally ineffective assistance of defense counsel.
...

3

Thomas pleaded guilty without a plea agreement that limited his right to appeal.

4

Harris v. United States, 536 U.S. 545 (2002).
4

In the instant case, the ACCA statutory enhancement was not charged in the
indictment nor proved to a jury beyond a reasonable doubt. However, defense
counsel failed to conduct an independent investigation into the facts and law
applicable to the case, including Thomas's prior offenses that were used as
ACCA predicates. As such, counsel was apparently unaware that Thomas's
prior offenses did not qualify as predicate offenses for purposes of the ACCA
enhancement, and which raised his statutory sentence from 0 [to] 10 years to
15 to life. Thus, counsel's failure to investigate and inform himself of the
applicable law resulted in erroneous legal advice that clearly prejudiced
Thomas by way of the ACCA statutory enhancement. See Strickland v.
Washington, 466 U.S. 668 (1984). See also Missouri [v.] Frye, 132 S. Ct.
1399 (2012) and Lafler v. Cooper, 132 S. Ct. 1376 ( 2012). Thomas is entitled
to resentencing with the effective assistance of counsel for his defense[ ] and
without the ACCA enhancement.
(Doc. 1 at 4-6.)
On September 24, 2015, Thomas filed Addenda, (docs. 7 and 14), asking the court to
review his prior convictions and to vacate his sentence in light of Johnson v. United States.
He is “requesting this court to assess on whether his state priors [qualify] as a ‘violent
felony’ in terms of it definition at law in light of [Johnson].” (Doc. 7 at 2.) In his second
Addendum, Thomas asks the court to determine “whether or not [his prior 1991 second
degree robbery involved actual] conduct that used force or [whether] his codefendant [had]
used force. Movant contends that he was present during the robbery but he did not use force
in any way.”5 (Doc. 14 at 2.) He contends that Johnson requires this court to find “who
used force” and “who aided by another person actually present,” because “[t]hat proof is

5

In his second Addendum, Thomas also asks the court to revisit the Indictment in his
robbery case, which, according to Thomas, states that he had used force to rob a store clerk
and that he was aided by another person. (Doc. 14 at 2.)
5

needed to satisfy the Constitution under the void-for-vagueness doctrine where the
Constitution guarantees that Due Process.” (Id. at 3-4.)
III. DISCUSSION
The ACCA, 18 U.S.C. § 924(e), states:
(e)(1) In the case of a person who violates section 922(g) of this title6 and has
three previous convictions by any court referred to in section 922(g)(1) of this
title for a violent felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be fined under this title
and imprisoned not less than fifteen years . . . .
(2) As used in this subsection –
(A) the term “serious drug offense” means –
...
(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)),7 for which a
maximum term of imprisonment of ten years or more is
prescribed by law;
(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year . . . that –

6

Section 922(g)(1) makes it “unlawful for any person – (1) who has been convicted
in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).
7

The Controlled Substance Act defines “[t]he term ‘controlled substance’ [to] mean
a drug or other substance . . . included in schedule I, II, III, IV, or V of part B of this
subchapter.” 21 U.S.C. § 802(6).
6

(i) has as an element the use, attempted use, or threatened use
of physical force against the person of another [the elements
clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives,
[the enumerated clause] or otherwise involves conduct that
presents a serious potential risk of physical injury to another
[the residual clause] . . . .
18 U.S.C. § 924(e)(footnotes and brackets added); see also Mays v. United States, 817 F.3d
728, 730-31 (11th Cir. 2016). Based on Thomas’s Presentence Investigation Report, (Crim.
Doc. 16), the court found that Thomas had three qualifying, state-court convictions for
purposes of enhancing his sentence: (1) a 1992 conviction for robbery in the second degree,
(2) a 1995 conviction for unlawful distribution of a controlled substance, and (3) a 2008
conviction for unlawful distribution of a controlled substance. His counsel did not object to
the three prior convictions or Thomas’s status as an armed career criminal for sentencing
purposes; at the sentencing hearing, the following discussion occurred between the court and
defense counsel:
THE COURT: Other than the filed objections, Mr. Gomany, do you
have any other objections to the contents of the presentence report?
MR. GOMANY [Thomas’s Counsel]: No, Your Honor. Although, I
did discuss this at length with my client on many occasions about objecting to
the armed career criminal, as an officer of the court, there was no basis to
attack those three prior convictions.
I did a lot of research on that, and I went over it with my client. I even
consulted with other lawyers and whatnot. And there's just no way I could
find a legitimate reason or objection to attack one of those priors.
THE COURT: I looked at it, too. It seems to me that they do qualify,
and that your objection would not have been successful, I do not believe.
7

(Crim. Doc. 22 at 3-4.)
Thomas received a custodial sentence of 180 months, the statutory minimum under
§ 924(e). (Crim. Doc. 18.)
A. ALLEYNE CLAIM8
Mr. Thomas alleges that he was “sentenced to an enhanced statutory sentence under
the [ACCA] based on facts not charged in the indictment and not presented to a jury and
proved beyond a reasonable doubt.”9 (Doc. 1 at 4.) The Government, however, is not
required to allege and/or prove the prior convictions that were used to sentence Thomas as
an armed career criminal.
Neither the Fifth Amendment nor the Sixth Amendment prevents the district
court from finding the fact of [Thomas’s] prior convictions, or using them to
designate him an Armed Career Criminal. Although it is ordinarily true that
all elements of a crime must be alleged by indictment and either proved
beyond a reasonable doubt or admitted by a defendant, there is an exception
for prior convictions. The Constitution does not require that the government
allege in its indictment and prove beyond a reasonable doubt that [Thomas]
had prior convictions for a district court to use those convictions for purposes
of enhancing a sentence.
Alleyne [v. United States, 133 S. Ct. 2151 (2013),] did not overrule
Almendarez–Torres [v. United States, 523 U.S. 224 (1998)], and the Fifth and
Sixth Amendments do not limit the use of [Thomas’s] prior convictions. . . .
[The district court is] bound to follow Almendarez–Torres unless and until the
Supreme Court itself overrules that decision. . . .

8

Because Thomas’s Alleyne claim lacks arguable merit, the court has assumed,
without deciding, that this claim is not procedurally barred.
9

The court notes that the three convictions used to sentence Thomas under ACCA are
actually listed in the Indictment. (Crim. Doc. 1.) Moreover, Thomas pleaded guilty; thus
he waived his right to a jury trial. See Boykin v. Alabama, 395 U.S. 238, 243 (1969).
8

United States v. Smith, 775 F.3d 1262, 1266 (11th Cir. 2014)(internal citations, except as
indicated, and quotations omitted).
Therefore, based on the foregoing, Thomas is not entitled to habeas relief based on
the failure of the Government to allege and prove his prior convictions. Thomas’s Motion
to Vacate, (doc. 1), on this ground will be denied.
B. DESCAMPS CLAIM
Mr. Thomas alleges that “one of [his] prior drug offenses is not a serious drug offense
under the ACCA.” (Doc. 1 at 4 [citing Descamps v. United States, 133 S. Ct. 2276 (2013)].)
He states that “at least one of his prior state drug offense did not qualify as a predicate
offense for enhancement purposes as he could not have received 10 or more years for that
offense.” (Doc. 5 at 2.)
“The Court in Descamps addressed [the Eleventh Circuit’s] approach to determining
whether a crime constitutes a violent felony under the enumerated clause.” Mays, 817 F.3d
at 731 (emphasis added); see also Johnson, 135 S. Ct. at 2551 (“[T]his Court [has] held that
the [ACCA] Act requires courts to use a framework known as the categorical approach when
deciding whether an offense is burglary, arson, or extortion, involves use of explosives,
[under the enumerated clause] or otherwise involves conduct that presents a serious potential
risk of physical injury to another [under the residual clause]. Under the categorical
approach, a court assesses whether a crime qualifies as a violent felony in terms of how the
law defines the offense and not in terms of how an individual offender might have committed

9

it on a particular occasion.”)(internal quotations and citations omitted; emphasis added).
Such approach is not relevant to Thomas’s prior convictions for unlawful distribution of a
controlled substance, which are “serious drug offenses” under the ACCA.
As set forth above, a “serious drug offense” under state law includes “distributing .
. . a controlled substance . . . for which a maximum term of imprisonment of ten years or
more is prescribed by law . . . .” 18 U.S.C. § 924(e)(2)(A)(ii). Under Alabama law, “A
person commits the crime of unlawful distribution of controlled substances if, except as
otherwise authorized, he or she sells, furnishes, gives away, delivers, or distributes a
controlled substance enumerated in Schedules I through V.” Ala. Code § 13A-12-211(a).
“Unlawful distribution of controlled substances is a Class B felony.” Id. (b). The term of
imprisonment for a Class B felony in Alabama is “not more than 20 years or less than 2
years.” Ala. Code 13A-5-6(a)(2). Therefore, both of Thomas’s convictions for “unlawful
distribution” qualify as “serious drug offenses” under § 924(e). The Descamps decision does
not alter this result.
Therefore, Thomas’s Motion to Vacate, (doc. 1), on this ground will be denied.
C. JOHNSON DECISION
Thomas asks “this court to assess on whether his state priors qualif[y] as a “violent
felony” in . . . light of Johnson v. United States.” (Doc. 7 at 2.) Johnson is concerned only
with prior violent felonies under the ACCA’s residual clause. Thomas’s two convictions for
unlawful distribution of controlled substances are “serious drug offenses” and the court did
not consider these convictions to be convictions for “violent felonies” under the ACCA. The
10

court considered his conviction for second degree robbery to be a violent felony under the
elements clause of the ACCA, not the residual clause invalidated in Johnson. See 18 U.S.C.
924(e)(2)(B)(i); Johnson, 135 S. Ct. at 2557 (“We are convinced that the indeterminacy of
the wide-ranging inquiry required by the residual clause both denies fair notice to
defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence
under the clause denies due process of law.”)(emphasis added).
Under Alabama law,
A person commits the crime of robbery in the third degree if in the course of
committing a theft he:
(1) Uses force against the person of the owner or any person present with
intent to overcome his physical resistance or physical power of resistance; or
(2) Threatens the imminent use of force against the person of the owner or
any person present with intent to compel acquiescence to the taking of or
escaping with the property.
Ala. Code § 13A-8-43(a). “A person commits the crime of robbery in the second degree if
he violates Section 13A-8-43 and he is aided by another person actually present.” Ala. Code
§ 13A-8-42(a). Clearly, physical force or the threat of physical force is an element of
robbery in the second degree in Alabama. Therefore, Thomas’s conviction for robbery in
the second degree is a violent felony under the elements clause of § 924(e)(2)(B).
For purpose of determining whether Thomas qualified as an armed career criminal at
the time of sentencing, the court determined that two of Thomas’s convictions were for
“serious drug offenses” and one was for a “violent felony” under the elements clause. None

11

of these prior convictions were considered violent felonies under the residual clause of the
ACCA. Thus, Johnson does not provide a basis for Thomas’s claim for relief.
Based on the foregoing, the court finds that Thomas’s Motion to Vacate, (doc. 1), on
this ground is due to be denied.
D. INEFFECTIVE ASSISTANCE
Thomas contends that he received ineffective assistance of counsel because “counsel
was apparently unaware that Thomas’s prior offenses did not qualify as predicate offenses
for purposes of the ACCA enhancement,” and “counsel’s failure to investigate and inform
himself of the applicable law resulted in erroneous legal advice that clearly prejudiced
Thomas by way of the ACCA statutory enhancement.” (Doc. 1 at 5.) The record rebuts
Thomas’s allegations with regard to counsel’s lack of investigation into his prior criminal
history and it shows that any objection to the enhancement “would not have been
successful.” (See Crim. Doc. 22 at 3-4.)
“An ineffective assistance claim has two components: A petitioner must show that
counsel’s performance was deficient, and that the deficiency prejudiced the defense.”
Wiggins v. Smith, 539 U.S. 510, 521 (2003)(citing Strickland v. Washington, 466 U.S. 668,
687 (1984)).
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said that the
12

conviction or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland, 466 U.S. at 687. Therefore, to establish his entitlement to relief, Thomas must
show that his counsel’s performance “fell below an objective standard of reasonableness”
and that this deficient performance “actually had an adverse effect on the defense.” Id. at
687-88, 693.
In his Motion to Vacate, Thomas contends that his counsel was ineffective for failing
to challenge his prior convictions at sentencing. For the reasons set forth above, the court
finds the record clearly established the three qualifying convictions and any argument from
Thomas’s counsel to the contrary would have been rejected by the court. (See Crim. Doc.
22 at 3-4.) Therefore, the court finds Thomas cannot show deficient performance or
prejudice sufficient to support his ineffective-assistance claim. Strickland, 466 U.S. at 68788, 693; see United States v. Padgett, No. 5:06-CR-13-RS-GRJ, 2015 WL 1931231, *9
(N.D. Fla. Apr. 28, 2015)(“Defendant has established no sentencing error, and no basis for
relief under § 2255, as to this claim. For these reasons, Defendant has also failed to establish
that his trial or appellate counsel performed deficiently by not asserting arguments [based
on a sentencing error] because such arguments would have been futile.”); see also Rupe v.
Wood, 93 F.3d 1434, 1445 (9th Cir. 1996)(“Because the failure to take a futile action can
never be deficient performance, the district court was correct to reject this claim.”); Davis
v. United States, No. CR 110-041, 2013 WL 1130590, at *10 (S.D. Ga. Jan. 15, 2013)(“In

13

other words, Petitioner cannot allege prejudice from any supposed failing of counsel where
the conduct he asserts counsel should have undertaken would have been fruitless.”).
Based on the foregoing, Thomas’s Motion to Vacate, (doc. 1), on this ground will be
denied.
CONCLUSION
Based on the foregoing, the Motion to Vacate filed by petitioner Eddie Jerome
Thomas, (doc. 1), is due to be denied. An Order denying the Motion to Vacate and
dismissing his petition will be entered contemporaneously with this Memorandum Opinion.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” The applicant for § 2255 relief “cannot take an appeal unless a circuit justice or
a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1). And, the “certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2)(emphasis added).

To make a substantial showing of the denial of a

constitutional right, the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotations omitted).

14

Thomas has not demonstrated that he was denied any constitutional right or that the
issue he raises is reasonably debatable and/or deserves encouragement to proceed further.
Therefore, issuance of a certificate of appealability is not warranted in this case.
DONE this the 15th day of September, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

15