Thomas v. USA

Filing 14

ORDER: The Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, Correct Sentence by a Person in Federal Custody (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. The Clerk shall close this case. Signed by Judge Alvin W. Thompson on 4/26/17. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

NEGUS THOMAS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

: CIVIL NO. 3:15cv1602(AWT)
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RULING ON PETITION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Petitioner Negus Thomas, proceeding pro se, filed a
Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside,
Correct Sentence by a Person in Federal Custody (the “Petition”)
(Doc. No. 1) in which he set forth two claims for relief.

His

first ground for relief (“Claim One”) is that he was never
arraigned on the initial indictment and therefore the court
lacked jurisdiction to try him on the charges contained in the
Superseding Indictment.

His second ground for relief (“Claim

Two”) is that his conviction should be vacated because of
prosecutorial vindictiveness.

On July 18, 2016 the petitioner

moved for leave to supplement the Petition, and the court
granted that motion.

The petitioner set forth three additional

grounds for relief in his Motion for Leave to Supplement 2255
(“the Supplemental Petition”) (Doc. No. 10).

The petitioner’s

third ground for relief (“Claim Three”) is that there was

insufficient evidence to convict him on the narcotics conspiracy
charged in Count One of the Superseding Indictment.

His fourth

ground for relief (“Claim Four”) is that the government
constructively amended the indictment in its closing argument.
Finally, the petitioner’s fifth ground for relief (“Claim Five”)
is that he is entitled to a two-level reduction in determining
his total offense level under the Sentencing Guidelines,
pursuant to 18 U.S.C. § 3582(c)(2).
For the reasons set forth below, his petition, as amended,
is being denied without a hearing.
I. LEGAL STANDARD
A “collateral attack on a final judgment in a criminal case
is generally available under § 2255 only for a constitutional
error, a lack of jurisdiction in the sentencing court, or an
error of law or fact that constitutes a fundamental defect which
inherently results in complete miscarriage of justice.” Graziano
v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal
citation and quotation marks omitted). Section 2255 provides
that a district court should grant a hearing “[u]nless the
motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.” 28 U.S.C. §
2255(b).

However, “[t]he language of the statute does not strip

the district courts of all discretion to exercise their common
sense.”

Machibroda v. United States, 368 U.S. 487, 495 (1962).
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In making its determination regarding the necessity for a
hearing, a district court may draw upon its personal knowledge
and recollection of the case.

See Blackledge v. Allison, 431

U.S. 63, 74 n.4 (1997); United States v. Aiello, 900 F.2d 528,
534 (2d Cir. 1990).

Thus, a § 2255 petition, or any part of it,

may be dismissed without a hearing if, after a review of the
record, the court determines that the motion is without merit
because the allegations are insufficient as a matter of law.
II. DISCUSSION
A. Claim One
The petitioner contends that he was never arraigned on the
initial indictment and, therefore, the court lacked jurisdiction
to try him on the charges in the Superseding Indictment.
However the docket sheet in the criminal case shows that the
petitioner was presented and arraigned on the initial
indictment.

The docket sheet reflects that the petitioner was

arrested on March 14, 2014 and that his initial presentment was
held that day and he was detained.
Federal Rule of Criminal Procedure 10 sets forth the
requirements with respect to an arraignment:
(a)

In General. An arraignment must be conducted in open
court and must consist of:
(1) ensuring that the defendant has a copy of the
indictment or information;

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(2) reading the indictment or information to the
defendant or stating to the defendant the substance of
the charge; and then
(3) asking the defendant to plead to the indictment or
information.
Fed. R. Crim. P. 10.
for March 18, 2002.
language:

There are six entries on the docket sheet
The third entry contains the following

“PLEA entered by Negus Thomas. Not Guilty: Negus

Thomas (1) count(s) 1, 4, 10 Court accepts plea.”

There is also

a motion by the petitioner for bond, which was denied, and a
scheduling order was entered that day.

See Docket Entry No. 37.

Thus the record shows that the petitioner was presented and
arraigned on the initial indictment, so this claim lacks merit.
B. Claim Two
The petitioner argues that his conviction should be vacated
because of prosecutorial vindictiveness.

The petitioner was

charged in the initial indictment in Counts One, Four and Ten
with narcotics offenses.

Count One charged that from May 16,

2001, until about March 11, 2002, the petitioner, Jerkeno
Wallace and eight others conspired to possesses with intent to
distribute and did distribute 50 grams or more of cocaine base
(“crack”) in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii) and 846.

Count Four charged that on February

11, 2002, the petitioner aided and abetted Kimberly Cruze in the
distribution of a quantity of cocaine base in violation of 21

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U.S.C. § 841(b)(1)(C) and 18 U.S.C. § 2.

Count Ten charged that

from about February 5, 2002, until about March 11, 2002, the
petitioner and Kimberly Cruze operated a drug distribution
outlet from their residence on the first floor of 81-83 Edgewood
Street, Hartford, Connecticut, in violation of 21 U.S.C. §
856(a)(2).
The Superseding Indictment was returned on July 9, 2002 and
it contained four new charges against the petitioner and codefendant Jerkeno Wallace.

Count Eleven charged that on May 16,

2001, the petitioner and Wallace conspired to use a firearm in
furtherance of a drug trafficking crime (the conspiracy charged
in Count One) and/or a crime of violence (the drive-by shooting
charged in Count Twelve) in violation of 18 U.S.C. §§ 924(o).
Count Twelve charged that on May 16, 2001, the petitioner and
Wallace, aided and abetted by each other, in furtherance of a
major drug offense (the conspiracy charged in Count One), with
malice aforethought, and with premeditation, and with intent to
intimidate, injure, and maim, fired a weapon into a group of
persons, and in so doing, intentionally committed a first degree
murder in violation of 18 U.S.C. §§ 36(b)(2)(A), 1111(a) and 2.
Count Thirteen charged that on May 16, 2001, the petitioner and
Wallace, aided and abetted by one another, during and in
relation to a drug trafficking crime (the conspiracy charged in
Count One), discharged a firearm and, in so doing, murdered Gil
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Torres, in violation of 18 U.S.C. §§ 924(j)(1),
924(c)(1)(A)(iii) and 2.

Count Fourteen charged that on May 16,

2001, the petitioner and Wallace, aided and abetted by one
another, during and in relation to a crime of violence (the
drive-by shooting charged in Count Twelve), discharged a firearm
that resulted in the first degree murder of Gil Torres, again in
violation of 18 U.S.C. §§ 924(j)(1), 924(c)(1)(A)(iii) and 2.
The petitioner argues that the new charges in the
Superseding Indictment were brought against him to penalize him
for seeking to go to trial on the charges in the initial
indictment.

“[T]he decision as to whether to prosecute

generally rests within the broad discretion of the prosecutor,”
and a prosecutor’s pretrial decision is presumed legitimate.
United States v. White, 972 F.2d 16, 19 (2d Cir. 1992).
However, a prosecution brought with a vindictive motive, such as
exercise of authority motivated to penalize a defendant for the
valid exercise of a constitutional or statutory right to an
appeal or habeas proceeding is prohibited by the Due Process
Clause of the Fourteenth Amendment.
417 U.S. 21, 24-26 (1974).

See Blackledge v. Perry,

To establish actual vindictive

motive, the defendant “must show that ‘(1) the prosecutor
harbored genuine animus toward the defendant, or was prevailed
upon to bring the charges by another with animus such that the
prosecutor could be considered a “stalking horse,” and (2) [the
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defendant] would not have been prosecuted but for the animus.’”
United States v. Koh, 199 F.3d 632, 640 (2d Cir. 1999). “[A]
finding of actual vindictiveness requires ‘direct’ evidence,
such as evidence of a statement by the prosecutor, which is
available ‘only in a rare case.’”

United States v. Johnson, 171

F.3d 139, 140 (2d Cir. 1999). “A presumption of vindictiveness
arises when “the circumstances of the case create a ‘realistic
likelihood’ of prosecutorial vindictiveness.” Id. at 141.
The petitioner does not make any factual allegations that
could support a conclusion that the government harbored any
animus towards him.

Nor does he produce any evidence, direct or

circumstantial, that the charging decision reflected by the
Superseding Indictment was an unjustifiable penalty imposed
because the petitioner exercised his right to plead not guilty.
The Superseding Indictment was returned less than four months
after the petitioner was arraigned on the initial indictment.
The government states that during this period the government
developed cooperating witnesses who agreed to testify about the
petitioner’s involvement in the murder of Gil Torres and once
this evidence was obtained, the government obtained the
Superseding Indictment.

As detailed in the United States’

Response to Defendants’ Motion for Judgment of Acquittal and for
New Trial (Doc. No. 512 in Case Number 3:02cr72 (AWT))(“Response
to Mot. for Acquittal”), those cooperating witnesses did in fact
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testify at trial with respect to the petitioner’s involvement in
the murder of Gil Torres.

Moreover, a witness who was

inarguably a key witness with respect to the charges added in
the Superseding Indictment pled guilty and entered into a
cooperation agreement with the government shortly before the
Superseding Indictment was returned.
The petitioner merely asserts that because he had pled not
guilty and a superseding indictment with additional charges was
returned, that superseding indictment must have been motivated
by prosecutorial vindictiveness.
sufficient.

However, that is not

Moreover, the defendant has not even met the

standard for showing that he is entitled to obtain discovery on
a claim of vindictive prosecution.

See United States v.

Sanders, 211 F.3d 711, 717 (2nd Cir. 2000)(“the defendant must
show ‘some evidence’ of ‘genuine animus,’ not the mere
possibility that animus might exist under the circumstances”).
C. Claims Three and Four
In Claim Three the petitioner argues that there was
insufficient evidence to convict him of engaging in the
narcotics conspiracy charged in Count One.

He states:

“Petitioner’s argument is that he sold drugs by himself and did
not sell drugs or conspire to distribute drugs with any of the
other defendants.”

Supplemental Petition at 6.

The petitioner

made this argument in his motion for judgment of acquittal and
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for a new trial, but the court agreed with the government’s
analysis as to why the petitioner’s argument lacked merit.
Response to Mot. for Acquittal at pp. 20-23.

See

Also, on appeal

the petitioner argued that “[t]he trial court erred in denying
Thomas’ Rule 29 Motion for Judgment of Acquittal, which was
based upon the insufficiency of the evidence to support the
conviction.”

Brief of the Appellant, Negus Thomas (Doc. No. 12-

1) at 30 of 109.
In Claim Four the petitioner argues that the government
constructively amended the indictment in its closing argument.
The petitioner contends that “[i]n the instant case during
closing arguments the prosecutor for the government argued that
the agreement of the conspiracy was, the defendants conspired to
distribute the drugs from the location of 81-83 Edgewood Street.
. . . The notion of the defendants distributing drugs from the
location of 81-83 Edgewood Street Constructively Amends the
charge brought down by the Grand Jury.”
at 14.

Supplemental Petition

The petitioner raised this argument on appeal.

See

Brief of the Appellant, Negus Thomas (Doc. 12-1) at pp. 77 to
78.
The petitioner’s conviction was affirmed with respect to
all counts except Counts Thirteen and Fourteen, which were
remanded for the court to exercise its discretion to vacate the
conviction on one of the counts.

See Summary Order, United
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States v. Wallace, 178 Fed.Appx. 76 (2006); United States v.
Wallace, 447 F.3d 184 (2d Cir. 2006).

Thus, Claim Three and

Claim Four are barred because a habeas motion may not be used
“to relitigate issues that were raised and considered on direct
appeal.”

United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997).

See also United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977)
(per curiam) (“[O]nce a matter has been decided adversely to a
defendant on direct appeal it cannot be relitigated in a collateral
attack”.) (citations omitted).

This rule “prevents re-litigation

in the district court not only of matters expressly decided by the
appellate court, but also precludes re-litigation of issues
impliedly resolved by the appellate court's mandate.”

Yick Man Mui

v. United States, 614 F.3d 50, 54 (2d Cir. 2010).

D. Claim Five
The petitioner states that “[o]n June 2, 2014 the United
States Sentencing Commission (U.S.S.C.) voted unanimously to
amend the federal sentencing guidelines for drug offenders by
reducing the guideline level by 2-points.

In other words the

base offense level for a specific drug quantity will now be two
points lower.”

Supplemental Petition at 2.

Based on that fact

the petitioner seeks a two-level reduction for purposes of his
Guidelines calculation.

However, the petitioner is ineligible

for a sentence reduction under 18 U.S.C. § 3582(c)(2) because

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the amendment to the Sentencing Guidelines for “crack” cocaine
did not have the effect of lowering his Guidelines range.
In Dillon v. United States, 130 S. Ct. 2683 (2010), the
Supreme Court discussed the two-step approach for application of
a retroactive amendment to the Sentencing Guidelines.

With

respect to the first step, the Court stated:
At step one, § 3582(c)(2) requires the court to follow
the Commission’s instructions in § 1B1.10 to determine the
prisoner’s eligibility for a sentence modification and the
extent of the reduction authorized. Specifically, § 1B1.10
(b)(1) requires the court to begin by “determin[ing] the
amended guideline range that would have been applicable to the
defendant” had the relevant amendment been in effect at the
time of the initial sentencing. “In making such determination,
the court shall substitute only the amendments listed in
subsection [(d)] for the corresponding guideline provisions
that were applied when the defendant was sentenced and shall
leave all other guideline application decisions unaffected.”

Id. at 2691.
Here the Presentence Report reflects that the petitioner’s
base offense level was not calculated based on the quantity of
narcotics involved in accordance with § 2D1.1, but rather by a
cross-reference to U.S.S.G. § 2A1.1, due to the death of Gil
Torres.

The Presentence Report states:

Base Offense Level: Guideline § 3D1.3(a) states that in the case
of counts grouped together pursuant to § 3D1.3(a)-(c), the
offense level applicable to a Group is the offense level,
determined in accordance with Chapter Two and Parts A, B, and C
of Chapter Three, for the most serious of the counts comprising
the Group, i.e., the highest offense level of the counts in the
Group. The highest level in this Group is Count 12, Drive-by
Shooting, Murder, and Aiding and Abetting. The guideline for
18 U.S.C. § 36 is found in Guideline § 2D1.1.
Section
2D1.1(d)(1) states that if a victim was killed under
circumstances that would constitute murder under 18 U.S.C. §
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1111 had such killing taken place within the territorial or
maritime jurisdiction of the United States, apply § 2A1.1 (First
Degree Murder).
Section 2A1.1(a) establishes a base offense
level 43 for First Degree Murder.
Presentence Report ¶ 53.
Thus the amendment to the “crack” cocaine Guidelines “does not
have the effect of lowering the defendant’s applicable guideline
range because of the operation of another guideline or statutory
provision.”

U.S.S.G. § 1B1.10, Comment, n.1(A).

Consequently, the

petitioner cannot receive a reduction under § 3582(c) because his
total offense level was based on the guideline for first degree
murder, i.e. U.S.S.G. § 2A1.1, and not on the type and quantity of
the drugs involved in the crimes of conviction.

See United States

v. Tyler, 328 Fed. App’x 735, 735 (2d Cir. 2009) (Tyler not
entitled to reduction under Section 3582(c) “because Tyler’s
applicable Guidelines offense level at his initial sentencing was
based on the murder of Lanny Dillard, and the sentencing range
under which Tyler was sentenced was not subsequently lowered by the
crack cocaine amendments.”)
III. CONCLUSION
The Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence by a Person in Federal Custody (Doc.
No. 1) as amended by the Motion for Leave to Supplement 2255 (Doc.
No. 10) is hereby DENIED.

The court will not issue a certificate

of appealability because the petitioner has not made a substantial

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showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(2).
The Clerk shall close this case.
It is so ordered.
Signed this 26th day of April 2017, at Hartford, Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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