Thompson v. UNITED STATES OF AMERICA
Filing
17
ORDER granting in part and denying as moot in part 12 Motion for Leave to File; granting in part and denying as moot in part 13 Motion to supplement; denying 1 Motion to vacate/set aside/correct sentence (2255). Signed by Judge Timothy J. Corrigan on 8/25/2014. (JHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DWAYNE ERIC THOMPSON,
Petitioner,
vs.
Case No.
3:12-cv-564-TJC-TEM
3:09-cr-117-J-32TEM
UNITED STATES OF AMERICA,
Respondent.
ORDER
This case is before the Court on Petitioner Dwayne Eric Thompson’s Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1), Motion for Leave
to File Supplemental Pleading (Doc. 12), and Motion to Supplement 28 U.S.C. § 2255 (Doc.
13).1 The government filed a Response in Opposition (Doc. 10), and petitioner filed a Reply
(Doc. 11). Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the
Court has determined that an evidentiary hearing is not necessary to decide the petition.
I. Background
Petitioner was convicted following a jury trial of possession of a firearm by a
convicted felon and was sentenced to 120 months’ imprisonment. Crim. Doc. 90. Petitioner
direct appealed, challenging the sufficiency of the evidence and the Court’s admission of
letters written by petitioner to his girlfriend. The Eleventh Circuit affirmed petitioner’s
conviction on May 19, 2011, doc. 10-1, and petitioner did not file a petition for writ of
1
Citations to petitioner’s criminal case file, United States of America v. Dwayne Eric
Thompson, 3:09-cr-117-J-32TEM, are denoted as “Crim. Doc. ___.” Citations to petitioner’s
civil § 2255 case file, 3:12-cv-564-TJC-TEM, are denoted as “Doc. ___.”
certiorari with the Supreme Court. Petitioner’s conviction became final on August 17, 2011,
90 days after the Eleventh Circuit rendered its decision when the time for seeking certiorari
expired. Accordingly, petitioner had one year from that date, or until August 17, 2012, to file
a § 2255 motion. The instant motion, dated May 3, 2012, is therefore timely and ripe for
review. 28 U.S.C. § 2255(f).
II. Discussion
After initially filing his § 2255 motion on May 3, 2012, petitioner filed a Motion for
Leave to File Supplemental Pleading (Doc. 12) and a Motion to Supplement 28 U.S.C. §
2255 (Doc. 13), both dated February 5, 2013, and citing Rule 15 of the Federal Rules of
Civil Procedure. Rule 15(d) provides “[o]n motion and reasonable notice, the court may, on
just terms, permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.” In
this case, petitioner sought leave to file supplemental pleadings based on the Supreme
Court’s then-recent grant of certiorari to the Third Circuit in the case of Bond v. United
States, 133 S.Ct. 978 (Jan. 18, 2013), and asked this Court to stay resolution of his § 2255
motion to await the Supreme Court’s decision in that case. Doc.13 at 2. The Supreme Court
decided the case on June 2, 2014. Bond v. United States, 134 S. Ct. 2077 (2014).2 At the
2
In Bond, the Supreme Court invoked the rule of constitutional avoidance in deciding
that the United States could not prosecute a defendant - who merely caused a mild burn on
the victim’s thumb with a chemical irritant - for knowingly using dangerous chemicals that
can cause death, temporary incapacitation, or harm to humans under 18 U.S.C. § 229,
which Congress enacted pursuant to the Chemical Weapons Convention Implementation
Act of 1998, 112 Stat. 2681-856 (1998). Bond, 134 S. Ct. at 2087. Rather than decide
whether the law impermissibly interfered with the states’ police power, the Court opined that
a federal law designed to address the use of chemical weapons by rogues and terrorists
2
outset, the Court notes that it has reviewed the case, and finds that the Supreme Court’s
resolution of that case will not affect this Court’s resolution of petitioner’s § 2255 motion.
In his original, timely-filed § 2255 motion, petitioner argues that both his pretrial and
trial counsel were constitutionally ineffective for failing to file a motion to suppress recordings
of jailhouse calls based upon the government’s “failure to [have the recording] authorized
or approved by a judge of competent jurisdiction in violation of Fed. W.T.A., 18 U.S.C.
Section 2517(5).” Doc. 2 at 3. Specifically, petitioner asserts that his attorneys rendered
constitutionally defective assistance when
both counsel failed to use their skills and knowledge pertaining to that disk
[containing the jail call recordings] because (1) they failed to investigate
whether the intercepted recording was first authorized by a judge of
competent jurisdiction for disclosure and use. (2) The record in the instant
case clearly shows that both counsel failed to timely file a motion for
suppression not due to strategic considerations, but because, they were not
familiar with the facts and law relevant to the intercepted recordings. The
record further show[s] that both counselors were unaware of the contents and
its incriminating conversations in the intercepted recordings, because they
both had conducted no pre-trial investigation with the Movant[.]
Doc. 2 at 8. Petitioner’s claims are meritless.
To succeed on a claim of ineffective assistance of counsel, a petitioner must show
both that counsel’s performance fell below an objective standard of reasonableness and
that, as a result, he suffered prejudice sufficient to undermine confidence in the outcome
of the proceeding. Strickland v. Washington, 466 U.S. 668 (1984). However, “counsel is
would not be construed as reaching a defendant’s “unremarkable local offense” absent a
clear indication by Congress to the contrary. Id. at 2083.
Petitioner failed to show that Bond would affect the resolution of his claims, nor has
the Court identified a way. Accordingly, the Court has determined that Bond does not affect
how this Court will dispose of Petitioner’s § 2255 motion.
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strongly presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Id. at 690.
“It is not professionally unreasonable for a lawyer to fail to pursue issues which have
little or no chance of success, and a defendant is not prejudiced by counsel’s failure to
pursue nonmeritorious claims or those on which they likely would not have prevailed.”
Georges v. United States, 2012 WL 602659, at *7 (S.D. Fla. Jan. 12, 2012); see also Iron
Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994)(counsel was not ineffective where
the client was not prejudiced by counsel’s failure to file a motion to suppress that would not
have been successful). In courts of the Eleventh Circuit, “a lawyer’s failure to preserve a
meritless issue plainly cannot prejudice a client.” United States v. Winfield, 960 F.2d 970,
974 (11th Cir. 1992).
This Court has previously considered and rejected a motion to suppress based in part
on the alleged Wiretap Act violation giving rise to petitioner’s ineffective assistance claim.
In United States v. Mitchell, 2013 WL 3808152 (M.D. Fla. July 22, 2013), the Court
addressed the defendant’s claim that jailhouse recordings of calls to his attorney were made
in violation of the Federal Wiretapping Act and the Fourth Amendment, and explained that
[t]he Wiretap Act “forbids the willful interception of wire communications,
including telephone conversations, without prior judicial authorization.” United
States v. Noriega, 764 F.Supp. 1480, 1490 (S.D.Fla. 1991). Notably, the
statute provides that “[w]henever any wire or oral communication has been
intercepted, no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial, hearing, or other
proceeding before any court . . . if the disclosure of that information would be
in violation of this chapter.” See 18 U.S.C. § 2515. However, the statute
includes an exception which allows for interception where “one of the parties
to the communication has given prior consent to such interception.” 18 U.S.C.
§ 2511(2)(c).
4
Mitchell, 2013 WL 3808152, at *10. The Court determined that since the defendant was
warned prior to every call he made that inmate calls were recorded, and since he was also
advised of that policy in the inmate handbook, he consented to the recording and there was
no violation:
Defendant initiated calls to Newby and discussed his personal affairs with her,
despite the fact every call he initiated started with an automated warning that
“all inmate telephone calls are recorded.” This conduct demonstrates
Defendant’s consent to being recorded, and therefore, the recording of
Defendant’s phone calls to Newby did not violate the Fourth Amendment or
the Wiretap Act.
Id. at *11 (citation omitted).
This Court has also previously rejected a claim of ineffective assistance, raised in a
§ 2255 motion, based on an attorney’s failure to move to suppress a phone call made by
the petitioner while he was being held at the Duval County Pre-Trial Detention Facility.
Harris v. United States, 2012 WL 1901568 (M.D. Fla. May 25, 2012). Acknowledging that
“Title III prohibits any person from using ‘electronic, mechanical, or other device to intercept
any oral communication[,]’” the Court noted “[h]owever, 18 U.S.C. § 2510(5)(a)(ii) expressly
excludes recording equipment that is used ‘by an investigative or law enforcement officer
in the ordinary course of his duties.’” Id. at *2. The Court found that the law enforcement
exception applied because “Petitioner made the phone calls from the Duval County Pre-Trial
Detention Facility, which has a policy of recording all inmate phone-calls (after advising the
inmate that the call would be recorded). Because counsel thus had no legal basis to object
to the admission of the recording, Petitioner’s ineffective assistance claim is without merit.”
Id. (citation omitted). Further, to the extent that the petitioner in Harris claimed that the
violation of the Wiretap Act resulted from the disclosure of recordings without prior judicial
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authorization rather than the act of recording itself, the Court explained that “[b]ecause there
was no need for judicial approval to initially intercept the phone calls of the Petitioner
pursuant to the law enforcement exception, § 2517(5) would not apply.” Id. n.4.
Harris sought a Certificate of Appealability (COA) from the Eleventh Circuit based in
part on the district court’s denial of the ineffective assistance claim raised in his § 2255
motion. The Eleventh Circuit denied the COA, explaining
Harris has not demonstrated that counsel was ineffective for failing to
challenge, under Title III, the admission of a phone call that was recorded at
the pretrial detention facility where he was being held because the interception
of the phone call was not unlawful under Title III. The recordings at the
detention facility were made by law enforcement in the ordinary course of their
duties, and Harris implicitly consented to the interception. See 18 U.S.C. §§
2510(5)(a)(ii), 2511(2)(c).
Harris v. United States, No. 12-13567-A (11th Cir. Dec. 10, 2012)(emphasis added); Doc.
10-2 at 2. Both grounds cited by the Eleventh Circuit in Harris to reject Harris’s petition for
a COA based upon the alleged ineffective assistance of counsel are also applicable here.
Petitioner does not allege that he did not receive notice his calls would be recorded
or claim that he was otherwise unaware his calls were being recorded. Petitioner even
provided as “Exhibit B” to his Memorandum in Support of 28 U.S.C. § 2255 Motion (Doc. 22) excerpts of various jailhouse calls revealing that he received the following warning prior
to placing a call: “All inmate telephone calls are recorded.” Doc. 2-2 at 4. Petitioner therefore
had notice that his calls were being recorded and, like the defendants in Mitchell and Harris,
chose to make phone calls anyway. Petitioner Thompson’s continued use of the jail phone
despite the warning constitutes his consent, and therefore no prior judicial authorization for
the recording or disclosure was necessary. Moreover, the detention facility that recorded the
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calls, the Duval County Pre-Trial Detention Facility, see doc. 2 at 3, is the same facility that
recorded the calls at issue in the Harris case, the facility whose policy and practice of
recording calls were explicitly found to fall within the law enforcement exception and which
led this Court to determine that “§ 2517(5) would not apply” to its recordings of inmate calls.
Harris, 2012 WL 1901568, at *2 n.4.
Thus, there was no violation of the Federal Wiretap Act by recording, disclosing, or
presenting at trial petitioner’s jailhouse calls. A motion to suppress the calls filed on that
basis would have been denied,3 and counsels’ failure to file a motion that was unlikely to
succeed did not render their performance constitutionally deficient or cause Petitioner
Thompson to suffer outcome-determinative prejudice.
Accordingly, it is hereby
ORDERED:
1. Petitioner Dwayne Eric Thompson’s § 2255 Motion to Vacate, Set Aside, or
Correct Sentence (Doc. 1) is DENIED.
2. Petitioner’s Motion for Leave to File Supplemental Pleading (Doc. 12) and Motion
to Supplement 28 U.S.C. § 2255 (Doc. 13) are GRANTED only to the extent that the Court
has considered the motions and determined they do not affect the resolution of petitioner’s
§ 2255 motion. In all other respects, and insofar as they seek a stay of this Court’s review
of petitioner’s § 2255 motion to await the Supreme Court’s decision in Bond, the motions
are DENIED AS MOOT.
3
The Eleventh Circuit expressly considered the jailhouse recordings in this case when
reviewing petitioner’s sufficiency of the evidence challenge on direct appeal. See doc. 10-1
at 3.
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3. The Clerk is directed to close the file.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal
a district court’s denial of his motion. 28 U.S.C. § 2253(c)(l). Rather, a district court must
first issue a certificate of appealability (COA). Id. “A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. at §
2253(c)(2). To make such a showing, Petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)).
Petitioner has not made the requisite showing in these
circumstances. Because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 25th day of August 2014.
ab.
Copies:
8
Counsel of Record
pro se party
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