Thomas v. USA

Filing 6

ORDER DISMISSING CASE. Thomas claims are dismissed with prejudice. The Court shall not issue a certificate of appealability.The Clerk is instructed to close the file and enter judgment accordingly.Signed by Chief Judge David R. Herndon on 4/15/14. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMION M. THOMAS,
Petitioner,
v.

Civil Case No. 13-cv-689-DRH
Criminal Case No. 05-cr-30114-DRH

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM & ORDER
HERNDON, Chief Judge:

I.

Introduction

This matter is before the Court on petitioner Damion Thomas’ motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). For
the reasons stated below, Thomas’ motion is DENIED. 1
On September 9, 2005, Thomas pled guilty to one count of felon in
possession of a firearm. See 18 U.S.C. § 922(g)(1). This Court sentenced Thomas
on January 18, 2006 (Cr. Doc. 22). Pursuant to 18 U.S.C. § 924(e), the Court
sentenced Thomas as an “armed career criminal” to a mandatory minimum
sentence of fifteen years of incarceration (Cr. Doc. 25, amended at Doc. 29).

1

Having closely examined the record before it, the Court concludes an evidentiary hearing is not
warranted. See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (“for a hearing to
be granted, the petition must be accompanied by a detailed and specific affidavit which shows that
the petitioner [has] actual proof of the allegations going beyond mere unsupported assertions”);
Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir. 2000) (holding a hearing not required
where record conclusively demonstrates that a defendant is entitled to no relief on § 2255 motion);
see also Rules 4(b) and 8(a) of Rules Governing Section 2255 Proceedings.
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On direct appeal, Thomas challenged the constitutionality of his sentence,
arguing that it was based on recidivism facts not found by a jury beyond a
reasonable doubt. Thomas acknowledged that his contention was contrary to
controlling precedent, see e.g. Harris v. United States, 536 U.S. 545, 568 (2002)
(constitutionally permissible for a sentencing judge to make findings of fact that
lead to an enhanced mandatory minimum); Almendarez-Torres v. United States,
523 U.S. 224 (1998) (holding that prior convictions need not be charged in the
indictment or proved beyond a reasonable doubt), and raised the issue, “strictly
to preserve it for further review” (Cr. Doc. 32, United States v. Thomas, No. 061404 (7th Cir. Mar. 21, 2006)). The Seventh Circuit summarily affirmed this
Court and upheld the sentence (Id.).

On June 19, 2006, the Supreme Court

denied Thomas’ petition for a writ of certiorari. See Thomas v. United States,
547 U.S. 1217, 126 S. Ct. 2906 (June 19, 2006)).
On July 16, 2013, Thomas filed the present motion to vacate, set aside, or
correct his sentence (Doc. 1). He argues that his sentence is unconstitutional in
light of two recent Supreme Court decisions—Descamps v. United States, 133 S.
Ct. 2276 (2013), and Alleyne v. United States, 133 S. Ct. 2151 (2013).
II.

Legal Standard

A prisoner may move to vacate, set aside or correct his sentence if he
claims “the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence,

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or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255 is an extraordinary remedy because it asks the district court
“to reopen the criminal process to a person who has already had an opportunity
for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Accordingly, relief under Section 2255 is “reserved for extraordinary situations,”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v.
Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to
Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481
F.3d 932, 935 (7th Cir. 2007).
Thus, unless a movant demonstrates changed circumstances in fact or law,
he may not raise issues already decided on direct appeal. Olmstead v. United
States, 55 F.3d 316, 319 (7th Cir. 1995).

Further, a petitioner cannot raise

constitutional issues that he could have but did not directly appeal unless he
shows good cause for and actual prejudice from his failure to raise them on
appeal, or unless failure to consider the claim would result in a fundamental
miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998);
Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211
F.3d 429, 433 (7th Cir. 2000). Moreover, a Section 2255 motion cannot pursue
nonconstitutional issues that were not raised on direct appeal regardless of cause
and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The
only way such issues could be heard in the Section 2255 context is if the alleged

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error of law represents “a fundamental defect which inherently results in a
complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185
(1979).
In his reply brief, Thomas raises a claim of ineffective assistance of counsel
(Doc. 5).

Importantly, the Supreme Court has held that the usual procedural

default rule does not generally apply to such claims as, “an ineffective-assistanceof-counsel claim may be brought in a collateral proceeding under § 2255, whether
or not the petitioner could have raised the claim on direct appeal.” Massaro v.
United States, 538 U.S. 500, 504 (2003).
To succeed in an ineffective assistance of counsel claim, a petitioner must
demonstrate (1) his attorney’s performance “fell below an objective standard of
reasonableness,” and (2) “but for counsel’s unprofessional errors the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984). To satisfy the first prong, “the Court must determine whether, in
light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.” Id. at 690.

To satisfy the

second prong, a petitioner must demonstrate to a “reasonable probability” that
without the unprofessional errors, “the result of the proceeding would have been
different.” Id. at 696.

A district court’s analysis begins with a “strong

presumption that the defendant’s attorney rendered adequate representation of
his client.” United States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a
petitioner must overcome a heavy burden to prove that his attorney was

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constitutionally deficient. Shell v. United States, 448 F.3d 951, 955 (7th Cir.
2006).
II.

Analysis

A. The Armed Career Criminal Act
This Court sentenced Thomas to an enhanced term of imprisonment
pursuant to the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e). The
ACCA provides a sentencing enhancement for federal defendants convicted under
18 U.S.C. § 922(g) (unlawful possession of a firearm) who already have three
prior convictions for “violent felon[ies],” explicitly including “burglary.” Id. As this
Court found, Thomas’ three predicate felonies included one conviction for
aggravated discharge of a firearm, and two convictions for residential burglary.
Sentencing enhancement under the ACCA increases the mandatory minimum
sentence to fifteen years of incarceration. Id.

Apart from any sentencing

enhancement, Thomas’ conviction for felon in possession of a firearm bears a
maximum penalty of ten years of incarceration. 18 U.S.C. § 922(g).

Thomas’

petition argues that he should be resentenced, without the ACCA enhancement, in
light of the Supreme Court’s decisions in Descamps v. United States and Alleyne
v. United States.
B. Descamps v. United States
Thomas first argues that the application of the ACCA enhancement to his
sentence is unconstitutional in light of Descamps v. United States, 133 S. Ct.

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2276 (2013).2

Decided by the Supreme Court on June 20, 2013, Descamps

addressed the question of what burglary convictions may qualify to implicate the
ACCA sentencing enhancement. 133 S. Ct. at 2282.

The general rule for

classifying burglary convictions under the ACCA was set out by the Supreme
Court in Taylor v. United States, 495 U.S. 575 (1990). Because the text of the
ACCA does not define “burglary,” Taylor held that sentencing courts must
compare the elements of the predicate conviction (whether or not formally labeled
“burglary”) with the elements of “generic burglary.” 495 U.S. at 599-600. “Generic
burglary” is defined as “any crime, regardless of its exact definition or label,
having the basic elements of unlawful or unprivileged entry into, or remaining in,
a building or structure, with intent to commit a crime.” Id. at 599.
Generally, if the statutory elements of the predicate offense are broader
than generic burglary, courts may not refer to any other sources (e.g. indictments
or jury instructions) to determine whether the defendant actually committed all
the elements of generic burglary. Id. at 602. This is known as the “categorical
approach.” Descamps, 133 S. Ct. at 2281. Taylor does allow sentencing courts to
deviate from the categorical approach in certain narrowly defined circumstances.

2

The United States has affirmatively waived any retroactivity defense to Thomas’ claim under
Descamps v. United States. (Doc. 4 at 4 n.1). The Supreme Court has held that the issue of
retroactivity is not jurisdictional, and may be waived. Collins v. Youngblood, 497 U.S. 37, 41
(1990). The United States’ affirmative waiver of this defense removes it from the case. Wood v.
Milyard, 132 S. Ct. 1826, 1833 n.5, 1835 (district court abuses its discretion by considering a
defense that has been affirmatively waived). Therefore, this Court will not inquire into whether,
absent such a waiver, Descamps is retroactively applicable on collateral review. See 28 U.S.C. §
2255(f).
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Where a statute provides multiple alternative definitions of burglary, 3 a
sentencing court is permitted to consult the indictment or jury instructions to
determine whether the definition for which the defendant was actually convicted
contains all the elements of generic burglary. Taylor, 110 S. Ct. at 602. This
limited exception has come to be known as the “modified categorical approach.”
Descamps, 133 S. Ct. at 2281.
The specific question in Descamps was whether a sentencing court may use
the modified categorical approach in the case of an “indivisible” statute. In
Descamps, one of the defendant’s three prior convictions for purposes of ACCA
enhancement was a burglary conviction under California Penal Code Ann. § 459.
The California statute defined burglary as an entry into certain premises “with
intent to commit grand or petit larceny or any felony.” 133 S. Ct. at 2282.
However, unlike the “generic” definition of burglary, the California statute did not
require that the entry be unlawful. 4 Id. And unlike the limited exception allowed
by Taylor, the California statute did not set out alternative definitions of
burglary, with one or more alternatives including all the elements of generic
burglary.

Under the California statute, unlawful entry was never a required

element of the crime.

The Supreme Court held that the modified categorical

approach could not extend to an indivisible statute like California’s without
violating the defendant’s Sixth Amendment rights. Id. at 2288.
3

The Taylor Court provided the hypothetical example of a statute defining burglary as unlawful
entry into either a building or an automobile—the former of which constitutes generic burglary,
but the latter of which does not. 110 S. Ct. at 602.
4
The Supreme Court noted that the California statute would include a broad range of criminal
behavior not normally designated burglary, e.g. shoplifting. 133 S. Ct. at 2282.
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Returning to Thomas’ argument, he maintains that the ACCA enhancement
of his sentence, relying on his Illinois convictions for residential burglary, is
unconstitutional in light of Descamps. This Court disagrees. Thomas’ sentencing
enhancement is simply not analogous to the situation presented in Descamps.
Illinois’ residential burglary statute, unlike the California statute at issue in
Descamps, does not encompass any conduct broader than the elements of generic
burglary. 5

In fact, the language of the Illinois statute closely tracks the exact

definition of generic burglary set out in Taylor. 6 Residential burglary in Illinois
always requires “an unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” 495 U.S. at 599. The district court did
not use the modified categorical approach when it applied the ACCA enhancement
to Thomas’ sentence. It did not need to. The fact that Thomas was convicted of
residential burglary under the Illinois statute is sufficient to establish that he

5

Illinois’ residential burglary statute reads as follows: (70 ILCS 5/19-3)
Sec. §19-3. Residential burglary.
(a) A person commits residential burglary when he or she knowingly and without authority enters
or knowingly and without authority remains within the dwelling place of another, or any part
thereof, with the intent to commit therein a felony or theft. This offense includes the offense of
burglary as defined in Section 19-1.
(a-5) A person commits residential burglary when he or she falsely represents himself or herself,
including but not limited to falsely representing himself or herself to be a representative of any
unit of government or a construction, telecommunications, or utility company, for the purpose of
gaining entry to the dwelling place of another, with the intent to commit therein a felony or theft or
to facilitate the commission therein of a felony or theft by another.
6
The most significant difference between the Illinois statute and the Taylor definition is the
inclusion of subsection (a-5) of the statute, which specifies that an entry gained by means of false
representation will support a conviction for residential burglary. This subsection appears to do
no more than clarify that entry under false pretenses is legally “unprivileged.” Thus, subsection (a5) does not expand Illinois’ definition of residential burglary to include any conduct outside the
Taylor definition of generic burglary. See Taylor, 495 U.S. at 599. At any rate, subsection (a-5)
was not added to the statute until an amendment in 2010. 2010 Ill. Legis. Serv. P.A. 96-1113
(S.B. 3684) (WEST).
All of Thomas’ convictions under the statute occurred before 2006.
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committed all the elements of generic burglary. For these reasons, Thomas’ claim
based on Descamps v. United States is unavailing and will be denied.
C. Alleyne v. United States
Thomas also argues that his sentencing enhancement is unconstitutional in
light of Alleyne v. United States, 133 S. Ct. 2151 (2013). Alleyne held that any
fact that increases mandatory minimum sentences must to be submitted to a jury.
Id. at 2158. Alleyne is an extension of the Supreme Court’s landmark decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court for the
first time recognized a Sixth Amendment requirement that any fact increasing
maximum sentences must to be submitted to a jury, and found beyond a
reasonable doubt.
We note initially that Thomas’ claim based on Alleyne v. United States is
not properly before this Court unless the right recognized in Alleyne is
retroactively applicable to cases on collateral review.

Generally, the statute of

limitations for filing a collateral attack pursuant to 28 U.S.C. § 2255 is one year
from the date the petitioner’s conviction becomes final.

Thomas’ conviction

became final on June 19, 2006—the date his petition for certiorari was denied by
the Supreme Court.

The present motion was not filed until July 16, 2013.

However, the statute makes special provision for “[rights that have] been newly
recognized by the Supreme Court and made retroactively applicable to cases on
collateral review.” 28 U.S.C. § 2255(f)(3). In such cases, petitioners have one year
from the date the right was first recognized by the Supreme Court to file collateral

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attack. Id.

Thomas filed his petition within one year of the date Alleyne was

decided. Thus, we must address the question of whether the rule in Alleyne is
retroactively applicable to cases on collateral review. 7
The Seventh Circuit has recognized that “Alleyne establishe[d] a new rule of
constitutional law.” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
According to the Supreme Court, “[a] new rule applies retroactively in a collateral
proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed rule of
criminal procedure’ implicating the fundamental fairness and accuracy of the
criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v.
Lane, 489 U.S. 288, 311 (1989).
Thomas argues that Alleyne is retroactive because it announces a
substantive, not procedural, rule. (Doc. 1 at 5). We disagree. In Curtis v. United
States, 294 F.3d 841 (7th Cir. 2002), the Seventh Circuit held that Apprendi was
not retroactive. Id. at 842. In reaching this conclusion, the court found that the
rule in Apprendi was not substantive: “Apprendi is about nothing but procedure—
who decides a given question (judge versus jury) and under what standard
(preponderance versus reasonable doubt).” Id. at 843.

As an extension of

Apprendi, the identical reasoning applies to Alleyne.

Whereas Apprendi

addressed facts that increase statutory maximum penalties, Alleyne addresses
7

The Seventh Circuit has explicitly held that a successive collateral attack based on Alleyne may
not be filed until (and unless) the Supreme Court declares Alleyne to be retroactive. Simpson v.
United States, 721 F.3d 875 (7th Cir. 2013). Simpson only addressed the issue of a successive
collateral attack under § 2255(h)(2), leaving open the question of initial collateral attack under §
2255(f)(3).
On initial collateral attack, district courts are free to make the retroactivity
determination. Ashley v. United States, 266 F.3d 671 (7th Cir. 2001) (“A district judge may
determine whether a novel decision of the Supreme Court applies retroactively, and thus whether
a collateral attack is timely under…§ 2255.”).
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facts that increase mandatory minimums. But both cases are about who decides
a given question (judge versus jury) and under what standard (preponderance
versus reasonable doubt). Thus, like the rule in Apprendi, the rule announced in
Alleyne is entirely procedural.
Nor do we find that the rule of Alleyne is a watershed rule of criminal
procedure. To qualify as a watershed rule of criminal procedure, a new rule must
meet two requirements. Whorton, 549 U.S. at 418.

“First, the rule must be

necessary to prevent an impermissibly large risk of inaccurate conviction.
Second, the rule must alter our understanding of the bedrock procedural
elements essential to the fairness of a proceeding.” Id. We note initially that the
Supreme Court has never held a new constitutional rule to be a watershed rule of
criminal procedure. Id. at 417-18. In Curtis, the Seventh Circuit held that the
Apprendi rule is not a watershed rule of criminal procedure because “findings by
federal

district

judges

are

adequate

punishment.” 494 F.3d at 843.

to

make

reliable

decisions

about

By the same rationale, we find that the rule

established by Alleyne is not a watershed rule of criminal procedure.
Because the rule of Alleyne is neither substantive nor a watershed rule of
criminal procedure, it is does not apply retroactively to a collateral proceeding.
Therefore, Thomas’ claim based on Alleyne is not properly before this Court
because the statute of limitations expired one year from the date his conviction
became final. 28 U.S.C. § 2255(f).

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However, even if we were to reach the merits of Thomas’ Alleyne claim, he
would not be entitled to relief.

Alleyne held that any fact that increases

mandatory minimum sentences must be pled in the indictment and submitted to
a jury. 133 S. Ct. at 2158. The ACCA enhancement did increase the mandatory
minimum sentence to which Thomas was subject.

Apart from any sentencing

enhancement, Thomas’ conviction for felon in possession of a firearm bore a
maximum penalty of ten years’ imprisonment.

After application of the ACCA

enhancement, Thomas’ conviction carried a mandatory minimum sentence of
fifteen years of imprisonment. The government does not contend that the fact of
Thomas’ prior convictions was pled in the indictment or submitted to the jury.
Instead, the government argues that Almendarez-Torres v. United States, 523
U.S. 224 (1998), creates an exception to the rule of Apprendi and Alleyne for
sentencing enhancements based on prior convictions. Almendarez-Torres held
that the Sixth Amendment does not require the fact of prior convictions to be pled
in the indictment or submitted to the jury. 523 U.S. at 224.
Thomas argues that Almendarez-Torres has been overruled by Alleyne.
(Doc. 1 at 4). We disagree. This Court is not free to infer that a controlling
Supreme Court precedent has been overruled, solely on the basis that subsequent
decisions of the Court cast doubt on its reasoning.

“[I]f a precedent of [the

Supreme] Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, [lower courts] should follow the case
which directly controls, leaving to [the Supreme] Court the prerogative of

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overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997); cf.
United States v. Eberhart, 388 F.3d 1043, 1049 (7th Cir. 2004). In other words,
unless the Supreme Court has expressly overruled Almendarez-Torres, we must
follow that decision in this case.
Not only has the Supreme Court not expressly overruled AlmendarezTorres, it has repeatedly made clear that the case remains good law.
Almendarez-Torres predates both Apprendi and Alleyne. In Apprendi, the Court
explicitly declined to overrule Almendarez-Torres, choosing instead to “treat the
case as a narrow exception to the general rule.” Apprendi, 530 U.S. at 489-90. In
Alleyne,

the

Court

again

recognized

Almendarez-Torres

as

a

“narrow

exception…for the fact of a prior conviction” and again made clear that it was not
overturning the decision. Alleyne, 133 S. Ct. at 2160 n.1; see also United States
v. Boyce, 13-1087, 2014 WL 552808 (7th Cir. Feb. 13, 2014) (“Until the Supreme
Court tells us otherwise, we will continue to apply Almendarez–Torres.”). In sum,
Thomas is mistaken when he asserts that Almendarez-Torres has been overruled.
And because Almendarez-Torres remains good law, the sentencing court was not
required to submit the fact of Thomas’ convictions to a jury.

Accordingly,

Thomas’ claim based on United States v. Alleyne will also be denied.
D. Ineffective Assistance of Counsel
Finally, Thomas raises a claim of ineffective assistance of counsel in his
reply brief, on the grounds that his attorney did “not advis[e] him of the elements
to convict for the ACCA offense.” (Doc. 5 at 1). Thomas’ ineffective assistance of

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counsel claim is barred by the statute of limitations and is not properly before
this Court. Collateral attack pursuant to 28 U.S.C. § 2255 must be filed within
one year of when the conviction becomes final.

As discussed above, Thomas’

conviction became final on June 19, 2006. He did not file the present petition
until July 13, 2013—more than six years after the statute of limitations had
expired.
Even if we were to reach Thomas’ ineffective assistance claim, it would fail
on the merits. To prevail on his claim of ineffective assistance, Thomas must
show that his counsel’s performance “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984).
Strickland further requires Thomas to demonstrate that “but for” his counsel’s
allegedly deficient performance, there is a reasonable probability that the result of
his sentencing would have been different. Id. at 694. That standard is not close to
being met here.
Although Thomas’ reply brief makes the aforementioned oblique reference
to “the elements to convict for the ACCA offense,” the subsequent paragraphs
make clear that his ineffective assistance claim amounts to no more than a
renewal of his Descamps and Alleyne claims. (Doc. 5 at 2-3). Strickland requires
that an attorney’s performance be measured according to “counsel’s perspective at
the time” and without the “distorting effects of hindsight.” 466 U.S. at 689. By
this measurement, it was obviously not unreasonable for Thomas’ counsel to not
raise claims based on Descamps and Alleyne, because those cases would not be

Page 14 of 16

decided for another eight years. And even if those claims somehow could have
been raised, there is no reasonable probability that Thomas’ sentencing would
have come out differently. This is so because, for all the reasons discussed above,
neither Descamps nor Alleyne is applicable to Thomas’ case.
III.
Under Rule 11(a) of

THE

Certificate of Appealability
RULES GOVERNING SECTION 2255 PROCEEDINGS, the

“district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” A habeas petitioner does not have an
absolute right to appeal a district court’s denial of his habeas petition; he may
appeal only those issues for which a certificate of appealability has been granted.
See Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). For a court
to issue a certificate of appealability, a petitioner must make a “substantial
showing of the denial of a constitutional right,” meaning, “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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); 28 U.S.C. §
2253(c)(2).
For the reasons stated above, Thomas’ claims do not warrant a certificate
of appealability, as reasonable jurists would agree that the petition should not
receive encouragement to proceed further. Therefore, the Court DENIES Thomas
a certificate of appealability.

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IV.

Conclusion

For the reasons stated above, Thomas’ motion under 28 U.S.C. § 2255 to
vacate, set aside or correct sentence, is DENIED (Doc. 1). Thomas’ claims are
dismissed with prejudice. The Court shall not issue a certificate of appealability.
The Clerk is instructed to close the file and enter judgment accordingly.
IT IS SO ORDERED.
Signed this 15th day of April, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.04.15
12:46:04 -05'00'
Chief Judge
United States District Judge

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