Thomas v. USA
OPINION AND ORDER DENYING Motion To Vacate under 28:2255 ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 9/15/2014. (kds)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBERT J. THOMAS,
UNITED STATES OF AMERICA,
CAUSE NO. 3:12-CV-555 RM
(ARISING OUT OF 3:09-CR-134 RM)
OPINION and ORDER
When Robert J. Thomas walked into court on March 10, 2010, he had an
attorney he had hired, a plea agreement, and a trial date six days away. He
walked out of the courtroom with his attorney and his trial date. As the change
of plea dialogue neared its end, the court asked Mr. Thomas, “Do you still want
to plead guilty, sir?” Mr. Thomas responded: “I really don’t want to be plead
guilty, to be honest with you. I don’t feel like all - - I don’t feel like I can be
proven beyond a reasonable doubt by all those essentials or whatever you
When Mr. Thomas walked into court for trial six days later, it turned out
that he had more lawyers, and a firmer trial date, than he thought he had. Mr.
Thomas presented a letter to attorney Timothy P. McLaughlin, who had
represented Mr. Thomas since the previous October 2, discharging Mr.
McLaughlin as his attorney. Mr. Thomas’s family brought attorney Richard M.
Adams, a Birmingham, Alabama attorney whom the family had hired to
represent Mr. Thomas. But Mr. Adams would need time to prepare for trial, so
Mr. McLaughlin moved for a 60-day continuance when he moved to withdraw
his appearance as counsel for Mr. Thomas. The court analyzed the seven-factor
test laid out for eve (or morn) of trial continuance motions in United States v.
Miller, 327 F.3d 598, 601 (7th Cir. 2003), and denied the motion for
After a recess to allow Mr. Thomas to discuss with his myriad counsel
how to proceed, Mr. McLaughlin said he would remain as Mr. Adams’s cocounsel or second chair (implicitly withdrawing the motion to withdraw he
made less than an hour before), but asked for a recess until the next morning
to allow the attorneys to work out how they would proceed. The court granted
Trial resumed the next day. After three days of evidence, the jury
disagreed with Mr. Thomas’s earlier evaluation of the government’s ability to
prove its case beyond a reasonable doubt. The jury found Mr. Thomas guilty on
all five counts: two counts of possession of marijuana with intent to distribute,
21 U.S.C. § 841(a)(1), one count of possession of a firearm while a user of a
controlled substance, 18 U.S.C. § 922(g)(3), one count of possession of a
firearm after conviction for a felony, 18 U.S.C. § 922(g)(1), and one count of
possessing a firearm in furtherance of a drug trafficking crime. 18 U.S.C. §
The court eventually sentenced Mr. Thomas to an aggregate sentence of
240 months’ imprisonment, consisting of 180 months on Count 1 (with
concurrent 51-month sentences on each of Counts 2-4) to be followed by 60
months on Count 5. An eight-year supervised release term was to follow Mr.
Thomas’s release from custody.
Mr. Thomas appealed, and attorney Lu Han of Chicago agreed to
represent him on the appeal. The only appellate issue Mr. Thomas presented
was the claim that his conviction on Count 3 — possession of a firearm while a
user of illegal controlled substances — ran afoul of the Second Amendment as
read in District of Columbia v. Heller, 554 U.S. 570, 628-629 (2008). The court
of appeals rejected that argument, but the government pointed out that Mr.
Thomas had been impermissibly convicted of violating two sections of the same
law with the same conduct. Because user-in-possession and felon-inpossession both are criminalized by 18 U.S.C. § 922(g), the same conduct can’t
constitute two separate crimes. The court of appeals remanded the case “with
instructions to VACATE the sentence on one of the firearm possession counts
and merge the two convictions,” and affirmed the conviction in all other
respects. United States v. Thomas, No. 10-2996, 426 F. App’x 459, 461 (7th
Cir. 2011) (emphasis in original).
Upon receiving the mandate from the court of appeals, this court vacated
the conviction and sentence on Count 4, the felon-in-possession count. No
hearing was held because the court of appeals’ instruction was very clear and
the amendment to the judgment didn’t affect the sentence because the 51month sentence on Count 4 had been concurrent with the 180-month sentence
on Count 1. Mr. Thomas ventured an appeal from that ruling, but the court of
appeals dismissed the appeal for untimeliness.
This brings us to the matter now before the court: Mr. Thomas’s petition
under 28 U.S.C. § 2255, in which he raises nine claims (plus a later tenth) of
ineffective assistance of counsel or prosecutorial misconduct. In each of the
claims, Mr. Thomas either misunderstands the law or remembers the events in
this court incorrectly.
The court addresses the claims in the order in which the errors are
alleged to have been committed. To prove ineffective assistance of counsel, a
petitioner must persuade the court that (1) his lawyer made errors, and the
errors were so serious that the lawyer can’t be said to have been providing the
petitioner with the counsel the Constitution guarantees to everyone, and (2) as
a result, the petitioner’s defense was prejudiced to the point he was deprived of
a trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687
(1984). This is no small task. See Yu Tian Li v. United States, 648 F.3d 524,
527-528 (7th Cir. 2011) (“To reflect the wide range of competent legal strategies
and to avoid the pitfalls of review in hindsight, our review of an attorney’s
performance is highly deferential and reflects a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
Two of Mr. Thomas’s claims posit that his change of plea fizzled out
because of his attorney — more particularly, his first attorney, Mr. McLaughlin.
Mr. Thomas says Mr. McLaughlin fumbled the ball at two points: first, that
when discussing the plea offer with Mr. Thomas, Mr. McLaughlin assured him
that the federal sentence would run concurrently with his state sentence, and
that was the only reason Mr. Thomas agreed to plead guilty; and second, after
Mr. Thomas signed the plea agreement, Mr. McLaughlin changed the plea
agreement so the state and federal sentences would run consecutively. This
claim falls short at the second part of the two-part test for ineffective assistance
of counsel: Mr. Thomas can’t show any prejudice from Mr. McLaughlin’s
alleged actions with respect to the plea agreement.
The plea agreement that was filed with the court contained Mr. Thomas’s
agreement that his federal sentence would be consecutive to his state sentence,
and Mr. Thomas told the court, while under oath, that he had read the plea
agreement before signing it. The court asked the attorneys to outline the terms
of the plea agreement as they understood it, and the prosecutor said Mr.
Thomas had agreed to admit that he violated the conditions of his state home
detention sentence and serve the resulting sentence consecutively to the
federal sentence; Mr. Thomas told the court that’s how he understood things,
too. The court then went through various terms of the plea agreement with Mr.
Thomas, including the provision that both sides agreed the federal sentence
would be consecutive to the state sentence; when the court asked if that was
correct, Mr. Thomas responded, “Yeah, I understand. Yeah. Now, I do, yes.”
At the beginning of the change of plea hearing, the court told Mr. Thomas
that he was free to ask for time to confer with his attorney before answering
any question. Mr. Thomas made one such request during the hearing when the
court erroneously described the handgun as a nine millimeter; after Mr.
Thomas and Mr. McLaughlin conferred, Mr. McLaughlin said it was a .40
caliber handgun, not a nine millimeter. Mr. Thomas never asked to speak with
Mr. McLaughlin about the consecutive sentencing provision during the court
Guilty plea proceedings are solemn events, and courts can accept as true
what the defendant tells the court during those proceedings. United States v.
Gonzalez, ___ F.3d ___, ___, 2014 WL 4251764, at *6 (7th Cir. Aug. 29, 2014).
Mr. Thomas twice told the court directly that he understood the consecutive
sentencing provision and indirectly told the court a third time when he said he
had read the plea agreement before he signed it. So even assuming that Mr.
Thomas was hoodwinked by some sort of bait-and-switch that a constitutionquality lawyer should have protected him from, Mr. Thomas knew by the time
of the change of plea hearing that his plea agreement called for consecutive
sentencing. Mr. Thomas wasn’t prejudiced by whatever Mr. McLaughlin did or
should have done before that.
In addition, Mr. Thomas withdrew his guilty plea during the change of
plea hearing. The court never accepted the guilty plea. Mr. Thomas’s conviction
and sentence flowed from a jury verdict, not a guilty plea.
Mr. Thomas appears to think the court had it in for him after he
withdrew his guilty plea — maybe other courts, too, since he says, “Prejudice
ensued at every subsequent level.” But he points to nothing to support that
belief. Unsupported allegations aren’t enough to show the prejudice required
for a finding of ineffective assistance of counsel. Aleman v. United States, 878
F.2d 1009, 1012 (7th Cir. 2009).
The court doesn’t need to decide whether Mr. McLaughlin did what Mr.
Thomas alleges, or whether such a performance would fall below what the
constitution requires. No matter how those questions might be answered, Mr.
Thomas didn’t suffer any prejudice from it.
That brings the discussion to the trial. Mr. Thomas asserts that the court
erred by not giving his (second) attorney time to prepare for trial, that his trial
attorneys were ineffective because they didn’t investigate the coerced nature of
his father’s statement of facts in his father’s own plea agreement and didn’t use
the difference in those statements to prove Mr. Thomas’s innocence, and that
the government engaged in outrageous misconduct in using the father’s plea
Mr. Thomas was convicted of operating a reasonably sophisticated
marijuana grow operation with his father. His father (also Robert Thomas, so
this order simply refers to him as “the father”) was a co-defendant in the
indictment and was the first to enter into a plea agreement. In that agreement,
the father said he and Mr. Thomas operated the grow operation together (and
the government had considerable evidence to support that). Mr. Thomas
contends that his father was “coerced” into making that statement in the plea
agreement in the sense that the father’s lawyer made him do it.
The government called the father as a witness at Mr. Thomas’s trial. The
father testified that the grow operation was his and his alone. He testified that
his son provided no help in the operation other than to buy about two ounces
of marijuana a week from the father. The government confronted the father
with the statements in the father’s plea agreement, and the father testified that
they weren’t true. The father said he only agreed to those statements because
his lawyer told him Mr. Thomas had said the same things to the authorities
when he was arrested. In final argument, Mr. Adams gave the jury reasons to
believe what the father said on the witness stand, rather than what he (the
father) said in the plea agreement the government had drafted.
Mr. Thomas says that not only was Mr. Adams unprepared to try the
case on the morning of trial, so was Mr. McLaughlin. Mr. Thomas says Mr.
McLaughlin hadn’t investigated the case adequately. But Mr. Thomas goes
beyond that conclusory statement only insofar as it relates to the backstory on
the factual basis for his father’s plea agreement. He identifies no other
witnesses, exhibits, or impeachment material that further investigation would
have uncovered. It’s not enough to say counsel should have looked harder or
longer; a petitioner under § 2255 has to point out what the investigation
missed. Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004).
Mr. Thomas says that if his attorneys had investigated better, they would
have learned that the statements in his father’s plea agreement were “coerced.”
Assuming the trial attorneys didn’t know that, they certainly knew it by the
time Mr. Adams rose to cross-examine the father. During direct examination,
the prosecutor confronted the father with the father’s plea agreement and went
through the facts that were inconsistent with the father’s trial testimony. When
the prosecutor asked the father if he read and signed the plea agreement, the
father answered, “After I talked to Mr. Korpal about that. I was very — I was
very uneasy about Number 6 there because the fact is I talked to Mr. Korpal.
And when I signed that, he goes, ‘Don’t worry about that. That’s what your son
said.’ He goes, ‘don’t worry about that.’” As the court understands Mr.
Thomas’s submissions on this claim, that’s precisely what further investigation
would have shown: that his father signed the plea agreement reluctantly at his
Nor did that testimony come at the end of the direct examination. As the
questioning on the plea agreement and change of plea dialogue continued, the
court took a recess to locate the father’s attorney so the father could consult
with him about exposure to perjury charges. Assuming that neither of Mr.
Thomas’s attorneys knew of the “coercion” by counsel after sitting next to Mr.
Thomas for three days, or sitting in the courtroom with other family members
for three days while knowing the father was listed as a government witness,
they knew well before they questioned the father. Mr. Adams opened his crossexamination by asking the father about his long-term marijuana use and its
effects on his memory; toward the end of the cross-examination, Mr. Adams
noted that the government had prepared the plea agreement.
Mr. Thomas doesn’t suggest what his attorneys could have done better,
and the court can’t think of anything. The father made the previous
statements; the attorneys knew that and couldn’t change it. While the
government often can’t use statements government agents “coerced” out of the
declarant, a defense attorney is independent of the government. What goes on
between the defense attorney and his client (the father, for purposes of the
advice given or “coercion” applied) is secret unless the client reveals it. Because
of a defense counsel’s independence, defense counsel’s “coercion” almost never
warrants suppression of the government’s evidence. So, even if Mr. Thomas’s
attorneys didn’t know the story until the father told it on direct examination,
they couldn’t have moved to suppress the prior statements had they known
The father’s pretrial statements to investigators and plea agreement
(which actually were consistent with what Mr. Thomas had told the
investigators at the time of his arrest, by the way) put Mr. Thomas’s defense in
a tough position. His lawyers couldn’t make the earlier statements disappear or
make them inadmissible at trial. The best they could do was to show the jury
why it should give more weight to what the father said at trial than to what he
said before — which is what Mr. Adams (and the father) tried to do.
There was nothing improper, much less anything egregious, about the
prosecutor’s use of the father’s statement. Mr. Thomas is right that the
government can’t knowingly present false testimony, United States v. Curescu,
674 F.3d 735, 739 (7th Cir. 2012), but Mr. Thomas has given the court no
reason to think the government knew the father’s prior statements were false.
All of the prior statements were consistent with what Mr. Thomas himself had
told authorities, all were consistent with the physical evidence, and the father
had made or confirmed most of the statements while under oath at his own
change of plea proceeding.
Mr. Thomas isn’t entitled to relief on any of the claims regarding his
The jury returned a verdict of guilty. Mr. Thomas contends that the
evidence was insufficient to support the § 924(c) count because the evidence
didn’t establish that he possessed a firearm in furtherance of interstate
commerce. He is wrong.
Mr. Thomas argues that there was no effect on interstate commerce
because the gun was found in his residence, which has no impact on interstate
commerce. The law doesn’t look at where the firearm was found; it looks at the
firearm and asks whether the firearm crossed a state or national boundary
line. Scarborough v. United States, 431 U.S. 563, 577 (1977). That element is
routinely proven in firearms cases tried in federal courts located in Indiana
because no guns are manufactured in Indiana; guns must cross a state or
national boundary line to get here. That might be why Mr. Thomas and his
attorneys stipulated that the firearm had traveled in interstate commerce.
A person has constructive possession of a firearm if he has the ability to
control it. United States v. Reed, 744 F.3d 519, 526 (7th Cir. 2014); United
States v. Lloyd, 71 F.3d 1256, 1266-1267 (7th Cir. 1995). Mr. Thomas had a
loaded semiautomatic handgun under the bed in the room in which he lived
and slept, in the home where he kept marijuana for sale and cash proceeds
from those sales. He told police that his fingerprints would be on the gun
because he had handled it and that either he or his girlfriend had bought it.
That’s more than enough evidence of constructive possession to support the
Mr. Thomas raised still another issue in a supplemental filing just before
the government’s brief was filed. He argues that his sentence was illegal under
Apprendi v. New Jersey, 530 U.S. 466 (2000), because a prior conviction for a
felony drug crime triggered a mandatory 15-year minimum sentence on Count
1. 21 U.S.C. §§ 841(b)(1)(B) and 851. Mr. Thomas relies on Alleyne v. United
States, 133 S. Ct. 2151 (2013), in which the Supreme Court held the facts that
increase or trigger a minimum sentence must, if denied by the defendant, be
found by a jury rather than a judge. Mr. Thomas would be right if the line of
cases running from Apprendi to Alleyne applies to sentencing increases caused
by prior criminal convictions. But that’s not the law. If a maximum sentence or
a minimum sentence is increased because of the extent or nature of the
defendant’s criminal history, the fact of the prior conviction needn’t be proven
to a jury. United States v. Cheek, 740 F.3d 440, 453 (7th Cir. 2014). The law
doesn’t support this claim for relief.
An appeal followed Mr. Thomas’s conviction. Attorneys McLaughlin and
Adams withdrew their appearances, and the court of appeals appointed
Chicago attorney Lu Han to represent Mr. Thomas. As noted at the outset, the
only issue Ms. Han raised on appeal was whether the Second Amendment
allows a conviction for possessing a firearm as a regular user of controlled
substances. The court of appeals ruled for the government on that issue.
Mr. Thomas contends Ms. Han provided ineffective assistance because
she didn’t raise any of the issues Mr. Thomas raises in his § 2255 petition. The
court of appeals has told appellate lawyers to choose issues carefully rather
than relying on a barrage of issues; a large number of issues implies that
counsel doesn’t think any of them are strong enough to prevail on their own.
Dynegy Marketing and Trade v. Multitut Corp., 648 F.3d 506, 513 (7th Cir.
2011). Given that warning, it’s doubtful that Ms. Han can be said to have
rendered substandard assistance of counsel. In any event, Mr. Thomas wasn’t
prejudiced by the absence of his extra issues from the appellate brief because
this court’s consideration of his § 2255 petition shows that none of those extra
issues have any merit.
Mr. Thomas’s last two claims relate to the events that occurred after the
court of appeals affirmed the conviction and ordered this court to vacate one of
the two convictions under 18 U.S.C. § 922(g). As was noted earlier, this court
complied with that order without a hearing. Mr. Thomas argues that this court
erred by not receiving evidence on Mr. Thomas’s post-sentence rehabilitation,
see Pepper v. United States, 131 S. Ct. 1229, 1236 (2011) (court can consider
evidence of post-sentence rehabilitation at resentencing), and Ms. Han provided
constitutionally deficient assistance when she failed to appeal the new
judgment on that ground.
Mr. Thomas misunderstands what the court of appeals ordered and what
this court did. He believes what happened after the court of appeals ruled was
a “resentencing,” at which he was entitled to try to persuade the court to do
more than it did. But the court of appeals didn’t order a resentencing, and this
court didn’t conduct one. This is what the court of appeals said: “For the
foregoing reasons, we REMAND this case to the district court with instructions
to VACATE the sentence on one of the firearm possession counts and merge
the two convictions. In all other respects, the judgment of the district court is
AFFIRMED.” United States v. Thomas, No. 10-2996, 426 F. App’x 459, 461
(7th Cir. 2011) (emphasis in original). The only discretion the court of appeals
left to this court was which of the two § 922(g) convictions (along with its
concurrent sentence) to vacate. The court of appeals provided this court with
no authority to increase or decrease — whether for post-sentence rehabilitation
or any other reason — the original 240-month sentence.
Because this wasn’t a resentencing, Mr. Thomas had no right to attend
or be heard at a hearing. See FED. R. CRIM. P. 43. And because this wasn’t a
resentencing that Mr. Thomas had a right to attend and be heard, there was no
viable ground for Ms. Han to begin a new appeal or to try to renew the original
appeal. There is no merit to these claims about what happened after the court
of appeals ruled.
For all these reasons, the court DENIES the petition under 28 U.S.C. §
2255 (Doc. No. 129).
ENTERED: September 15, 2014
/s/ Robert L. Miller, Jr.
United States District Court
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