THOMAS v. CARAWAY
Filing
14
Entry Denying Habeas Petition and Directing Entry of Final Judgment - Petitioner John Western Thomas is confined at the Terre Haute FCI. He brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the validi ty of his 2005 conviction of a drug offense entered in the United States District Court for the Western District of Michigan. Thomas' habeas petition is dismissed with prejudice. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to petitioner via US Mail. Signed by Judge William T. Lawrence on 3/24/2014.(RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JOHN WESTERN THOMAS,
Petitioner,
v.
J. F. CARAWAY,
Respondent.
)
)
)
) Case No. 2:12-cv-0329-WTL-WGH
)
)
)
Entry Denying Habeas Petition and Directing Entry of Final Judgment
Petitioner John Western Thomas is confined at the Terre Haute FCI. He brings this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the validity of his
2005 conviction of a drug offense entered in the United States District Court for the Western
District of Michigan.
Thomas is serving a term of life imprisonment imposed after a jury found him guilty of a
charge of possession with intent to distribute 100 grams or more of cocaine base, in violation of
21 U.S.C. § 841, and acquitted him on a charge of being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g). United States v. Thomas, 1:05-cr-0053-RHB-1 (W.D. Mich.
Feb. 23, 2006). Prior to Thomas’ trial on these charges, the government filed a 21 U.S.C. § 851
information alleging that Thomas had two prior felony drug convictions. The term of life
imprisonment was mandated by Thomas’ two prior felony drug convictions and the § 851
information. On direct appeal, Thomas’ conviction and sentence were affirmed. United States v.
Thomas, No. 06-1288 (6th Cir. Feb. 8, 2007) (unpublished).
In March of 2008, Thomas filed a 28 U.S.C. § 2255 motion in which he alleged that 1)
the district court lacked federal jurisdiction; 2) the district court improperly dismissed his motion
to suppress without conducting a hearing under Franks v. Delaware, 438 U.S. 154 (1978); 3) he
was subjected to selective prosecution; 4) the prosecutor engaged in misconduct; 5) the district
court erred in failing to advise the jury that the statements of attorneys are not evidence; 6) the
district court erred in concluding that Thomas’s drug possession offense qualified as a predicate
felony under 18 U.S.C. § 924(c) in the absence of proper notice under 21 U.S.C. § 851(a); and 7)
counsel rendered ineffective assistance by not objecting to the above errors. The district court
rejected the first six claims as procedurally defaulted and the ineffective-assistance-of-counsel
claim as lacking merit. Thomas v. United States, 1:08-cv-0307-RHB (W.D. Mich. June 7, 2010).
The district court also denied Thomas’ request for a certificate of appealability.
On appeal, the Sixth Circuit found no error and denied Thomas’ request for a certificate
of appealability. Thomas v. United States, No. 10-1793 (6th Cir. May 4, 2011) (unpublished).
The Supreme Court denied Thomas’ petition for a writ of certiorari. Thomas v. United States,
No. 11-7736 (U.S. Jan. 17, 2012).
In his 28 U.S.C. § 2241 petition, Thomas asserts that (1) his former appellate counsel (on
direct review) was ineffective for not arguing error in the district court’s denial of his motion to
suppress and denial of his request for a Franks hearing; (2) his former trial counsel was
ineffective for stipulating to amend the indictment with respect to the amount of drugs alleged in
the charging document; and (3) his former trial counsel was ineffective and acted improperly by
effectively limiting Thomas’ right to cross-examine a witness with respect to stipulations made
regarding whether the substance possessed by Thomas was cocaine base.
The government argues that Thomas’ petition should be dismissed because he has not
shown that his § 2255 remedy was inadequate or ineffective. See 28 U.S.C. § 2255(e) (“savings
clause”). A “federal prisoner should be permitted to seek habeas corpus only if he had no
reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his
conviction or sentence because the law changed after his first 2255 motion.” Hill v. Werlinger,
695 F.3d 644, 648 (7th Cir. 2012) (internal quotation omitted). Thomas argues that he was not
permitted to supplement his attorney’s brief on direct appeal to raise the issues he asserts here
and that those claims were then found to have been procedurally defaulted when raised in his
§ 2255 motion. This circumstance, however, does not fall within the narrow scope of the § 2255
savings clause. “’Inadequate or ineffective’ means that a legal theory that could not have been
presented under § 2255 establishes the petitioner’s actual innocence.” Id; see also Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (describing conditions required to establish
“inadequate or ineffective”). Contrary to Thomas’ contention, he has not made a compelling
showing of his actual innocence. There is no basis on which Thomas should be given another
opportunity to challenge his conviction in this Court.
Accordingly, Thomas’ habeas petition is dismissed with prejudice. Judgment consistent
with this Entry shall now issue.
IT IS SO ORDERED.
_______________________________
Date: 3/24/14
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Distribution:
John Western Thomas, #12276-040, Terre Haute FCC, Inmate Mail/Parcels, P.O. Box 33, Terre
Haute, IN 47808
Electronically registered counsel
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?