Thomas v. United States of America
Filing
19
MEMORANDUM OPINION AND ORDER denying in its entirety 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR11-4074-MWB) filed by Isaiah Earl Thomas. This matter is dismissed in its entirety. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 2/16/16. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ISAIAH EARL THOMAS,
No. C 14-4010-MWB
(No. CR 11-4074-MWB)
Petitioner,
vs.
MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT A
SENTENCE
UNITED STATES OF AMERICA,
Respondent.
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Criminal Proceedings .............................................................. 2
B.
Section 2255 Proceedings ......................................................... 9
II.
LEGAL ANALYSIS ...................................................................... 10
A.
General Standards For § 2255 Relief ......................................... 10
1.
Grounds for § 2255 relief ............................................... 10
2.
Standards for an evidentiary hearing ................................. 13
B.
Thomas’s Claims Of Ineffective Assistance of
Counsel ............................................................................. 14
1.
“Ineffective assistance of counsel” standards ...................... 14
2.
First criminal counsel’s failure to advise Thomas of
the potential for a career offender enhancement ................... 16
a.
Arguments of the parties ....................................... 16
b.
Analysis ............................................................ 18
3.
Second criminal counsel’s failure to challenge the
career offender enhancement .......................................... 22
a.
Arguments of the parties ....................................... 23
b.
Analysis ............................................................ 24
C.
Certificate Of Appealability ..................................................... 29
III.
CONCLUSION ............................................................................ 30
1
This case is before me on petitioner Isaiah Earl Thomas’s February 10, 2014, pro
se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In
Federal Custody (§ 2255 Motion) (Civ. docket no. 1). Thomas seeks relief, on numerous
grounds, from his guilty plea to firearm and drug-trafficking charges and his sentence as
a career offender to 327 months of imprisonment. Thomas’s appointed habeas counsel
has briefed only two of Thomas’s many claims, both alleging ineffective assistance of
counsel concerning Thomas’s career offender enhancement. The respondent denies that
Thomas is entitled to any relief on his claims.
I.
A.
INTRODUCTION
Criminal Proceedings
On June 22, 2011, Thomas was indicted as the sole defendant in a three-count
Indictment. Count 1 of the Indictment charged that, from about January 1, 2010, and
continuing through about February 23, 2011, Thomas conspired to distribute an
unspecified amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(d),
and 846. Count 2 charged that, from January 1, 2010, and continuing through about
February 23, 2011, Thomas knowingly possessed a firearm in furtherance of a drugtrafficking crime, that is, conspiracy to distribute marijuana as charged in Count 1, in
violation of 18 U.S.C. § 924(c)(1)(A). The firearms alleged in this count were a .22
caliber derringer and a .40 caliber pistol. Count 3 charged that, on or about February
23, 2011, Thomas knowingly possessed the same firearms alleged in Count 2 having
previously been convicted of a misdemeanor crime of domestic violence, in violation of
18 U.S.C. §§ 922(g)(9) and 924(a)(2). This count identified two prior convictions for
aggravated misdemeanor domestic abuse assault, in 2006 and 2002, respectively, one
prior conviction for serious misdemeanor domestic abuse assault, in 2001, and a
2
conviction for serious misdemeanor assault in 2000. The Indictment included a forfeiture
allegation as to any firearms or ammunition involved or used in knowing violation of 18
U.S.C. § 922(g)(9). Thomas’s first criminal counsel was appointed to represent him,
and Thomas entered pleas of not guilty to all charges on August 3, 2011.
Prior to trial, which was eventually set to begin on October 3, 2011, the court
scheduled a change-of-plea hearing for September 22, 2011. See Order (Crim. docket
no. 14). In an Affidavit (Civ. docket no. 1-4), attached to his § 2255 Motion, Thomas
avers that his first criminal counsel had advised him that the prosecution had offered him
an open plea (i.e., without a plea agreement), but that his first criminal counsel “never
consulted me/or advised me that I would be facing or being [sic] subjected to a Career
Offender or Armed Criminal enhancement.” In contrast, in an Affidavit (Civ. docket
no. 16-1), attached to the respondent’s Response And Memorandum In Support Of
Government’s Response To Defendant’s Motion Under 28 U.S.C. § 2255, Thomas’s first
criminal counsel avers, as follows:
In meeting with Mr. Thomas, I explained to him my
concerns about the career offender enhancement applying. I
concluded that I did not think it would apply, but that I could
be wrong, and explained to him again the starting Guideline
range if it did apply. We discussed this at length, and I
expressed some trepidation about the matter. I explained the
rationale behind acceptance of responsibility, and suggested
how I would present his case at sentencing. It was still his
desire to plead guilty.
Affidavit Of First Criminal Counsel, unnumbered ¶ 3. Thomas did not subsequently
attempt to refute, by any statement under oath, his first criminal counsel’s statements,
nor request an opportunity to challenge them.
On September 22, 2011, Thomas pleaded guilty to all three counts against him,
before Chief United States Magistrate Judge Paul A. Zoss. See Plea Hearing Minutes
3
(Crim. docket no. 17). The transcript of the plea hearing contains absolutely no reference
to the possibility of a career offender enhancement in the parties’ discussion of Thomas’s
possible sentencing range. See Transcript Of Plea Hearing (Crim. docket no. 30).
Indeed, the prosecutor suggested that Thomas’s likely guidelines range was 84 to 90
months of imprisonment, and Thomas’s first criminal counsel concurred. See id. at
22:21-23:13. Judge Zoss did advise Thomas that his sentence could be higher (or lower),
because the guidelines are advisory, see, e.g., id. at 23:14-26:7, and that his maximum
statutory sentence on Count 2 was life imprisonment. See id. at 16:13-18, 25:19-21.
The prosecutor reiterated “that the defendant is aware that he could face up to life in
prison.” See id. at 17:17-18. The prosecutor also opined,
And one thing I should note here, too, is this is one of
those unusual cases. At least the guidelines will be probably
even less important than they are in the typical advisory
setting. Because his criminal history is – is so long and his
particular instant offense has so many disturbing
characteristics to it, he’s likely going to be either within the
guidelines subject to several upward departures or perhaps
even subject to upward variances that the guidelines are going
to very quickly be overcome by the other sentencing factors.
Plea Hearing Transcript at 22:4-13. Thomas informed Judge Zoss that he understood
how sentencing could go in his case. See id. at 26:6-8. I accepted Thomas’s guilty plea
on September 22, 2011, after the parties waived the time for objections to Judge Zoss’s
Report And Recommendation that I accept Thomas’s plea. See Order (Crim. docket no.
21).
Approximately four months later, on January 30, 2012, Thomas filed a pro se
request for new counsel. See Motion For New Counsel (Crim. docket no. 25). Thomas
stated that he believed that his first criminal counsel had “misguided” him into believing
that it was in his best interest to plead guilty to the charges. Thomas cited as examples
4
the fact that he possessed far less than the quantity of marijuana that would trigger a
mandatory minimum sentence and the fact that he denied ever possessing a firearm in
furtherance of any drug crimes. He contends that, nevertheless, his first criminal counsel
told him that, if he did not plead guilty immediately, he would lose three points for
acceptance of responsibility and face a much greater sentence. See id. After an ex parte
hearing, Judge Zoss granted Thomas’s request for a new attorney, see Order (Crim.
docket no. 28), and Thomas’s second criminal counsel was appointed to represent him.
On March 5, 2012, Thomas, through his second criminal counsel, requested leave
to file under seal a motion to withdraw his guilty plea, and on March 7, 2012, with leave
of court, he filed that Motion To Withdraw Guilty Plea (Crim. docket no. 36). Thomas’s
grounds for seeking to withdraw his guilty plea were that he did not fully appreciate the
nature of the conspiracy charge and the consequences of his guilty plea and that he was
“grossly misinformed” as to the potential application of the guidelines and his potential
sentence. Id. Not coincidentally, on March 6, 2012, the probation officer had filed the
First Draft Presentence Investigation Report (1st Draft PSIR) (Crim. docket no. 35),
which scored Thomas as a career offender and determined his advisory guidelines range
to be 262 to 327 months of incarceration, with a 3-level reduction for acceptance of
responsibility. 1st Draft PSIR at ¶ 45.1 In an Order (Crim. docket no. 45), filed April
5, 2012, I denied Thomas’s Motion To Withdraw Guilty Plea, on the ground that there
was no “fair and just reason” for allowing him to withdraw his plea. Specifically, I
found that Judge Zoss had thoroughly discussed the requirements for a conviction on the
conspiracy charge in Count 1, and that he had also made clear to Thomas that he could
face a sentence up to life imprisonment on Count 2, notwithstanding lower estimates of
1
The 1st Draft PSIR indicated that Thomas’s advisory guidelines range would be
360 months to life, with no reduction for acceptance of responsibility, and 292 to 365
months, with a 2-level reduction for acceptance of responsibility. 1st Draft PSIR at ¶ 45.
5
his advisory sentencing guidelines range at the plea hearing. The Amended And Final
Presentence Investigation Report (Final PSIR), filed on May 29, 2012, after the parties’
objections, included the same calculation of Thomas’s advisory sentencing guidelines
range as a career offender, to which Thomas’s second criminal counsel had made no
objections. Thomas’s second criminal counsel also did not lodge any objections to the
three offenses identified in the Final PSIR as predicate offenses for career offender status.
At Thomas’s sentencing hearing, on May 31, 2012, Sentencing Hearing Minutes
(Crim. docket no. 57), and in a Judgment (Crim. docket no. 59), I sentenced Thomas as
a career offender to a total term of 327 months. I stated that this sentence consisted of
60 months on Count 1, 120 months on Count 3, to be served consecutive to the term on
Count 1, and 147 months on Count 2, to be served consecutive to the term on Count 3.
In doing so, I granted the prosecution’s motion for upward departure and denied
Thomas’s motion for a downward variance. As to consideration of the 18 U.S.C.
§ 3553(a) factors, I found some mitigating factors, but I concluded that those mitigating
factors were far outweighed by other factors:
THE COURT: However, this case presents some of
the most egregious, repetitive, violent actions of anyone I’ve
sentenced. It presents a criminal history that is longstanding.
I mean, I don’t know how to say it. You’re a serial, recidivist,
violent offender. And the victims and society need protection
from you.
I’m not here to judge you. You mentioned you weren’t
a bad person, and that’s, of course, what your letters said.
I’m not in a position to judge good or bad. I’m in a position
to judge conduct.
And based on the evidence that I’ve heard and the
unobjected-to portions of the presentence report, the conduct
is shocking. I’m not shocked by much. I’ve been at this for
18 years, sentenced more than 400 defendants last year in 3
6
different -- actually 4 districts. Not much shocks me. This
case is shocking. Any one of these incidents would be
shocking to me, but the repetitive nature of it, I mean, I
actually can probably overlook if it happened one time, if it
happened several years ago and you’d gone to treatment and
done the batterers’ program and done something affirmative
to try and prevent it from happening again. You know, I’m
probably one of the few judges in the country that would
actually be able to overlook that and give a lower sentence.
But the amount of violence, I mean, you’re just lucky
you’re not in state court looking at a probably second-degree
murder conviction or maybe even a first-degree murder
conviction. I mean, you’re lucky because **[it] could have
happened in this case.
And, you know, the guideline range here is incredibly
lengthy for a conspiracy to distribute less than 50 kilograms
of marijuana, possession of a firearm in furtherance of a drugtrafficking offense, and possession of a firearm after having
been convicted of domestic violence. I mean, I don’t think
I’ve ever had those precise combination of crimes. But, you
know, the guideline range would be half of what it would be
had you not been a career offender.
And like I said, I frequently disagree with how the
career offender guideline works. But in this case it doesn’t do
an injustice at all. I think you are a poster person for how
Congress intended federal judges to sentence people with
repetitive violence. And I just can’t overlook the violence,
and I can’t overlook the guns, and I can’t overlook the use of
the guns to commit violence. And I can’t overlook 29 criminal
history points, 24 of which are scored.
So I’m denying the defendant’s motion for a downward
variance because the substantial aggravating factors of
recidivist criminal activity coupled with firearms in this case
and firearms used to inflict torture, violence, I can’t overlook
7
that when I have to balance those factors. The violence and
the use of the weapons to commit the violence so far
outweighs the mitigating factors. So the motion for downward
variance is denied.
Currently we have a guideline range of 262 to 327
months. I usually look -- well, I look very hard for ways to
try and sentence at the bottom of a guideline range if I’m not
doing a downward variance. Usually I’m doing a downward
variance in a substantial case where there’s a lot of time. But
I’ve already ruled out a downward variance in this case.
I’m going to use the fact that I found that the
defendant’s criminal history is substantially underrepresented
to nudge me substantially off my often approach ** bottom of
the guideline range up to the top of the guideline range. I’d
be within my discretion to go higher, but 327 months is a
very, very lengthy sentence, and I have to pick a sentence that
is sufficient but not greater than necessary. In my judgment
327 months is really as low as I could possibly go.
Sentencing Hearing Transcript (Crim. docket no. 64), 65:3-67:17.
Thomas’s second criminal counsel filed a Notice Of Appeal (Crim. docket no. 61)
of the judgment and sentence on June 11, 2012. In a per curiam opinion, filed February
13, 2013, and docketed in this court that same day (Crim. docket no. 75), the Eighth
Circuit Court of Appeals affirmed my denial of Thomas’s motion to withdraw his guilty
plea. The court explained that it agreed with my determination that Thomas understood
the nature of the conspiracy charge in the case and that Thomas was told of his statutory
range and was also told the advisory sentencing guidelines would apply. The court also
concluded that the dramatic increase in Thomas’s sentencing range as a career offender
over the estimates of his guidelines range at his plea hearing was not a basis to reject
prior precedent, because Thomas was advised at his plea hearing that the 84 to 90 months
estimate was likely the low estimate of the guidelines range, due to potential departures
8
and variances. Mandate on the appellate court’s decision issued on March 6, 2013. See
Mandate (Crim. docket no. 77).
Subsequent proceedings in Thomas’s criminal case in this court do not appear to
be relevant to the disposition of his § 2255 Motion.
B.
Section 2255 Proceedings
As I noted, above, Thomas filed his pro se § 2255 Motion on February 10, 2014,
in which he asserted numerous grounds for relief. By Order (Civ. docket no. 2), filed
February 10, 2014, I directed the respondent to file an answer or other appropriate
response. The Respondent filed an Answer (Civ. docket no. 3), consisting of a general
denial of Thomas’s factual allegations, on February 24, 2014. By Order (Civ. docket
no. 4), filed February 28, 2014, I directed the Clerk of Court to appoint counsel (habeas
counsel) to represent Thomas in these proceedings and set deadlines for Thomas to file a
brief, with the aid of habeas counsel, for the respondent to file a response brief, and for
Thomas to file a reply, if any. I also directed criminal counsel to cooperate with the
respondent by providing information, documents, and an affidavit, if necessary.
On May 30, 2014, Thomas filed his Opening Brief (Civ. docket no. 9), with the
aid of habeas counsel. In that Brief, habeas counsel described Thomas’s eleven pro se
claims, but stated that, after review of the files and records, habeas counsel would brief
“only the claims for failing to properly investigate and advise Thomas of the near
guarantee of a career criminal enhancement at sentencing and failing to litigate whether
Thomas actually qualified under the language of the career offender guideline and the
interpreting case law.” Petitioner’s Brief at 8. Habeas counsel stated that “the balance
of Thomas’ claims” were not briefed, because “the facts and law do not provide support
for these claims.” Id. at 8-9. Because Thomas’s other pro se claims were not briefed,
and Thomas has made no objection to his habeas counsel’s characterization of those
9
claims, I deem all but the two claims briefed by Thomas’s habeas counsel to be waived
or abandoned.
On October 2, 2014, the respondent filed its Response And Memorandum In
Support Of Government’s Response To Defendant’s Motion Under 28 U.S.C. § 2255
(Respondent’s Response) (Civ. docket no. 16), to which the respondent attached
affidavits from Thomas’s first and second criminal counsel (Civ. docket nos. 16-1 and
16-2, respectively). On October 23, 2014, Thomas filed his Reply Brief (Civ. docket
no. 17), again with the aid of habeas counsel.
There, unfortunately, this matter languished for more than a year, owing to the
press of other business and clerical oversight by chambers staff.
II.
A.
1.
LEGAL ANALYSIS
General Standards For § 2255 Relief
Grounds for § 2255 relief
“Section 2255 [of Title 28 of the United States Code] ‘was intended to afford
federal prisoners a remedy identical in scope to federal habeas corpus.’” Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United
States, 417 U.S. 333, 343 (1974)). Nevertheless, “[l]ike habeas corpus, this remedy
‘does not encompass all claimed errors in conviction and sentencing.’” Id. (quoting
United States v. Addonizio, 442 U.S. 178, 185 (1979). Specifically, § 2255 provides as
follows:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground [1] that the sentence was imposed in violation of the
Constitution or laws of the United States, or [2] that the court
was without jurisdiction to impose such sentence, or [3] that
the sentence was in excess of the maximum authorized by law,
or [4] is otherwise subject to collateral attack, may move the
10
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a).
Thus, § 2255 “provides a remedy for jurisdictional and
constitutional errors,” but “[b]eyond that, the permissible scope of a § 2255 collateral
attack on a final conviction or sentence is severely limited; ‘an error of law does not
provide a basis for collateral attack unless the claimed error constituted “a fundamental
defect which inherently results in a complete miscarriage of justice.”‘” Sun Bear, 688
F.3d at 704 (quoting Addonizio, 442 U.S. at 185, in turn quoting Hill v. United States,
368 U.S. 424, 428 (1962)); accord Walking Eagle v. United States, 742 F.3d 1079, 108182 (8th Cir. 2014) (“‘Relief under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could not have been raised on
direct appeal and, if uncorrected, would result in a complete miscarriage of justice.’”
(quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).
In addition, where an issue was raised, considered, and rejected on the merits on
direct appeal, “it may not be raised in a motion for post-conviction relief under 28 U.S.C.
§ 2255 or § 2241.” United States v. Rhodes, 730 F.3d 727, 731 (8th Cir. 2013). Also,
where a claim was not raised on direct appeal, it generally may not be raised in a § 2255
motion. Walking Eagle, 742 F.3d at 1082. A petitioner may overcome “procedural
default” from failure to raise a claim on direct appeal, however, if the petitioner
establishes both “‘cause for the procedural default and actual prejudice resulting from the
error.’” Id. (quoting Apfel, 97 F.3d at 1076, in turn citing United States v. Frady, 456
U.S. 152, 167-68 (1982)). “‘Absent unusual circumstances, a showing of ineffective
assistance of counsel satisfies both cause and prejudice.’” Id. (quoting Apfel, 97 F.3d at
1076)).
Indeed, “ineffective assistance of counsel” claims are not procedurally defaulted
when brought for the first time pursuant to § 2255. Massaro v. United States, 538 U.S.
11
500, 508 (2003). The Eighth Circuit Court of Appeals has also expressly recognized that
a claim of “ineffective assistance of counsel” should be raised in a § 2255 proceeding,
rather than on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir.
2003) (“When claims of ineffective assistance of trial counsel are asserted on direct
appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”). Thus, Thomas’s
claims of ineffective assistance of his two criminal counsel are properly and timely
presented in § 2255 proceedings.
Not only does ineffective assistance of counsel establish “cause and prejudice” to
overcome procedural default, in my experience, such claims are far and away the most
common claims for § 2255 relief. The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. Thus, a criminal
defendant is constitutionally entitled to the effective assistance of counsel not only at trial,
but at sentencing, on direct appeal, and during other “critical” phases of the criminal
proceedings. Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (negotiation of a plea
bargain); Burger v. Kemp, 483 U.S. 776, 803–04 (1987) (pretrial plea negotiations);
Evitts v. Lucey, 469 U.S. 387, 396 (1985) (direct appeal); Gardner v. Florida, 430 U.S.
349, 358 (1977) (sentencing). The Eighth Circuit Court of Appeals has recognized that,
if a defendant was denied the effective assistance of counsel guaranteed by the Sixth
Amendment, “then his sentence was imposed ‘in violation of the Constitution,’ . . . and
he is entitled to relief” pursuant to § 2255(a). King v. United States, 595 F.3d 844, 852
(8th Cir. 2010). I will consider the standards applicable to ineffective assistance of
counsel claims in more detail when I turn to consideration of Thomas’s specific
ineffective assistance of counsel claims.
12
2.
Standards for an evidentiary hearing
One further procedural matter that is often of considerable importance in § 2255
proceedings is the standard for an evidentiary hearing. Although Thomas’s habeas
counsel has not expressly requested an evidentiary hearing, the respondent has expressly
argued that no hearing is required, here, because “[r]eview of the motion, files and record
conclusively show that [Thomas] is not entitled to relief because there is sufficient
evidence to support Movant’s conviction.” Respondent’s Brief at 12-13.
As the Eighth Circuit Court of Appeals recently explained,
“Evidentiary hearings on 28 U.S.C. § 2255 motions are
preferred, and the general rule is that a hearing is necessary
prior to the motion’s disposition if a factual dispute exists.”
[Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir.
2013)]. “The district court is not permitted to make a
credibility determination on the affidavits alone.” Id. at 1206.
United States v. Sellner, 773 F.3d 927, 929 (8th Cir. 2014).
Indeed, “‘[w]here
petitioner’s allegations, if true, amount to ineffective assistance of counsel, a hearing
must be held unless the record ‘affirmatively refutes the factual assertions upon which
[the claim] is based.’’” Franco v. United States, 762 F.3d 761, 763 (8th Cir. 2014)
(citing Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007), in turn quoting Shaw
v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994)). On the other hand,
[The district court] may . . . deny an evidentiary hearing if
“(1) the [petitioner’s] allegations, accepted as true, would not
entitle the [petitioner] to relief, or (2) the allegations cannot
be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than
statements of fact.” [Thomas, 737 F.3d] at 1206–07
(alterations in original) (quoting Buster v. United States, 447
F.3d 1130, 1132 (8th Cir.2006)).
13
Sellner, 773 F.3d at 929-930; accord Anderson v. United States, 762 F.3d 787, 792 (8th
Cir. 2014) (citing 28 U.S.C. § 2255(b)); Franco, 762 F.3d at 763; Winters v. United
States, 716 F.3d 1098, 1103 (8th Cir. 2013).
The district court’s denial of an evidentiary hearing is reviewed for abuse of
discretion. Sellner, 773 F.3d at 929; see also United States v. Frausto, 754 F.3d 640,
642 (8th Cir. 2014) (explaining that, to determine whether the district court abused its
discretion in denying an evidentiary hearing, the court must review de novo the validity
of a petitioner’s § 2255 claims). I will determine whether an evidentiary hearing is
necessary on each of Thomas’s briefed claims, in turn.
B.
Thomas’s Claims Of Ineffective
Assistance of Counsel
As explained above, the only two claims briefed by Thomas’s habeas counsel are
claims of ineffective assistance of his two criminal counsel. Before considering these
claims separately, I will summarize the requirements for proof of an ineffective assistance
of counsel claim.
1.
“Ineffective assistance of counsel” standards
As the Eighth Circuit Court of Appeals has explained,
“Normally, in order to succeed on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s
performance was ‘deficient’ and that the ‘deficient
performance prejudiced the defense.’” Walking Eagle v.
United States, 742 F.3d 1079, 1082 (8th Cir.2014) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984)).
Sweeney v. United States, 766 F.3d 857, 859-60 (8th Cir. 2014). “Failure to establish
either prong of Strickland ‘is fatal to a claim of ineffective assistance.’” Hyles v. United
14
States, 754 F.3d 530, 533 (8th Cir. 2014) (quoting Morelos v. United States, 709 F.3d
1246, 1250 (8th Cir. 2013)). These two prongs require some further explication.
“Deficient” performance is performance that falls “‘below an objective standard
of reasonableness,’” Lafler v. Cooper, ___ U.S. ___, ___, 132 U.S. 1376, 1384 (2012)
(quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)), that is, conduct that failed to conform
to the degree of skill, care, and diligence of a reasonably competent attorney. Strickland
v. Washington, 466 U.S. 668, 687 (1984); Donnell v. United States, 765 F.3d 817, 821
(8th Cir. 2014). Thus, “[t]he challenger’s burden is to show ‘that counsel made errors
so serious that counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 687)).
“To establish Strickland prejudice a defendant must ‘show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Lafler, ___ U.S. at ___, 132 S. Ct. at 1384
(quoting Strickland, 466 U.S. at 694). The Court has explained more specifically what
a “reasonable probability” means:
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” [Strickland, 466 U.S.
at 694]. That requires a “substantial,” not just “conceivable,”
likelihood of a different result. Richter, 562 U.S., at ___, 131
S. Ct., at 791.
Cullen v. Pinholster, 563 U.S. 170, 189 (2011). Ultimately, a showing of “prejudice”
requires counsel’s errors to be “‘so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S.
at 687). As the Eighth Circuit Court of Appeals has explained, however,
[P]rejudice may be presumed when the defendant experiences
a “complete denial of counsel” at a critical stage of his trial.
United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039,
15
80 L.Ed.2d 657 (1984). “[T]he trial is the paradigmatic
critical stage.” United States v. Turner, 975 F.2d 490, 496
(8th Cir.1992).
Sweeney, 766 F.3d at 859-60.
I now turn to consideration of Thomas’s two claims of ineffective assistance of
criminal counsel briefed by his habeas counsel.
2.
First criminal counsel’s failure to advise Thomas of the potential
for a career offender enhancement
The first claim briefed by Thomas’s habeas counsel is the alleged failure of
Thomas’s first criminal counsel to properly investigate and advise Thomas of the “near
guarantee” of a career criminal enhancement at sentencing. The respondent denies that
Thomas is entitled to any relief on this claim.
a.
Arguments of the parties
Thomas argues that the denial of his motion to withdraw his guilty plea does not
foreclose his present claim of ineffective assistance of counsel as to advice about his
potential for a career offender enhancement, and the respondent does not argue otherwise.
More specifically, as to deficient performance of counsel, Thomas argues that the only
issue that was in doubt concerning the applicability of the career offender enhancement
was whether he had previously been convicted of at least two predicate felony drug crimes
or crimes of violence. He contends that, from the charging of Count 3, his first criminal
counsel should have been on notice of possible crimes of domestic violence, and his prior
criminal history also included a conviction for delivery of an imitation controlled
substance, all of which would have counted as felonies under federal law. Thomas
contends that, because all of these previous offenses were in Iowa, records of them should
have been readily available to his first criminal counsel. Thus, he contends that it should
have been obvious to reasonably competent counsel that he was at least potentially subject
16
to a career offender enhancement, but his first criminal counsel never brought that to his
attention before he pleaded guilty.
Thomas also contends that Judge Zoss’s warning at his plea hearing about a
possible life sentence did not cure his first criminal counsel’s deficient performance,
because it is counsel’s duty to properly advise a defendant of his likely sentence prior to
the defendant entering into a guilty plea. Thomas alleges that his first criminal counsel
actually informed him that he did not fall within the requirements for a career offender
enhancement, or at the very least, told him that he did not think he would. Thomas also
points out that the possibility of such an enhancement was never discussed during his plea
hearing.
As to prejudice, Thomas points out that he has averred that he would not have
pleaded guilty, if he had been properly advised of the potential for the career offender
enhancement. Thomas argues that the possibility of an acceptance of responsibility
reduction, if he pleaded guilty, “meant nothing,” once the career offender guidelines
were applied, so that there was no advantage to pleading guilty.
The respondent counters that, taking the issue of prejudice first, there was none
even if Thomas’s first criminal counsel performed deficiently, because Thomas was made
aware of his possible sentencing exposure before he entered his guilty plea. While the
respondent acknowledges that the parties gave “rough” estimates of Thomas’s potential
sentence, without any reference to a career offender enhancement, Judge Zoss did warn
Thomas of his potential for a life sentence and the possibility that any advisory sentencing
guidelines calculation could be higher (or lower) than the parties had estimated. Thus,
the respondent argues, Thomas could not have been surprised when the PSIR indicated a
higher advisory sentencing guidelines range, but still less than life.
The respondent also argues that Thomas’s first criminal counsel’s performance
was not deficient, because expressly identifying the possible career offender enhancement
17
is not required.
Moreover, the respondent argues that, according to his affidavit,
Thomas’s first criminal counsel did research Thomas’s criminal history and the possibility
of a career criminal enhancement and discussed those matters with Thomas. Although
the respondent concedes that Thomas’s first criminal counsel did not think the career
offender enhancement would apply, the respondent points out that first criminal counsel,
nevertheless, explained to Thomas that he could be wrong about that, and then explained
what Thomas’s guidelines range would be both with and without such an enhancement.
In reply, Thomas argues that, even after Booker, a defense attorney must still
properly calculate a defendant’s advisory guidelines range, because that is the starting
point for the sentencing determination. Thomas points out that his first criminal counsel
has not offered in his affidavit any explanation of why he did not think the career offender
enhancement would not apply, and such an enhancement was never mentioned during the
plea hearing. Thomas also argues that deficient performance cannot be covered by
stating, “I might be wrong,” where, as here, it appears that there was either a lack of
research and investigation or a lack of understanding behind the guess. Thomas argues
that, the case cited by the respondent as holding that it is not necessary to advise a
defendant that the career offender enhancement might apply is distinguishable, because,
in this case, the potential applicability of the enhancement was obvious, so that it was not
impossible to know that it might apply until the PSIR was drafted. Thomas also argues
that the difference between the estimated guidelines range of 84 to 90 months and the
career offender guidelines range of 262 to 327 months proves prejudice. He contends
that a tripling of his estimated guidelines sentence was not likely, even considering his
criminal history, without a career offender enhancement.
b.
Analysis
There is no question “that Strickland applies to ineffective assistance claims arising
out of the plea bargaining process.” See, e.g., Wanatee v. Ault, 259 F.3d 700, 703 (8th
18
Cir. 2001) (citing Hill, 474 U.S. at 58); accord Padilla, 559 U.S. at 373. Moreover,
trial counsel certainly has an obligation to advise a defendant about the benefits and risks
of pleading guilty or going to trial and about the likely sentencing range if the defendant
goes to trial and is convicted or pleads guilty with or without a plea agreement. See,
e.g., United States v. Hernandez, 450 F. Supp. 2d 950, 959 (N.D. Iowa 2006). Here,
however, Thomas’s claim that his first criminal counsel failed to meet these obligations
is contradicted by the record, so that no evidentiary hearing is required. Sellner, 773
F.3d at 929-930.
The record, here, shows that Thomas’s first criminal counsel fulfilled his duty to
communicate with Thomas about the possibility of a career offender enhancement.
Specifically, Thomas’s first criminal counsel’s efforts to inform Thomas about options
for and the comparative risks of going to trial or accepting a plea agreement were
objectively reasonable. See Lafler, ___ U.S. at ___, 132 U.S. at 1384 (the petitioner
must show that trial counsel’s performance fell “‘below an objective standard of
reasonableness’” (quoting Hill, 474 U.S. at 57)). Thomas’s first criminal counsel has
averred that he did explain to Thomas his concerns about application of the career
offender enhancement, that he did not think it would apply, but that he could be wrong,
so that he explained to him again what the starting guidelines range would be, if the
enhancement did apply.
Thomas’s first criminal counsel has also averred that he
discussed this issue with Thomas “at length,” as well as the benefits of acceptance of
responsibility, and Thomas expressed his continuing desire to plead guilty. See Affidavit
Of First Criminal Counsel, unnumbered ¶ 3 (quoted in pertinent part at 4). Thomas has
not attempted to rebut his first criminal counsel’s statements on this point with any
statement under oath, so that there is no basis to find that his first criminal counsel failed
to conform to the degree of skill, care, and diligence of a reasonably competent attorney
in this respect. Strickland, 466 U.S. at 687; Donnell, 765 F.3d at 821. Thomas’s
19
contentions that his first criminal counsel failed to give him proper advice about and
failed to investigate or understand the possibility of a career offender enhancement are
simply contradicted by the record evidence.
Furthermore, Thomas has failed to establish the “prejudice” prong of this
ineffective assistance of counsel claim. See Lafler, ___ U.S. at ___, 132 S. Ct. at 1384;
Cullen, 563 U.S. at 189.
The respondent has focused on the wrong measure of
“prejudice” for this claim, by focusing on whether Thomas was made aware of his
possible sentencing exposure, by the judge taking his plea, if not by his counsel, before
he entered his guilty plea. The proper measure of “prejudice” for a claim of ineffective
assistance of counsel in the discussion of a plea, however, is whether “‘there is a
reasonable probability that, but for counsel’s errors, [the defendant] would not have
pleaded guilty and would have insisted on going to trial.’” See, e.g., Frausto, 754 F.3d
at 643 (quoting Hill, 474 U.S. at 59).
Applying the proper measure of “prejudice,” it is true that these proceedings are
not the first ones in which Thomas has asserted that he would not have pleaded guilty, if
he had been advised of the possibility of a career offender enhancement. Rather, he made
the same assertion in support of his motion to withdraw his guilty plea in his criminal
proceedings. That bald assertion is not dispositive, however, because Thomas offers
nothing persuasive to support it.
First, contrary to Thomas’s present contentions, there was sufficient potential
benefit to acceptance of responsibility, even if he was found to be a career offender, to
make a guilty plea reasonable, even attractive. As I pointed out, above, at page 5 and
footnote 3, acceptance of responsibility did continue to reduce Thomas’s potential
sentence, even with the career offender enhancement, by a substantial amount. Both his
1st Draft PSIR and his Final PSIR show that Thomas’s enhanced guidelines range went
from 360 months to life, with no reduction for acceptance of responsibility, to 292 to 365
20
months, with a 2-level reduction for acceptance of responsibility, and to 262 to 327
months, with a 3-level reduction for acceptance of responsibility. 1st Draft PSIR at ¶ 45;
Final PSIR at ¶ 45. A “low end” reduction of almost 100 months, and a “high end”
reduction from life to 327 months belies Thomas’s contention that acceptance of
responsibility “meant nothing” once the career offender guideline applied. Thus, Thomas
would still have had significant incentive to plead guilty, even if he was aware of the
potential for a career offender enhancement.
Second, the difference between Thomas’s estimated sentencing guidelines range at
his plea hearing and his actual sentencing guidelines range in the PSIRs does not prove
prejudice, as Thomas contends. A defendant’s potential sentence is certainly a reasonable
factor for a defendant to consider in deciding whether or not to plead guilty or to go to
trial, but it is not the only factor. Thomas’s attempt to point to weaknesses in the
prosecution’s case—specifically, his contention that he did not conspire to distribute
marijuana or possess a firearm in furtherance of a drug conspiracy—ring hollow, here,
where it is clear from the record available prior to Thomas’s guilty plea that the
prosecution had sufficient evidence to sustain a conviction on, or to establish the basis
for guilty pleas to, all of the charged offenses. The prosecution’s Rule 11 letter (Crim.
docket no. 15), which was available to Thomas prior to his plea hearing, properly stated
the elements of the charged conspiracy. Plea Hearing Transcript at 8:19-9:23. Also, the
prosecution outlined its evidence supporting the conspiracy charge during the plea
hearing, and Thomas recited his understanding of and commission of each of the properly
defined elements of the conspiracy offense during the plea hearing. Id. at 9:24-11:11.
Again, the prejudice question is not whether Thomas got as good a deal as he hoped for
by pleading guilty, the prejudice question is whether Thomas would still have chosen to
plead guilty, rather than go to trial, if properly advised. See Frausto, 754 F.3d at 643;
see also Matthews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) (rejecting an
21
ineffective assistance of counsel claim concerning a plea, because “[t]here is no indication
that Matthews would not have pleaded guilty had his counsel, in addition to the trial
judge, properly advised him of the maximum potential sentence.”). Here, where there
was still a significant benefit in pleading guilty, in the form of significantly lower
sentencing guidelines ranges for acceptance of responsibility, even if Thomas had been
properly advised of the potential applicability of the career offender enhancement, versus
going to trial, his contentions that he would not have pleaded guilty if properly advised
are unpersuasive.
My decision in United States v. Marcos-Quiroga, 478 F. Supp. 2d 1114 (N.D.
Iowa 2007), on which Thomas substantially relies, does not require a different result.
For example, unlike the defendant in Marcos-Quiroga, who was told by his counsel that
the career offender would not apply, Thomas was told by his first criminal counsel that
it might apply, and Thomas’s first criminal counsel then gave Thomas a preview of what
his guidelines sentence would be with such an enhancement.
This undermines the
credibility of Thomas’s contention that he would not have pleaded guilty if properly
advised, because he was properly advised. I also am not convinced, as I was in MarcosQuiroga, that Thomas’s decision about pleading guilty was based solely or primarily on
the belief that he would not be scored as a career offender, where Thomas was advised
that he might be scored as a career offender and there were still significant benefits to
pleading guilty (acceptance of responsibility reductions), even if he was scored as a career
offender.
This claim is denied.
3.
Second criminal counsel’s failure to challenge the career offender
enhancement
The second claim briefed by Thomas’s habeas counsel is his claim of ineffective
assistance of his second criminal counsel for failing to litigate whether Thomas actually
22
qualified as a career offender under the language of the applicable guideline and the
interpreting case law. The respondent also denies that Thomas is entitled to relief on this
claim.
a.
Arguments of the parties
Thomas argues that the Iowa statute defining assault, IOWA CODE § 708.1, for
purposes of the statute defining domestic abuse assault, IOWA CODE § 708.2A, is
“divisible,” in the sense that some statutory definitions of the offense would not define
crimes of violence. He also argues that his second criminal counsel did not object to the
court’s improper consideration of certain parts of the record (police reports) to determine
whether his prior domestic abuse assault convictions were, in fact, crimes of violence
and that, without more information, I could not make the necessary determination that
the crimes were crimes of violence. He contends that, if his second criminal counsel had
objected to the enhancement, there is a reasonable probability that he would not have
been sentenced with the career criminal enhancement. Specifically, he argues that I
would not have departed or varied upward anywhere near 327 months in the absence of
a career offender enhancement.
The respondent counters that, even assuming Thomas’s second criminal counsel
performed deficiently, there was no prejudice, because I understood that the guidelines
were purely advisory, independently weighed the § 3553(a) factors, and concluded that
327 months of imprisonment was a sentence that was sufficient but not greater than
necessary, inter alia, to protect the public from Thomas. The respondent argues that the
record shows that, had the career offender enhancement not applied, I would have
rejected the guidelines and given Thomas the same sentence, based on his criminal history
and dangerousness, so that there was no prejudice even if Thomas’s second criminal
counsel performed deficiently.
23
In reply, Thomas argues that he was still prejudiced, because a variance up to 327
months, without a career offender enhancement, was unlikely.
b.
Analysis
The 2011 version of the Sentencing Guidelines, which was applicable to Thomas’s
sentencing, defines a career offender as follows:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. § 4B1.1(a) (2011).2
The Final PSIR identifies the following offenses as predicate offenses for
Thomas’s career offender enhancement: (1) a conviction for a domestic abuse assault,
second offense, following an arrest on March 1, 2002, see Final PSIR at ¶ 57; (2) a
conviction for delivery of an imitation controlled substance—crack cocaine, following an
arrest on July 23, 2006, see Final PSIR at ¶ 67; and (3) a conviction for a domestic abuse
assault, second offense, following an arrest on October 14, 2006, see Final PSIR at ¶ 70.
Thomas does not contend that his second criminal counsel should have challenged the
conviction for delivery of an imitation controlled substance as a predicate “controlled
substance” offense. Thomas also does not argue that his second criminal counsel should
have challenged the two alleged predicate domestic abuse assault convictions on the
ground that they were not “felonies” under federal law. Rather, the only ground on
which Thomas asserts that his second criminal counsel should have challenged the
2
The definition is identical in the 2015 Sentencing Guidelines. See U.S.S.G.
§ 4B1.1(a) (2015).
24
domestic abuse assault convictions is that they were not shown to be “crimes of violence”
on the basis of appropriate documents. Because Thomas does not challenge the prior
“controlled substance” conviction, and only two predicate offenses are required, see
U.S.S.G. § 4B1.1(a), he can only establish deficient performance of his second criminal
counsel if neither of the alleged domestic abuse assault convictions were “crimes of
violence” on the basis of documents that I could properly consider to make that
determination.
The 2011 version of the Sentencing Guidelines defines a “crime of violence,” as
follows:
(a)
The term "crime of violence" means any offense
under federal or state law, punishable by
imprisonment for a term exceeding one year,
that –
(1)
has as an element the use, attempted use,
or threatened use of physical force
against the person of another, or
(2)
is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents
a serious potential risk of physical injury
to another.
U.S.S.G. § 4B1.2(a) (2011).3 In decisions antedating Thomas’s sentencing, the Eighth
Circuit Court of Appeals recognized that, under the appropriate approach to determining
whether or not a crime is a “crime of violence” within the meaning of U.S.S.G.
§ 4B1.1(a), the court’s “examination ‘is limited to . . . the charging document, the terms
of a plea agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable judicial
3
Again, the definition is identical in the 2015 Sentencing Guidelines.
U.S.S.G. § 4B1.2(a) (2015).
25
See
record of this information.’” United States v. Malloy, 614 F.3d 852, 857 (8th Cir. 2010)
(quoting Shepard v. United States, 544 U.S. 13, 26 (2005)); United States v. OjedaEstrada, 577 F.3d 871, 876 (8th Cir. 2009) (same).
Thomas is correct that the Final PSIR’s description of the factual basis for his
conviction for domestic abuse assault, second offense, following his arrest on March 1,
2002, appears to be based on “police reports.” See Final PSIR at ¶ 57. Police reports
are not a proper basis for the determination of whether a prior conviction is a “crime of
violence” under Shepard, however. See Malloy, 614 F.3d at 857 (quoting Shepard, 544
U.S. at 26). The Final PSIR’s description of the factual basis for Thomas’s conviction
for domestic abuse assault, second offense, following his arrest on October 14, 2006, is
based on different documents. As to that conviction, the Final PSIR states, “The Court
Complaint reflects that the defendant became angry and violent with Lakisha Thomas
after she arrived home from work.” Final PSIR at ¶ 70. Likewise, the October 16,
2006, Complaint initiating the criminal prosecution for this offense, stated, in part,
The intoxicated def [sic] [i.e., Thomas] became angry and
violent towards the mother of his child when she arrived home
from work. The victim feared for her safety. . . .
Prosecution’s May 23, 2012, Sentencing Memorandum And Memorandum In Support
Of It’s Motion For Upward Departure (Sentencing Memorandum) (Crim. docket no. 50),
Exhibit #3, 290 (Crim. docket no. 50-14, page 30). Similarly, the Trial Information for
this conviction states, in pertinent part,
The Defendant became angry and yelled at the victim, with
whom he resides and who is the mother of his child, and
grabbed a phone from her hand as she was trying to make a
call, placing the victim in fear of immediate physical harm
from the Defendant by his display of his apparent ability to
execute the act. . . .
26
Prosecution’s Sentencing Memorandum, Exhibit #3 at 292 (Crim. docket no. 50-15, page
2). The “Court Complaint” and “Trial Information” are “charging documents” that may
properly be considered under Shepard, see Malloy, 614 F.3d at 857 (quoting Shepard,
544 U.S. at 26), and plainly were available to the prosecution and Thomas’s second
criminal counsel prior to his sentencing hearing. Furthermore, the fact that Thomas
“became violent with Lakisha Thomas” and “grabbed a phone from her” in a manner
that “plac[ed] the victim in fear of immediate physical harm from the Defendant by his
display of his apparent ability to execute the act” are sufficient to establish that the
domestic abuse assault, second offense, was charged under the portion of IOWA CODE
§ 708.1 defining an assault as “[a]ny act which is intended to place another in fear of
immediate physical contact which will be painful [or] injurious . . . coupled with the
apparent ability to execute the act.” IOWA CODE § 708.1(2)(a). Furthermore, that
definition of “assault” plainly “has as an element the use, attempted use, or threatened
use of physical force against the person of another,” and/or “otherwise involves conduct
that presents a serious potential risk of physical injury to another.”
U.S.S.G.
§ 4B1.2(a)(1) and (2). In short, there was proper documentation under Shepard from
which I could (and did) determine that Thomas had committed a predicate “crime of
violence.”
More importantly, in the context of a claim of ineffective assistance of counsel,
the Eighth Circuit Court of Appeals has long recognized that counsel’s refusal to advance
a meritless argument cannot constitute ineffective assistance. See, e.g., Rodriguez v.
United States, 17 F.3d 225, 226 (8th Cir. 1994); accord Thai v Mapes, 412 F.3d 970,
978 (8th Cir. 2005) (“In our view, [the petitioner’s] claim fails because [the petitioner]
cannot show that his counsel performed deficiently by failing to raise a meritless
argument.”). The argument that Thomas contends that his second criminal counsel
27
should have raised is plainly without merit in light of the record, so that his second
criminal counsel did not perform deficiently by failing to raise it.
Furthermore, for the sake of completeness, the record also demonstrates that
Thomas was not prejudiced by his second criminal counsel’s failure to argue that none of
his domestic abuse assault charges constituted predicate “crimes of violence” for the
career offender enhancement. See Sweeney, 766 F.3d at 859-60 (an ineffective assistance
claim requires proof of deficient performance and prejudice); Hyles, 754 F.3d at 533
(“Failure to establish either prong of Strickland ‘is fatal to a claim of ineffective
assistance.’” (quoting Morelos, 709 F.3d at 1250)). First, as I pointed out, just above,
even if Thomas’s second criminal counsel had challenged the predicate domestic abuse
assault charges, see Lafler, ___ U.S. at ___, 132 S. Ct. at 1384; Cullen, 563 U.S. at
189, there was proper documentation under Shepard from which I could (and did)
determine that Thomas had committed a predicate “crime of violence.”
Second,
Thomas’s contention that prejudice is proved by the difference between his estimated
sentencing guidelines range at his plea hearing and his actual sentencing guidelines range
as a career offender is, again, unavailing, but for somewhat different reasons. I believe—
and the transcript of Thomas’s sentencing hearing makes clear—that I would have
sentenced Thomas to 327 months, even had he not been scored as a career offender. For
example, I concluded that a very long sentence was warranted, because Thomas had a
“shocking” criminal record, his record was underrepresented in his criminal history
scoring, and, probably most importantly, because of my independent consideration of
§ 3553(a) factors, including Thomas’s history of violence and the need to protect his
victims and society from him. See Sentencing Hearing Transcript (Crim. docket no. 64),
65:3-67:17 (quoted, above, beginning at page 6). I ultimately concluded—not simply
because Thomas had been scored as a career offender, but because of my evaluation of
the § 3553(a) factors—that “I’d be within my discretion to go higher, but 327 months is
28
a very, very lengthy sentence, and I have to pick a sentence that is sufficient but not
greater than necessary. In my judgment 327 months is really as low as I could possibly
go.” Id. at 67:13-17. Thomas cannot show prejudice, because he cannot show that his
sentence would have been different, even if his second criminal counsel had raised and
won an argument that Thomas did not have a predicate domestic abuse assault offense,
based on proper documentation.
This claim is denied.
C. Certificate Of Appealability
Denial of all of Thomas’s claims for § 2255 relief, including those abandoned in
briefing, raises the question of whether or not he is entitled to a certificate of appealability
on those claims. In order to obtain a certificate of appealability on those claims, Thomas
must make a substantial showing of the denial of a constitutional right. See Miller–El v.
Cockrell, 537 U.S. 322 (2003); Garrett v. United States, 211 F.3d 1075, 1076–77 (8th
Cir. 2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins,
151 F.3d 872, 873–74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir.
1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). “A substantial showing is a
showing that issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox, 133 F.3d at 569.
Moreover, the United States Supreme Court reiterated in Miller–El v. Cockrell that,
“‘[w]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.’” 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). I conclude that Thomas has failed to make a substantial showing that any of his
claims are debatable among reasonable jurists, that a court could resolve any of the issues
29
raised in those claims differently, or that any question raised in those claims deserves
further proceedings. Consequently, a certificate of appealability is denied as to all of
Thomas’s claims. See 28 U.S.C. § 2253(c)(1)(B); Miller-El, 537 U.S. at 335-36; Cox,
133 F.3d at 569.
III.
CONCLUSION
Upon the foregoing,
1.
Petitioner Isaiah Earl Thomas’s February 10, 2014, pro se Motion Under
§ 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody
(§ 2255 Motion) (Civ. docket no. 1) is denied in its entirety;
2.
This matter is dismissed in its entirety; and
3.
No certificate of appealability will issue for any claim or contention in this
case.
IT IS SO ORDERED.
DATED this 16th day of February, 2016.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
30
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?