Thompson v. USA

Filing 1

MEMORANDUM, OPINION AND ORDER as to John Thompson (2): 1. The Magistrate Judge's September 29, 2016, Report and Recommendation [Record No. 217 as amended by the March 30, 2017, Report and Recommendation[Record No. 255 is ADOPTED and INCORPORATED by reference. 2. Movant John Thompsons motion to vacate, set aside, or correct his sentence,pursuant to 28 U.S.C. § 2255 [Record No. 202] is DENIED. Signed by Judge Danny C. Reeves on 8/3/17.(MRS)cc: COR, pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
JOHN THOMPSON,
Defendant/Movant.

)
)
)
)
)
)
)
)
)

Criminal Action No. 6: 13-030-DCR
and
Civil Action No. 6: 16-130-DCR
MEMORANDUM OPINION
AND ORDER

*** *** *** ***
John Thompson has a problem telling the truth. When he chose to testify about the
quantity of drugs he was peddling, he lied. And because of that lie, he received an enhanced
sentence for obstruction of justice and lost credit for acceptance of responsibility. Not a
good decision on his part.
Thompson tells another tale through his § 2255 motion: his defense counsel
supposedly was engaged in an illicit-fee-agreement relationship with a government
witness. He argues that, because of this alleged relationship, counsel had an actual conflict
of interest and his guilty plea should be vacated. But the truth has a way of creeping in.
There was no such “fee agreement,” there is no evidence of an illicit relationship, and the
government’s witness was never a government’s witness. Finally, perhaps expecting his
conflict-of-interest story to crumble with adversarial testing, Thompson makes a new
claim. For the first time, he asserted while testifying at the evidentiary hearing that counsel
told him to lie about the quantity of drugs. The United States Magistrate Judge found the
-1 

latest claim lacking in credibility and the undersigned agrees completely. In short,
Thompson’s claims lack evidentiary support and his § 2255 motion will be denied.
I.
On November 15, 2013, Thompson pleaded guilty to one count of conspiring to
distribute oxycodone and one count of distributing oxycodone, in violation of 21 U.S.C. §
846 and § 841(a)(1). [Record Nos. 20, 97] In light of a factual dispute over the quantity
of pills in issue, an evidentiary hearing was held on January 10, 2014. [Record No. 102]
In findings published on January 13, 2014, the Court found defendant Thompson to have
received a total of 8,750 oxycodone 30 milligram pills over the course of the conspiracy,
despite Thompson’s testimony alleging a much smaller quantity.1 [Record No. 104]
Thompson was sentenced on March 28, 2014, to 190 months’ incarceration, followed by a
three-year term of supervised release. [Record Nos. 138 and 139]
In light of Thompson’s false testimony during the evidentiary hearing, the defendant
did not receive credit for acceptance of responsibility in connection with his non-binding
guideline calculation. [See Record No. 154.] Instead, he received a two-level increase for
obstruction of justice. [Id.] Thompson appealed his sentence, challenging the Court’s
drug-quantity findings, along with his obstruction enhancement and denial of acceptance

1

This quantity included as many as 600 pills per week during the course of the
conspiracy, despite Thompson’s testimony that he never received more than 90 pills per week.
[Record No. 104 at 4-5] The Court did not find Thompson’s testimony credible, but instead
found that it was offered in an attempt to incorrectly reduce his guideline sentencing range.
[Id. at 5]

-2 

credit. [See Record Nos. 140 and 171.] The Sixth Circuit later affirmed [Record Nos. 171
and 172] and on June 22, 2015, the Supreme Court denied the defendant’s petition for a
writ of certiorari. [Record No. 188]
Exactly one year later, Thompson filed a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255.2 [Record No. 202] Thompson alleges six theories of
ineffective assistance of counsel. His primary claim was that his then-defense counsel,
Warren Scoville (now deceased), had an actual conflict of interest. In accordance with
local practice, this motion was referred to United States Magistrate Judge J. Gregory
Wehrman for initial consideration. A briefing order was set, and response and reply briefs
were filed. [Record Nos. 204, 211, 215]
On September 29, 2016, Magistrate Judge Wehrman issued a Report and
Recommendation concluding that the Thompson’s motion should be denied. [Record No.
217] Magistrate Judge Wehrman found that “most of defendant’s claims are too generic
and conclusory to warrant §2255 relief.” [Id. at 4] However, with respect to counsel’s
alleged conflict of interest, Magistrate Judge Wehrman concluded that Thompson’s did not
meet “his steep burden to show deficient performance and/or prejudice,” especially in light

2

The motion’s penultimate page is signed and dated June 22, 2016. [Record No. 202 at
10] The certificate of service is on the final page of the document, but is not separately signed.
[Id. at 11] The envelope is not postmarked. [See Record No. 202-2] It was mailed from the
Federal Correctional Institution in Butner, North Carolina, and docketed on June 30, 2016.
[Id.] Despite the government’s suggestion of untimeliness, the Magistrate Judge found a lack
of sufficient basis to doubt the timelines of the motion under the mailbox rule. [See Record
No. 217 at n.1.] Despite an unsigned final page, the Court agrees.
-3-

of the shaky evidentiary basis presented. [Id. at 8] Thompson filed objections to the
Magistrate Judge’s Report and Recommendation, signed and dated October 18, 2016,
which were filed in the record on October 24, 2016. [Record No. 220] The objection
strenuously asserts that counsel had an actual conflict of interest. [See, e.g., id. at 6.]
Thompson included a purported affidavit of “Brooke Williams” together with his
objections. [Record No. 220-1] Because that affidavit tended to support Thompson’s
allegation of an actual conflict, the Court referred the matter back to the Magistrate Judge
for further consideration, including to consider the applicability of Cuyler v. Sullivan, 446
U.S. 335 (1980). [Record No. 225]
Thompson was appointed counsel and an evidentiary hearing was scheduled based
on the newly-filed affidavit. [Record No. 232] The evidentiary hearing was held before
Magistrate Judge Wehrman on March 23 and 34, 2017. [See Record Nos. 250-254.]
Testimony was taken from Thompson as well as from both individuals from whom
affidavits were submitted. [Id.] A Report and Recommendation was issued thereafter.
[Record No. 255] Magistrate Judge Wehrman recommends denial of Thompson’s motion
for lack of evidence of an actual conflict. [Id.] Objections were timely filed by counsel.3

3

On April 14, 2017, the Court received a letter from the defendant’s wife, Sabrina
Thompson, voicing concern that the defendant had been unable to “be part of the objections”
because he had recently been transferred among numerous facilities and was unable to obtain
a copy of the objections or speak with his attorney. [Record No. 257] Ample time has since
passed and the Court has heard nothing further from Thompson, nor has permission been
sought to amend his objections. In the absence of a more specific request or concern, the Court
-4-

[Record No. 256]

The objections assert in a cursory fashion that the Report and

Recommendation is wrong regarding concurrent representation of Thompson and his codefendant Osborne. Thompson argues that there was concurrent representation (Scoville
represented Osborne on state charges while representing Thompson on federal charges),
that it occurred at a critical stage, and that Scoville’s loyalty was divided because of his
desire to have an affair with Osborne’s fiancé (and alleged government witness): Brooklyn
Williams. [Id.] The objections further argue that Scoville’s advice was tainted and that
the Report and Recommendation fails to consider the allegation that Scoville instructed
Thompson to lie about the pill quantity (which, it alleges, is strong evidence of unethical
and constitutionally ineffective assistance). [Id.]
This Court must make a de novo determination of those portions of the Magistrate
Judge’s recommendation to which objections are made.

28 U.S.C. § 636(b)(1)(C).

However, “[i]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
Nevertheless, the Court has examined the record de novo and agrees with the Magistrate
Judge that denial is appropriate.

has no basis to doubt that Thompson is satisfied with the representation provided by his present
counsel (and with the substance of the objections).
-5 

II.
As ably explained in the Report and Recommendation, a defendant claiming
ineffective assistance of counsel must typically show “(1) that his or her attorney ‘made
errors so serious that counsel was not functioning as the counsel guaranteed the defendant
by the Sixth Amendment,’ and (2) that the attorney’s deficient performance was so
prejudicial that it ‘deprive[d] the defendant of a fair trial, a trial whose result is reliable.’”
Harris v. Carter, 337 F.3d 758, 761 (6th Cir. 2003) (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)). This is known as the Strickland standard: errors and prejudice.
However, the Supreme Court has recognized exceptions to the Strickland standard. Under
certain scenarios, defendants are relieved of their burden to show prejudice. See Mickens
v. Taylor, 535 U.S. 162, 176 (2002) (explaining the exceptions as a “needed prophylaxis
in situations where Strickland itself is evidently inadequate to assure vindication of the
defendant's Sixth Amendment right to counsel.”). One such scenario, typified by the case
of Cuyler v. Sullivan, 446 U.S. 335 (1980), is where counsel is laboring under a conflict of
interest. Where a defendant can show that “an actual conflict of interest adversely affected
his lawyer’s performance,” a defendant need not show prejudice.4 Id. at 348. The
confusion lies in what types of conflicts of interest the lower Cuyler standard applies.

4

Under United States v. Cronic, 466 U.S. 648, 658-59 (1984), the presumption of
prejudice also arises in circumstances where: “(1) there exists a complete denial of counsel or
a denial of counsel at a critical stage of the defendant's trial; (2) defense counsel fails to subject
the prosecution’s case to meaningful adversarial testing; or (3) counsel is called upon to render
assistance where competent counsel very likely could not.” See Moss v. United States, 323
F.3d 445, 455 (6th Cir. 2003) (internal quotation marks omitted). A Cronic claim has been
-6 

In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court suggested, without
deciding, that Cuyler may only apply to scenarios where counsel can be shown to have
“actively represented conflicting interests.” Id. at 175 (quoting Cuyler, 446 U.S., at 350).
While the Sixth Circuit has trimmed its application of Cuyler in light of Mickens, in 2003
the Court applied Cuyler to a scenario where counsel had represented a co-defendant during
the pre-indictment stage, and proceeded to represent the defendant during trial, in the same
action. Moss v. United States, 323 F.3d 445 (6th Cir. 2003). However, the Court denied
relief, finding no adverse effect. Id. at 470.
Thompson argues ineffective assistance of counsel both based on the dual
representation of him and his co-defendant Michael Osborne, and based on counsel’s
alleged illicit relationship with Osborne’s fiancé (Shannon “Brooke” or “Brooklyn”
Williams, a potential government witness). The Court finds that, regardless of the standard
applied, Thompson cannot prevail on his conflict of interest claim.
a.

Conflict of Interest Based Upon Concurrent Representation

Warren Scoville was a prominent defense attorney for years preceding his death
and, without question, represented both John Thompson and Michael Osborne (Osborne
being a co-defendant in the underlying criminal case). However, he did not represent them
in the same proceeding. Scoville represented Osborne in a state-court proceeding, and later

labeled “per se” ineffective assistance. See Hunt v. Mitchell, 261 F.3d 575, 577 (6th Cir. 2001).
Thompson does not assert a complete absence of counsel or a denial of counsel during a critical
stage.  
-7 

represented Thompson on unrelated federal charges. 5 Osborne’s state-court charge was
dismissed on August 19, 2013, as established during the evidentiary hearing. [See Record
No. 255 at 3] Thompson and Osborne were indicted on federal charges on August 22,
2013 [Record No. 20], and were arraigned on August 28, 2013 [Record Nos. 39 and 40].
Thompson retained Scoville as counsel, in anticipation of the federal charges, on June 26,
2013. [Record No. 255 at 2] Therefore, Scoville provided concurrent representation, but
only “off-the-record.” [Record No. 255 at n.6]
Despite the period of concurrent representation, the Report and Recommendation
concludes that Cuyler does not apply because “Cuyler covers only cases of ‘joint
representation at trial.’” [Record No. 255 at 11 (quoting Benge v. Johnson, 474 F.3d 236,
244 (6th Cir. 2007))] As a gloss on “joint representation at trial,” the Report and
Recommendation also concludes that, because Scoville did not jointly represent Osborne
and Thompson during a “critical stage” of Thompson’s proceedings, Cuyler does not apply.
[Id.] There is no suggestion of interactions with prosecutors or law enforcement prior to
Thompson being indicted, hence no arguable “critical stage.”6
Thompson argues in his objections “the concurrent representation did occur at a
critical stage of [his] proceedings.” [Record No. 256 at 2 (emphasis added)] He does not

5

Thompson stipulates that the charges were unrelated. [Evid. Hrg. Tr. 03/23/17 at 53-

54]
6

While the term “critical stage” is used in Cronic, 466 U.S. 648, see n.4, supra,
Magistrate Judge Wehrman did not apply Cronic. He instead uses that term only as a
meaningful reference point.
-8-

further elaborate on what counts as a “critical stage.”7 [Id.] Neither will the Court
elaborate, because adopting the “critical stage” language under Cuyler created a potential
conflict under existing Sixth Circuit caselaw. In Moss, the Sixth Circuit applied Cuyler
based on pre-indictment representation of co-defendant, but never opined on whether the
pre-indictment period contained a “critical stage.” 323 F.3d 445.

More recent cases,

applying Cronic, have found pre-indictment stages not to be critical stages. See Kennedy
v. United States, 756 F.3d 492, 493 (6th Cir. 2014) (holding that pre-indictment plea
negotiations,

together

with

pre-indictment

interrogations

and

pre-indictment

identifications, are not “critical stages”). But no definitive answer is necessary here.
Regardless of whether Thompson must show prejudice (Strickland) or adverse effect
(Cuyler), he can show neither based upon only the fact of the off-the-record concurrent
representation. As Magistrate Judge Wehrman states, “[t]here is no evidence that Scoville
altered his representation of Thompson in the federal drug case in any way because of his
representation of Osborne. . .” [Record No. 255 at 13] The state court drug proceeding
was wholly unrelated to the federal prosecution. [See id. at 1-2; Evid. Hrg. Tr. 03/23/17 at
53-54] The representation-conflict nexus is the alleged illicit fee agreement.8 Without the

alleged fee agreement, Thompson’s claim largely evaporates.

7

8

This objection could rightfully be stricken as insufficient. See Howard v. Secretary of
HHS, 932 F.2d 505, 508-09 (6th Cir. 1991).  
It is worth nothing that Thompson argues that Scoville’s “tainted advice and counsel
began as early as [his] initial appearance, through his proffer and into the sentencing phase.”
[Record No. 256 at 2] Therefore, he alleges no adverse impact during the time of the actual
concurrent representation. By the time of Thompson’s initial appearance, Osborne’s state-9-

b.

Conflict of Interest Based Upon Relationship with Government Witness

The gravamen of Thompson’s claim is not that joint or concurrent representation
with Osborne, in and of itself, created a conflict of interest. It is, instead, that Scoville had
an illicit-fee-agreement relationship with Osborne’s then-girlfriend, Shannon Brooklyn
Williams, who was a likely government witness against Thompson. Thompson previously
submitted an affidavit, purportedly sworn to by Williams, that was suggestive of such an
agreement. [Record No. 220-1]
The purported Williams affidavit was, in large part, the trigger for the evidentiary
hearing in this matter. See Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)
(quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996)) (“An evidentiary
hearing is required unless ‘the record conclusively shows that the petitioner is entitled to
no relief.’”). The purported-affidavit suggests, at the very least, that Scoville proposed that
Williams provide him with sexual favors in exchange for his representation of Osborne.
[Record No. 220-1] The purported-affidavit also suggests that Williams was a possible
government witness against Thompson, and that Scoville was aware of this fact. [Id.] The
evidentiary hearing revealed that the affidavit was both substantially false, and that it was
never actually sworn to by Williams, nor was it notarized in her presence.

court charge was dismissed, and Scoville no longer represented Osborne. [Record No. 255 at
3] During Osborne’s initial appearance and arraignment on August 28, 2013, attorney Douglas
Benge was appointed to represent him. [Record No. 40]

- 10  

Osborne testified at the hearing. When pressed on whether he had an agreement (or
even so much as a conversation) with Scoville regarding offering sex with Williams in
exchange for a fee waiver, Osborne answered “No.” Under cross-examination by the United
States, Osborne testified as follows:
Q. … Did [Warren Scoville] ever suggest to you that he have sex with Brook
Williams in exchange for representing you in legal proceedings?
A. I mean, not in front of me, no.
Q. That’s my question to you. So not in front of you?
A. Yes.
Q. Would you have welcomed that in order to save some money?
A. Well, I mean, in the beginning of this, you know, I mean -- you know, I mean,
me, if I could have, you know, had sex with some big fat chick to save myself
some money, I sure would. I can’t say that my girlfriend wouldn’t have. I
wasn’t there, you know, at that time.
Q. Would you have pimped out your girlfriend in order to get a good lawyer,
one of the best lawyers in town?
A. I mean, if it kept me out of prison, I mean, sure. Why not?
Q. You would have pimped her out?
A. Sure. Why not?
Q. Okay. Did you?
A. I mean, I was locked up in state. For all I know -Q. No, did you? Did you have a conversation with Warren Scoville where you
said, hey, if you have sex with my girlfriend, will you waive your fee?
A. No.
[Evid. Hrg. Tr. 03/23/17 at 66-67] Despite Osborne’s attempts to equivocate, he testified
plainly that he had no such fee agreement with Scoville, nor had one ever been discussed, nor
had he any knowledge of a relationship between Scoville and Williams.
Williams testified the following day. She stated, under oath, that no such illicit fee

agreement existed, nor was it ever discussed. [Evid. Hrg. Tr. 03/24/17 at 7-15] Nor had
Scoville ever threaten to take her to the “islands” with him. [Id. at 5] Further, Williams
testified under oath that the only reason she signed the document (filed as an affidavit) is
- 11  

because she was intimidated to do so by two of Thompson’s friends, whom she named.
[Evid. Hrg. Tr. 03/24/17 at 7-10] They brought the document to her home, and pressured

her to sign it. [Id.] Williams never swore to the contents of the statement, nor did she sign
it in the presence of the notary. [Id. at 14] Under direct examination by Thompson’s counsel,
Williams answered as follows:
Q. So the bottom line is, you’re telling me everything in this affidavit is a lie?
A. I’m telling you that there was never a conversation between me and Warren
Scoville that instead of make a payment arrangement for a separate case, for me
to perform sexual favors. No, sir, that never happened. Yes, was John
Thompson in his office at the same time as me? Yeah. But -Q. And I just want to make sure you understand. I’m not insinuating that you
went on a trip with this individual. I’m simply trying to ask, did he propose to
take a trip with you? Did he ask you to take a trip with him?
A. No, sir.
…
Q. So just to pin it down then, where you say that he offered to take the case for
sexual favors, where you signed off on that, you were lying when you signed
that, correct?
A. Yeah. I was intimidated, and I did sign that when the two men come to my
home, yes. No, John Thompson never walked in on a conversation where
Warren Scoville was asking me to perform any sexual favors as his payment for
lawyer fees. That’s what I’m saying.
[Evid. Hrg. Tr. 03/24/17 at 10-11] Williams later discussed installment payments made to
Scoville. [Id. at 11]

Williams’s and Osborne’s testimony that no such fee agreement existed -- or was
even discussed -- fatally undermines Thompson’s claims and testimony to the contrary.
Moreover, while testifying, Thompson recanted the assertion made in his motion that he
“once caught direct sight of counsel and Ms. Williams engaging in sexual activity in
Counsel’s office.” [Compare Record No. 202 at 5 with Evid. Hrg. Tr. 03/23/17 at 36-37]
This concession is also crucially important. Apart from Thompson’s speculation, no
- 12  

evidence was presented to support the allegation that Williams had any type of physical
relationship with Scoville.
Finally, the Assistant United States Attorney prosecuting the underlying case stated
that Williams would not have been called as a witness against Thompson. [Evid. Hrg. Tr.
03/23/17 at 54-56] He stated that he did not believe Williams had admissible evidence to

offer regrading Thompson, and that she would otherwise be unnecessary because of the
availability of the cooperating co-defendant, William Scalf. [Id. at 55] When questioned
by the United States on cross-examination, Williams answered as follows:
Q. If this matter had gone to trial with Mr. Thompson, would you have been in
a position to be a witness to testify as to what type of drugs it was that Mr.
Thompson was selling and the quantity of drugs that he was selling?
A. No, sir.
[Evid. Hrg. Tr. 03/24/17 at 14]

To summarize: there is conclusive evidence that no illicit fee agreement existed or
was ever discussed. Nor had Scoville ever threatened/suggested taking Williams on
vacation with him. There is no evidence to support that any inappropriate relationship ever
existed between Williams and Scoville. And while Williams did provide a statement to
the police that implicated Thompson, there is little evidence to support that she actually
would have been called as a witness.
Following Mickens, it is unclear whether the Cuyler standard applies to cases
involving, “all kinds of alleged attorney ethical conflicts,” such as “romantic
‘entanglement[s]’” or otherwise. 535 U.S. at 174. Before Mickens cast such applications
into doubt, other courts applied Cuyler and found actual adverse-impact conflicts where,
- 13  

for example, defense counsel was in an ongoing intimate relationship with a government
witness. See, e.g., United States v. Harris, 846 F. Supp. 121, 128 (D.D.C. 1994) (finding
an actual conflict where “[d]uring the entire period” that counsel was representing the
defendant, counsel “was involved in an longstanding, adulterous, intimate affair with [a
testifying police officer].”).
Thompson attempts to establish a meritorious claim based on cases such as Harris.
He has gone to great lengths to do so, including obtaining a coerced affidavit. But even if
Harris is still good law on the application of Cuyler, Thompson’s evidentiary basis for this
claim has dissolved. Because he has no evidence to support his claim of counsel’s ethical
quandary, he has no basis for showing an actual conflict and, therefore, cannot escape the
Stickland requirement of showing prejudice. See Mickens, 535 U.S. at 166 (discussing
exceptions to Strickland’s prejudice requirement); Moss v. United States, 323 F.3d 445,
455 (6th Cir. 2003) (same).
There remains one scenario that must be discussed. That is, whether Williams could
have been a government’s witness. Even if no illicit relationship existed, Scoville still
could have had a conflict based on his concurrent-then-successive representation of
Thompson and representation of the boyfriend of a possible witness against Thompson.
While the Assistant United States Attorney stated on the record that Williams would not
have been called as a witness against Thompson, the fact remains that she filed a police
report detrimental to his interest.

- 14  

In Jalowiec v. Bradshaw, 657 F.3d 293, 314 (6th Cir. 2011), the Sixth Circuit found
no prejudice or adverse effect where counsel actually cross-examined a government’s
witness who was a previous client. And this case is two-steps removed from the Jalowiec
scenario. Here, it is not the former client who would testify, but the girlfriend of the former
client. Perhaps more importantly, no testimony ever took place. Thompson’s allegation is
actually that Scoville encouraged him to plead guilty so that Scoville would not face the
possibility of cross-examining someone with whom he was in an illicit relationship.
Absent the illicit-relationship theory, Thompson has not argued how he was actually
prejudiced (or adversely affected) by the possibility that his counsel may have to crossexamine the girlfriend of a former client. With Jalowiec finding no conflict of interest in
a more direct-conflict scenario, it is difficult to imagine why counsel would compel his
client to plead guilty on this basis.
c.

Newly-Asserted Claim

Thompson objects to the Magistrate Judge’s “decision to ‘ignore’ the Defendant’s
testimony regarding Scoville’s unethical conduct and advice.” [See Record No. 256 at 2
(emphasis added).] He points to his testimony that Scoville advised him to lie about the
pill count during the evidentiary hearing which, he argues, was “unethical and
constitutionally ineffective.” [Id.; Evid. Hrg. Tr. 03/23/17 at 56] Magistrate Judge Wehrman
hardly ignored Thompson’s testimony. Instead, he gave it the credibility it deserved.
Pointing out the claim’s curious absence from Thompson’s motion or subsequent
filings, Magistrate Judge Wehrman “[found] it improbable that Thompson could have
- 15  

simply forgotten or omitted a fact as potentially consequential as his attorney directing him
to lie on the stand.” [Record No. 255 at n.9] Thompson’s demeanor on the stand, coupled
with his (admittedly) false previous testimony and the established falsification of an
affidavit, resulted in Magistrate Judge Wehrman’s decision to give no credence to the
assertion. [Id.] Again, the undersigned agrees.
As an initial matter, this ineffective assistance claim is untimely. In 1996 Congress
passed the “Antiterrorism and Effective Death Penalty Act” (“AEDPA”). Among other
things, AEDPA set forth a one-year statute of limitations for bringing claims under 28
U.S.C. § 2255, in part to quell endless post-conviction litigation. This case demonstrates
AEDPA’s wisdom in this regard. Thompson cannot compel the court to adjudicate the
merits of a brand new allegation by raising it in the midst of an evidentiary hearing on a
previous, factually distinct allegation, especially where, as here, the claim is raised for the
first time after the one-year statute of limitations has expired (and well after his trial counsel
has expired).
The procedure for amending a timely § 2255 petition is to file a motion to amend
under Rule 15(c) of the Federal Rules of Civil Procedure. Thompson made no such motion,
and it would likely fail to meet the amendment standard. Such amendment is only
permitted when it “relates back” to the original motion. The claim that Scoville told
Thompson to lie relates to the claims in his earlier motion, at least in as much as it argues
ineffectiveness, including in relations to the evidentiary hearing. But that alone is not
enough. Instead, the new claim must share the “same core facts as the timely filed claims.”
- 16  

Mayle v. Felix, 545 U.S. 644, 657 (2005); see also Wiedbrauk v. Lavigne, 174 F. App’x
993, 1002 (6th Cir. 2006). Thompson asserted as the fourth claim in his 2255 motion that
“Defense Counsel failed to prepare Movant for sentencing and evidentiary testimony. This
Honorable Court even commented at the sentencing hearing that the Movant’s testimony
‘wasn’t convincing to the Court, and his testimony was not logical.’” [Record No. 202 at
8-9] Advising someone to take the stand and lie is factually distinct from failing to prepare
someone to testify.9 Far from being the “same core facts,” Thompson’s new claim raises
a very distinct factual allegation.

So much so that, as Magistrate Judge Wehrman

concluded, it is highly improbable Thompson could have simply forgotten to raise it.
Because Thompson’s new claim lacks credibility and is untimely, it will be denied.
d.

Remaining Claims

Thompsons’s 2255 motion asserts four non-conflict-of-interest-based theories of
ineffective assistance. He argues that counsel failed to investigate “charges, witnesses, codefendants, and evidence” (Count II), that counsel “failed to adequately challenge some, if

9

Moreover, Count II of Thompson’s original motion alleges that counsel failed to
investigate the confidential informant who testified against him, and that person’s motive to
exaggerate the drug quantities. [Id. at 6-7] But Thompson now acknowledges that the
confidential informant’s testimony was accurate. He testified that approximately 10,000 or so
pills were involved . [Evid. Hrg. Tr. 03/23/17 at 11-12 (“I give [Scoville] the truth. . . .
[p]robably 10,000 or so”)] Thompson’s acknowledgement that he was responsible for
“10,000” or so pills validates the Court’s factual finding that Scalf delivered to him a total of
8,750 oxycodone pills. [See Record No. 104 at 5] Having admitted to the accuracy of Scalf’s
testimony, Thompson cannot retain an ineffective assistance challenge for failure to controvert
Scalf’s testimony.
- 17 -

not all of the evidence in relation to the drug quantities, as well as the credibility of the CI”
(Count III), that counsel failed to prepare movant for his testimony and sentencing hearing
(Count IV), that counsel’s “emotionally disturbed state prevented him from effectively
representing Movant” (Count V), and finally, he argues for cumulative error (Count VI).10
[Record No. 202]
Magistrate Judge Wehrman found most of these claims “too generic and conclusory
to warrant §2255 relief.” [Record No. 217 at 4] But regarding Scoville’s advocacy, the
initial Report and Recommendation notes that “counsel vigorously cross-examined codefendant William Scalf at the evidentiary hearing and also presented defendant’s own
testimony at that hearing [Record No. 153], filed a sentencing memorandum asking for a
lenient sentence for defendant [Record No. 116], filed extensive objections to the PSR
[Record No. 145 at 27-29] and orally argued on defendant’s behalf at sentencing. [Record
No. 154].” [Id. at 5]
Thompson’s objection to the initial Report and Recommendation challenges only
the findings with respect to the conflict of interest. [Record No. 220] Thompson has
therefore waived the right to review of the remaining claims. See Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995) (“As long as a party was properly informed of the consequences
of failing to object, the party waives subsequent review by the district court and appeal to
this court if it fails to file an objection.”) Despite Thompson’s waiver (and his fair warning

10

Thompson also alleges, as part of Count I, that he was “forced [] to sign [a] plea
agreement.” [Record No. 202 at 5] There was no written plea agreement. [Record No. 95]
- 18  

of the consequences) it is clear that Thompson’s remaining claims are without merit. To
the extent Thompson argues that he was prejudiced by Scoville’s failure to contravene the
evidence of drug quantity, Scoville in fact did so, and Thompson now admits that the
testimony was accurate. [See Evid. Hrg. Tr. 03/23/17 at 11-12; Record No. 104] In light of
that concession, it is far from clear what any further investigation would have revealed,
and there is simply no basis for cumulative error. Thompson has made no credible
allegations of error on the part of Scoville, nor has he shown that, but for those errors, he
would have received a different sentence. Strickland v. Washington, 466 U.S. 668, 694
(1984)
III.
The factual foundation for Thompson’s conflict of interest claim was fatally
undermined during the evidentiary hearing. His own testimony regarding an illicit fee
agreement was directly contradicted by two of the three individuals allegedly party to the
agreement. Osborne even admitted that he would have been willing to enter into an illicit
agreement, but nonetheless, it was never even discussed. [Evid. Hrg. Tr. 03/23/17 at 6667] Thompson’s newly-raised assertion that counsel instructed him to lie is untimely raised

and otherwise lacks credibility. Finally, Thompson has not only waived the remaining
claims by failing to object, but their merit has been undermined, at least in substantial part,
by his own admission about the accuracy of drug quantities testified presented against him.
Accordingly, his § 2255 motion will be denied.

- 19  

Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court will deny a certificate
of appealability. Thompson has failed to show that reasonable jurists would find this
court’s “assessment of the constitutional claims debatable or wrong” or that reasonable
jurists would find “it debatable whether the petition states a valid claim of the denial of a
constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Being sufficiently advised, it is hereby
ORDERED as follows:
1.

The Magistrate Judge’s September 29, 2016, Report and Recommendation

[Record No. 217] as amended by the March 30, 2017, Report and Recommendation
[Record No. 255] is ADOPTED and INCORPORATED by reference.
2.

Movant John Thompson’s motion to vacate, set aside, or correct his sentence,

pursuant to 28 U.S.C. § 2255 [Record No. 202] is DENIED.
This 3rd day of August, 2017.

- 20