THOMAS v. ORTIZ

Filing 11

OPINION. Signed by Judge Jerome B. Simandle on 3/21/2019. (dmr)(n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SHAWN THOMAS,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 16-5875 (JBS)

v.
WARDEN DAVID ORTIZ,

OPINION
Respondent.

APPEARANCES:
Shawn Thomas, Petitioner pro se
1028 Burnside Road
Sharon Hill, PA 19079
Craig Carpenito, United States Attorney
Mark E. Coyne, Chief, Appeals Division
970 Broad Street, Suite 700
Newark, NJ 07102-2535
Attorneys for Respondent David Ortiz
K.T. Newton, AUSA
United States Attorney’s Office
for the Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Of Counsel
SIMANDLE, U.S. District Judge:
INTRODUCTION
Petitioner Shawn Thomas, a/k/a/ Malik Brown, a convicted
and sentenced federal prisoner previously confined at FCI Fort

Dix, New Jersey,1 filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 asserting that he is actually
innocent of his conviction for the use of a firearm during a
drug trafficking crime in violation of 18 U.S.C. § 924(c).
[Docket Entry 3]. He bases his argument on the Supreme Court’s
decision in Rosemond v. United States, 572 U.S. 65 (2014). As
relief, Petitioner requests that his § 924(c) conviction be
vacated. Respondent David Ortiz opposes the petition. [Docket
Entry 8].
The principal issues to be decided are: (1) whether the
Court has jurisdiction under 28 U.S.C. § 2241 to consider
Petitioner’s challenge to the validity of his conviction; and
(2) if so, whether the Supreme Court’s Rosemond decision
requires this Court to vacate Petitioner’s conviction under §
924(c) because the Government failed to prove at trial that he
had advance knowledge that a firearm would be used in connection
with his drug trafficking offense.
The Court concludes that Petitioner is unable to invoke the
savings clause of 28 U.S.C. § 2255(e), but even if he could, the
Rosemond foreseeability standard does not impact his § 924(c)

1

A letter from the United States Attorney’s Office indicates
Petitioner was released from custody on June 25, 2018. [Docket
Entry 10]. Because the petition is a challenge to the validity
of Petitioner’s conviction under 18 U.S.C. § 924(c), the Court
concludes it is not moot based on the collateral consequences of
the conviction. See Sibron v. New York, 392 U.S. 40, 55 (1968).
2

conviction because he was not convicted under an aiding and
abetting theory of guilt but rather as the principal who
possessed the firearm in furtherance of the drug distribution
crime. Therefore, the Court will deny the petition for the
reasons stated below.
BACKGROUND
In January 2010, an Eastern District of Pennsylvania grand
jury issued a superseding indictment charging Petitioner with:
conspiracy to distribute and possess with intent to distribute
cocaine base, 21 U.S.C. § 846 (Count One); distribution of five
grams or more of cocaine base (Count Two), 21 U.S.C. § 841(a)(1)
and (b)(1)(B); distribution of five grams or more of cocaine
base within 1,000 feet of a school, 21 U.S.C. § 860(a) (Count
Three); distribution of 50 grams or more of cocaine base, 21
U.S.C. § 841(a)(1) and (b)(1)(A) (Counts Four & Five);
possession of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Six);
possession of a firearm in furtherance of drug trafficking, 18
U.S.C. § 924(c) (Count Seven); and possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count
Eight). [Docket Entry 8 at 20-29; see also United States v.
Shawn Thomas, No. 08-cr-558 (E.D. Pa. Mar. 25, 2011)]. The
superseding indictment specifically alleged as part of the
manner and means that “[o]n occasion, when defendant SHAWN
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THOMAS sold crack cocaine to a customer, he carried and
possessed a firearm.” [Docket Entry 8 at 21]. The jury convicted
Petitioner on all counts after a bifurcated trial separating the
felon in possession charge, Count Eight, from the rest of
charges. [Id. at 3].
Petitioner filed a motion for judgment of acquittal under
Federal Rule of Criminal Procedure 29, and alternatively for a
new trial under Rule 33, on May 17, 2010. [Motion for Judgment
of Acquittal, Thomas, No. 08-cr-558 (May 17, 2010) Docket Entry
92]. He argued that the United States had failed to prove that
he had possessed a firearm. [Docket Entry 8 at 31]. The
Honorable Gene E.K. Pratter, U.S.D.J., denied the motion on
December 22, 2010. [Docket Entry 8 at 31-36]. See also United
States v. Thomas, No. 08-558, 2010 WL 5256862 (E.D. Pa. Dec. 23,
2010). Petitioner was sentenced to a 180-month term with a
mandatory 60-month consecutive term for the § 924(c) charge.
[Docket Entry 8 at 5]. The sentencing court also imposed a fiveyear supervised release term. [Id.]. Petitioner challenged his §
924(c) conviction again on direct appeal in the United States
Court of Appeals for the Third Circuit. United States v. Thomas,
456 F. App’x 85 (3d Cir. 2011). The circuit court affirmed
Petitioner’s conviction but remanded for resentencing under the
Fair Sentencing Act of 2010. Id. at 88.

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Petitioner filed a motion to correct, vacate, or set aside
his sentence under 28 U.S.C. § 2255 in the Eastern District of
Pennsylvania on February 19, 2013. [Docket Entry 8 at 17; First
Motion to Vacate/Set Aside/Correct Sentence, Thomas, No. 08-cr558 (Feb. 19, 2013) Docket Entry 142]. The § 2255 motion also
challenged his conviction under § 924(c). [Docket Entry 8 at 6].
Judge Pratter denied the § 2255 motion. [Order Denying First
Motion to Vacate/Set Aside/Correct Sentence, Thomas, No. 08-cr558 (May 14, 2013) Docket Entry 150]. The Third Circuit denied a
certificate of appealability, stating “Appellant previously, and
unsuccessfully, argued that there was insufficient evidence to
support his conviction of possession of a firearm in furtherance
of a drug crime in violation of 18 U.S.C. § 924(c), and is not
entitled to relitigate this matter.” United States v. Thomas,
No. 13-2674 (3d Cir. Sept. 26, 2013).2
After the Supreme Court issued its decision in Rosemond on
March 5, 2014, Petitioner filed an application for permission to
file a second or successive § 2255 motion. In re: Shawn Thomas,
No. 16-1783 (3d Cir. filed Apr. 4, 2016); [Docket Entry 3 ¶
10(b)]. The Third Circuit concluded that the Supreme Court had
not made Rosemond retroactive to cases on collateral review and

2

The Court takes judicial notice of this public record.
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denied permission under 28 U.S.C. §§ 2244(b) & 2255(h). Order,
In re: Shawn Thomas, No. 16-1783 (3d Cir. Apr. 20, 2016).
Petitioner subsequently filed this habeas corpus petition
under 28 U.S.C. § 2241 on September 23, 2016.3 [Docket Entry 1].
The Court administratively terminated it as Petitioner had not
used the proper form. [Docket Entry 2]. The Court reopened the
case after Petitioner submitted an amended petition on the
appropriate form. [Docket Entry 3]. The Court ordered Respondent
to answer. [Docket Entry 4]. Warden Ortiz submitted his answer,
[Docket Entry 8], and Petitioner submitted his traverse. [Docket
Entry 9].
The matter is ripe for disposition without oral argument.
Fed. R. Civ. P. 78(b).
STANDARD OF REVIEW
Petitioner brings this petition as a pro se litigant. The
Court has an obligation to liberally construe pro se pleadings
and to hold them to less stringent standards than more formal
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339
(3d Cir. 2011), as amended (Sept. 19, 2011) (citing Estelle v.

3

To the extent this petition is properly filed under § 2241, as
discussed infra, it is properly filed in this District as
Petitioner was confined in FCI Fort Dix, New Jersey at the time
of filing. See Rumsfeld v. Padilla, 542 U.S. 426, 434-35
(2004)(noting that § 2241 petitions must be filed in the
district of confinement).
6

Gamble, 429 U.S. 97, 106 (1976)). A pro se habeas petition and
any supporting submissions must be construed liberally and with
a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Attorney Gen., 878 F.2d 714, 721–22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
Section 2241 “confers habeas jurisdiction to hear the
petition of a federal prisoner who is challenging not the
validity but the execution of his sentence.” Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001). A challenge to the validity of
a federal conviction or sentence must be brought under 28 U.S.C.
§ 2255. See Jackman v. Shartle, 535 F. App’x 87, 88 (3d Cir.
2013) (per curiam) (citing Okereke v. United States, 307 F.3d
117, 120 (3d Cir. 2002)). “[Section] 2255 expressly prohibits a
district court from considering a challenge to a prisoner's
federal sentence under § 2241 unless the remedy under § 2255 is
‘inadequate or ineffective to test the legality of his
detention.’” Snyder v. Dix, 588 F. App’x 205, 206 (3d Cir. 2015)
(quoting 28 U.S.C. § 2255(e)); see also In re Dorsainvil, 119
F.3d 245, 249 (3d Cir. 1997). “This exception is narrow and
applies in only rare circumstances.” Lewis v. Warden Lewisburg
USP, 741 F. App'x 54, 55 (3d Cir. 2018) (citing Bruce v. Warden
Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017)).

7

ANALYSIS
Petitioner invokes the savings clause to challenge his §
924(c) conviction, arguing he is actually innocent of the
offense after the Supreme Court’s Rosemond decision. In
Rosemond, the Supreme Court held that a defendant must have
“advance knowledge” of a firearm’s involvement in a crime before
he may be convicted of aiding and abetting a § 924(c) violation.4
“When an accomplice knows beforehand of a confederate's design
to carry a gun, he can attempt to alter that plan or, if
unsuccessful, withdraw from the enterprise; it is deciding
instead to go ahead with his role in the venture that shows his
intent to aid an armed offense.” 572 U.S. 65, 78 (2014).
The Third Circuit has not addressed whether Rosemond claims
may be filed as § 2241 petitions. See Tawalebah v. Warden Fort
DIX FCI, 614 F. App'x 46, 48 (3d Cir. 2015) (per curiam) (“We
have not yet addressed whether a claim based on Rosemond may be
brought via a § 2241 petition pursuant to the exception we
recognized in Dorsainvil, and we need not do so here because the

4

The Court defined “advance knowledge” for purposes of § 924(c)
as “knowledge at a time the accomplice can do something with it—
most notably, opt to walk away.” Rosemond, 572 U.S. at 78. It
went on to note that “[o]f course, if a defendant continues to
participate in a crime after a gun was displayed or used by a
confederate, the jury can permissibly infer from his failure to
object or withdraw that he had such knowledge.” Id. at 78 n.9.

8

record does not support Tawalebah's claim of innocence.”). See
also McCrea v. Ortiz, No. 17-4501, 2018 WL 1634395, at *3
(D.N.J. Apr. 5, 2018) (citing cases). It is therefore unclear
whether the Court has jurisdiction over the petition under §
2241, but this Court will assume such jurisdiction.
Presently in the Third Circuit, prisoners may use § 2241 to
challenge their sentences after two conditions are satisfied:
(1) there must be “a claim of actual innocence on the theory
that [the prisoner] is being detained for conduct that has
subsequently been rendered non-criminal . . . in other words,
when there is a change in statutory caselaw that applies
retroactively in cases on collateral review,” and (2) “the
prisoner must be ‘otherwise barred from challenging the legality
of the conviction under § 2255.’” Bruce v. Warden Lewisburg USP,
868 F.3d 170, 180 (3d Cir. 2017) (quoting United States v.
Tyler, 732 F.3d 241, 246 (3d Cir. 2013)). “It matters not
whether the prisoner’s claim was viable under circuit precedent
as it existed at the time of his direct appeal and initial §
2255 motion. What matters is that the prisoner has had no
earlier opportunity to test the legality of his detention since
the intervening Supreme Court decision issued.” Id.
This petition under § 2241 fails because Petitioner raised
his Rosemond claim before in an application to the Third Circuit
requesting permission to file a second or successive § 2255
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motion and was denied permission because the Third Circuit
concluded that the Supreme Court had not made Rosemond
retroactive to cases on collateral review. See In re: Shawn
Thomas, No. 16-1783 (3d Cir. filed Apr. 4, 2016). “Section 2255
is not inadequate or ineffective merely because the sentencing
court does not grant relief, the one-year statute of limitations
has expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.” Cradle v.
United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002)
(per curiam) (citing Dorsainvil, 119 F.3d at 251).
However, again assuming the Court does have jurisdiction
under § 2241, Petitioner’s claim fails. Petitioner’s claim fails
because the record shows he was not convicted under an aiding
and abetting standard at trial; rather, he was convicted as a
principal. There is no lingering question about his foreseeing
possession of this firearm when he is the one who possessed it,
as a matter of routine and necessity, as he dealt drugs. The
trial court instructed the jury:
In order to find Mr. Thomas guilty of count seven, you
must find that the Government proved each of the
following two elements beyond a reasonable doubt:
First, that Mr. Thomas committed the crime of conspiracy
to distribute and posses with intent to distribute
and/or possession with intent to distribute and, second,
that he knowingly possessed a firearm in furtherance of
the drug trafficking crime or crimes.
. . . .
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To establish the second element of this particular
offense, the Government has to prove that Mr. Thomas
possessed the firearm in question. To possess means to
have something within your control. The Government does
not have to prove that Mr. Thomas physically held the
firearm; that is, that he had actual possession of it.
As long as the firearm was within his control, he
possessed it. If you find that Mr. Thomas either had
actual possession of the firearm or had the power and
intention to exercise control over it, even though it
was not in his physical possession, that is if he had
the ability to take actual possession of it when he
wanted to do so, then you may find that the Government
has proven possession.
. . . .
Possession “in furtherance of” means for the purpose of
assisting in, promoting, accomplishing, advancing or
achieving a goal or an objective of possession with
intent to distribute a controlled substance.
Mere presence of a firearm at the scene is not enough to
find possession in furtherance of a drug trafficking
crime.
[Docket Entry 8 at 75-77, 111:5-17, 111:22 to 112:9, 113:10-16].
Even though the indictment charged Petitioner with aiding and
abetting the § 924(c) offense, the jury was not given an
instruction on an aiding and abetting theory of liability. “The
government may seek a conviction for a substantive criminal
offense by introducing evidence that a defendant directly
committed the offense or by proceeding on a theory of vicarious
liability . . . .” United States v. Whitted, 734 F. App'x 90, 93
(3d Cir. 2018). “It is immaterial that [defendant] was charged
in the superseding indictment with violating § 924(c) under an

11

aiding and abetting, but not [direct liability], theory.” Id. at
95 n.4. “[T]he function of a federal indictment is to state
concisely the essential facts constituting the offense, not how
the government plans to go about proving them.” United States v.
Edmond, 924 F.2d 261, 269 (D.C. Cir. 1991). The Government was
permitted to pursue an alternative (and more demanding) theory
of guilt as a principal so long as it was supported by the
evidence. As for the instructions, “there cannot be a Rosemond
instructional error because there was never an aiding and
abetting instruction given.” Whitted, 734 F. App'x at 93–94.
As recounted by Judge Pratter in her thorough opinion
denying Petitioner’s post-verdict motion, the evidence presented
at trial was sufficient to convict Petitioner of the § 924(c)
charge:
Among other charges and in addition to the § 924(c)
charge, Mr. Thomas was charged with three counts of
distribution
of
“crack”
cocaine
to
Philadelphia
undercover Officer Richard Gramlich between May 21 and
June 17, 2008. In addition to Officer Gramlich's own
testimony about his discussions with Mr. Thomas, the
jury also heard the actual recorded conversations
between the two of them. Specifically, Officer Gramlich
told the jury that, having purchased “crack” cocaine
from Mr. Thomas, he and Mr. Thomas also discussed the
possible purchase of a firearm from Mr. Thomas. On
another occasion, indeed in connection with Officer
Gramlich's May 21, 2008 “crack” cocaine purchase from
Mr. Thomas outside of Smegy's Bar, in response to Officer
Gramlich's expression of some concern about an
individual in the environs, the jury heard a recording
of Mr. Thomas assuring Officer Gramlich that it was
“cool” given that he [Mr. Thomas] had “a hammer in the

12

car.”5 According to Officer Gramlich, and as confirmed
by recordings of their conversations played for the
jury, there were a number of occasions when the two men
discussed drugs and guns. For example, on May 29, 2008
Mr. Thomas told Officer Gramlich that he had a “.38 snub
nose” that he “rode with” and “needed”, and that this
was something that “you gotta have” when “you making
money and a house.” According to Officer Gramlich, this
exchange meant that Mr. Thomas was saying he had a. 38
caliber snub nose revolver that he as a drug dealer
needed to have.
. . . .
The jury then heard from Officer Gramlich and other law
enforcement personnel about the execution of a search
warrant at the 7506 Algon Avenue apartment on June 17,
2008, during which a Smith & Wesson .38 caliber snub
nose revolver, drug paraphernalia and cocaine base were
recovered. Specifically, the gun was found on top of a
kitchen cabinet where [Mr. Thomas's girlfriend, Audrena
McDaniels] told the officers Mr. Thomas had put it a
week earlier. A digital scale (commonly used in
connection with “crack” packaging preparations for
subsequent distribution) was recovered from the drawer
below the place where the revolver was located. Two
bundles of crack were seized from a child's bag in the
bedroom closet in the apartment.
Thomas, No. 08-558, 2010 WL 5256862, at *1 (first alteration in
original). The trial court found that the jury reasonably
determined that Petitioner “touted his possession of a ‘hammer’
as ‘needed’ in his activities, something his girlfriend Ms.
McDaniels reiterated . . .

and . . . that Mr. Thomas placed his

revolver, drugs and related paraphernalia in the apartment where

5

“Officer Gramlich testified that he understood a ‘hammer’ to be
a gun.” United States v. Thomas, No. 08-558, 2010 WL 5256862, at
*1 (E.D. Pa. Dec. 23, 2010), aff'd, 456 F. App'x 85 (3d Cir.
2011)).
13

he prepared the drug packages for subsequent transactions.” Id.
at *3. As the Third Circuit noted, “the jury readily could have
inferred from the evidence to which the Court referred in its
December 22, 2010 opinion that Thomas possessed the weapon
involved in this case and that he did so in furtherance of his
drug trafficking offenses.” Thomas, 456 F. App'x at 87.
Because Petitioner had prior opportunities to raise his
Rosemond claim and because he was not convicted under an aiding
and abetting standard but as a principal possessing a firearm in
furtherance of his drug distribution activity, the Court denies
the habeas petition.
CONCLUSION
For the reasons stated above, the petition is denied. An
accompanying Order will be entered.

March 21, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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