THOMAS v. UNITED STATES OF AMERICA

Filing 16

OPINION. Signed by Judge Susan D. Wigenton on 10/17/2014. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDWIN THOMAS,
Petitioner,
v.
UNITED STATES,
Respondent.

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: Civil Action No. 12-4358 (SDW)
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OPINION
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October 17, 2014

WIGENTON, District Judge.
Before the Court is Petitioner Edwin Thomas’ (“Petitioner” or “Thomas”) motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Motion”). For the
reasons stated below, this Court DENIES Petitioner’s Motion and DECLINES to issue a
certificate of appealability.
FACTUAL AND PROCEDURAL HISTORY
On November 14, 2008, at about 9:00 p.m., Detectives Modesto Miranda and Edward
Vernotica of the Newark, New Jersey Police Department patrolled a public housing
neighborhood in an unmarked vehicle. As twenty-five-year veterans of the police force, the
detectives knew that the neighborhood, which included 30 Ridgewood Avenue, was a high crime
rate area where frequent drug dealings and shootings occurred. The detectives turned into a
backyard parking lot off 30 Ridgewood Avenue. The lot was illuminated by street lights and
several children were observed playing. When the unmarked car approached the parking lot,
someone yelled “5-0.” The detectives observed Thomas about 20 feet away, who dropped a

duffel bag and then approached the detectives. The detectives, who wore plain clothes with their
police badges hanging from their necks, exited their vehicle. They told Thomas to put his hands
on the hood of the car. When Thomas was unable to produce any identification, the detectives
patted down Thomas and placed him in the back seat of the vehicle.
Detective Miranda then moved the unmarked car vehicle to shine its headlights on the
duffel bag. The detectives again exited the vehicle. At that point, Detective Miranda observed
the handle of a gun sticking out of the duffel bag and Thomas was placed under arrest.
Detective Miranda then shone his flashlight on the open portion of the duffel bag and saw
another gun. When the duffel bag was eventually opened by police officers from the Crime
Scene Unit, they recovered a Romarm Cugir 7.62 millimeter semi-automatic rifle and an
Armscor Philippines Model 1600 .22 caliber semi-automatic long rifle.1
On March 4, 2009, an Indictment was issued against Thomas, charging him with a
violation of 18 U.S.C. § 922(g)(1), as a convicted person unlawfully in possession of a firearm.
(United States v. Thomas, Criminal No. 09-cr-00147-SDW, ECF No. 1 – Indictment.) Assistant
Public Defender Lorraine Gauli-Rufo was appointed as counsel for Thomas on March 25, 2009.
(Id., ECF No. 5.) An Order for Discovery and Inspection also was entered the same day. (Id.,
ECF No. 6.)

Thomas now provides an altogether different factual account of the incident. He states that he
was walking to visit a friend when two police officers “accosted” Thomas “at gunpoint.” (Pet.
Mem. at 7, ¶ 3.) The officers observed Thomas carrying a blue duffel bag and asked Thomas
what he was carrying in the bag. Thomas did not respond, but when the officers told Thomas
that they were investigating a murder and asked Thomas if he knew anything about it, Thomas
replied “no.” (Id. at ¶¶ 5-8.) Thomas claims that the officers took the duffel bag from him,
searched Thomas, and placed Thomas in the back of their unmarked car. They asked Thomas for
consent to search the bag and Thomas denied permission. The officers then looked in the bag,
placed it in the trunk, and drove Thomas to the rear of the building where they had stopped
Thomas. Thomas remained in the car and the officers placed the duffel bag in a grassy area of
the buildings. No one else was present, and the officers called for back-up at the scene. (Id., ¶¶
9, 11-17.)

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On June 8, 2009, Gauli-Rufo filed an omnibus motion seeking, inter alia, (1) suppression
of evidence obtained as a result of an unlawful stop and search in violation of the Fourth
Amendment, (2) disclosure of exculpatory evidence under Brady v. Maryland, 373 U.S. 83
(1963), (3) disclosure of evidence to be used under Fed.R.Evid. 404(B), (4) disclosure of expert
reports, (5) disclosure of Jencks Act materials and the preservation of law enforcement notes, (6)
a pre-trial ruling on the admissibility of Thomas’ prior convictions, (7) suppression of statements
made by Thomas, and (8) a hearing to address these issues. A text Order was issued on
September 16, 2009, scheduling a hearing on the omnibus motion for October 15, 2009. The day
before the hearing, the Government faxed a letter to defense counsel summarizing materials it
was required to produce under Giglio v. United States, 405 U.S. 150 (1972). At the October 15,
2009 suppression hearing, this Court, having reviewed the Giglio materials in camera
beforehand, informed the Government that the summary of Giglio materials, as provided to
defense counsel, did not comply with the spirit and intent of the Court’s Order. This Court then
instructed the Government to produce the actual materials, rather than a summary of the facts, to
defense counsel, and the suppression hearing was postponed.
On the night of October 15, 2009, the Government produced the Giglio materials as
directed, and the suppression hearing was conducted on October 19, 2009. Ruling from the
bench, this Court found that there was reasonable suspicion to stop Thomas, and that he had
abandoned his duffel bag containing the two rifles. Accordingly, Thomas’ motion to suppress
the evidence was denied.
On November 9, 2009, a jury trial commenced. During trial, defense counsel twice
moved for a mistrial. On the first occasion, Gauli-Rufo moved for a mistrial when the prosecutor
referred to Thomas’ counsel as a public defender while cross-examining a defense witness. This

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Court denied the motion and provided a curative instruction to the jury. The second motion was
made after the Government delivered its rebuttal closing argument. This motion likewise was
denied. On November 13, 2009, the jury found Thomas guilty.
On February 22, 2010, this Court sentenced Thomas to 85 months in prison with a threeyear term of supervised release, which was within the advisory guidelines range of seventy to
eight-seven months.
On March 1, 2010, Thomas filed a notice of appeal to the United States Court of Appeals
for the Third Circuit. On April 12, 2011, the Third Circuit affirmed the conviction and sentence.
United States v. Thomas, 423 F. App’x 199 (3d Cir. 2011).
On July 5, 2012, Thomas timely filed this § 2255 motion. He claims that he was denied
effective assistance of counsel, in violation of his Sixth Amendment right, because his counsel
advised Thomas that if he asserted ownership of the guns at his suppression hearing, this
evidence would be used against him at trial. Thomas further asserts that counsel advised Thomas
to reject a plea offer and take his case to trial. (ECF No. 1-3, Pet. Mem. of Law at 15-19.)
On May 8, 2013, the Government filed an answer to Thomas’ § 2255 motion. (ECF No
15.)
LEGAL STANDARD
A prisoner in federal custody under sentence of a federal court “may move the court
which imposed the sentence to vacate, set aside or correct the sentence” upon three grounds: (1)
“that the sentence was imposed in violation of the Constitution or laws of the United States;” (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.” 28 U.S.C. § 2255(a).

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In considering a motion to vacate a defendant’s sentence, “the court must accept the truth
of the movant's factual allegations unless they are clearly frivolous on the basis of the existing
record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation marks and
citation omitted). “It is the policy of the courts to give a liberal construction to pro se habeas
petitions.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010). The Court may dismiss the
motion without holding an evidentiary hearing if the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); Liu v.
United States, No. 11-4646, 2013 WL 4538293, at *9 (D.N. J. Aug. 26, 2013) (Simandle, J.)
(citing Booth, 432 F.3d at 545-46).
DISCUSSION
A. Standard Applied on Ineffective Assistance of Counsel Claims
The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. VI. In order
to succeed on his claims alleging ineffectiveness of counsel, Thomas must satisfy the two prong
test of deficient performance and resulting prejudice as set forth in Strickland v. Washington, 466
U.S. 668 (1984). See also Premo v. Moore, 562 U.S. 115, ___, 131 S.Ct. 733, 739, 178 L.Ed.2d
649 (2011) (holding that “[t]o establish ineffective assistance of counsel, a defendant must show
both deficient performance by counsel and prejudice”). First, Thomas must show that his
counsel’s performance (viewed as of the time of counsel’s conduct) was inadequate and “fell
below an objective standard of reasonableness,” in that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed [to] the defendant by the Sixth
Amendment.”

Id. at 687-688.

Thomas must then show that the deficient performance

prejudiced the defense. In other words, Thomas must prove that there was “a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694. See also Rainey v. Varner, 603 F.3d 189, 197-98 (3d Cir. 2010).
The U.S. Supreme Court has reiterated that “[s]urmounting Strickland’s high bar is never
an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 173 L.Ed.2d 284,
297 (2010). Because “[a]n ineffective-assistance claim can function as a way to escape rules of
waiver and forfeiture and raise issues not presented at trial,” the Supreme Court has admonished
lower courts that the “Strickland standard must be applied with scrupulous care . . . .”
Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). “It is ‘all
too tempting’ to ‘second-guess counsel’s assistance after conviction or adverse sentence,’”
however, “[t]he question is whether an attorney’s representation amounted to incompetence
under ‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom.” Id. at 788 (quoting Strickland, 466 U.S. at 690) (internal citations omitted).
In order to pass the prejudice prong, Petitioner must show, with reasonable probability, that but
for the counsel’s professional incompetence, the outcome of the proceeding would have been
different. Strickland 466 U.S. at 694. “It is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding. Virtually every act or omission
of counsel would meet that test.” Id. at 693.
As stated above, Thomas must show both deficiency of performance and prejudice to
prevail on an ineffective assistance of counsel claim under Strickland. Thus, given the interplay
between Strickland and § 2255, if Petitioner shows both elements of Strickland, he satisfies the
requirements of § 2255. U.S. v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014). However, in a
claim of ineffective assistance of counsel, which has both a deficiency and prejudice prong, the

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court may address the prejudice prong first “[i]f it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice.” Id. (citing Strickland 466 U.S. at 697).
B. Ineffectiveness Concerning Issue of Suppression
Thomas first argues that his counsel was ineffective because she advised Thomas not to
admit to possession of the guns because “he would lose at trial if he claimed that the guns
belonged to him.” (Pet. Mem. at 15.) Thomas contends that he had a viable Fourth Amendment
claim of unlawful search based on his allegations that he had possessed the bag when the officers
stopped him, and that Thomas had not given his consent to search the duffel bag. Instead,
counsel made a motion to suppress the guns on the grounds that the search was unlawful due to a
bad stop under to Terry v. Ohio, 392 U.S. 1 (1968). Thomas also claims that counsel pursued a
deficient strategy by presenting witnesses on Thomas’ behalf who were not credible, and by
“fruitlessly tr[ying] to impeach the arresting officers.” (Pet. Mem. at 15.)
In essence, Thomas claims that his counsel pursued the wrong strategy in arguing the
motion to suppress on non-possessory grounds. However, Strickland holds that there is “a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” and that a petitioner “must overcome the presumption that, under the circumstances,
the challenged action might be sound trial strategy.” Strickland, 466 U.S. at 689. Significantly,
effective assistance of counsel does not require an action “‘that is effective in whatever way, and
to whatever extent, the defense might wish.’” Rolan v. Coleman, 680 F.3d 311, 327 (3d Cir.
2012) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).
Here, the defense tactic chosen by counsel does not meet that deficiency standard. Only
through Thomas’ distorted lens of hindsight, admonished by the Supreme Court in Strickland,
466 U.S. at 689, does Thomas now claim that his counsel’s alleged advice was ineffective. This

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Court notes, however, that counsel was successful in excluding several of Thomas’ post-arrest
statements, and that she was able to cross-examine the detectives about their disciplinary records,
as well as providing witnesses at trial who provided testimony in support of Thomas’ defense.
All of this belies Thomas’ contention that Gauli-Rufo rendered deficient performance. Indeed,
possession of the guns was a necessary element of an 18 U.S.C. § 922(g)(1) offense that the
Government had the burden to prove. It would have been imprudent to claim ownership of the
guns on the slim chance that counsel could prevail on a suppression motion based on failure to
give consent, as now suggested by Thomas.
Further, Thomas’ claim that counsel pursued an ineffective strategy is mere speculation
as Thomas has offered no evidentiary support for his contention that a motion to suppress on
possessory grounds would have been successful. The affidavits of purported witnesses were not
provided. Such mere speculation cannot demonstrate counsel’s deficient performance under
Strickland. See, e.g., Palmer v. Hendricks, 592 F.3d 386, 397-98 (3d Cir. 2010) (holding that
speculation is insufficient to demonstrate deficiency).
Moreover, as the Government correctly contends, even if counsel’s strategy for
suppression was deficient, Thomas cannot prove the necessary prejudice to sustain his claim of
ineffective assistance of counsel. First, as noted above, Thomas has failed to show that a
suppression motion on possessory grounds would have been successful. While Thomas alludes
to three witnesses whose affidavits would confirm that he had possession of the duffel bag when
he was stopped by Detectives Miranda and Vernotica, he does not provide these affidavits. Nor
does he show that his testimony at the suppression hearing would have proved effective. His
recitation of the factual circumstances of his stop and search are plainly at odds with Detective
Miranda’s testimony at the suppression hearing concerning the incident. Indeed, Detective

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Miranda’s testimony was corroborated by Detective Vernotica, and Thomas provides no similar
corroboration.

Thus, without any corroboration of Thomas’ account, and given Thomas’

extensive criminal history, it is highly unlikely that this Court would have credited Thomas’
testimony over Detective Miranda’s testimony, even if Thomas had testified at the suppression
hearing as he now argues.
Second, even if Thomas’ testimony at the suppression hearing could not be used against
him at trial on the issue of guilt, see Simmons v. United States, 390 U.S. 377 (1968), it could be
used to impeach him if he chose to testify at trial. Moreover, Simmons would not preclude the
use of testimony at trial of Thomas’ purported witnesses to prove that they saw Thomas in
possession of the duffel bag containing the guns. Such testimony, as the Government states,
would have “put the guns in Thomas’s hand [and] would have been fatal to his defense at trial.”
(Resp. Answer at 12.)
Third, Thomas’ current rendering of events regarding his possession of the duffel bag is
completely opposite of the testimony he elicited at trial, namely, that he never possessed the
duffel bag as he now claims.
Finally, Thomas does not refute that one of the guns was protruding from the bag.
Consequently, even if this Court did credit Thomas’ version of events, suppression would have
been denied because the guns would have been discovered through plain view.
Therefore, the claim of ineffective assistance of counsel concerning the issue of
suppression is denied as substantively meritless.
C. Failure to Advise Acceptance of a Plea Offer
Thomas next contends that his counsel was ineffective because she advised him to reject
a plea offer. The Supreme Court recently held that a defendant's Sixth Amendment right to

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counsel extends to the plea-bargaining process. Missouri v. Frye, ___ U.S. ___, ___, 132 S.Ct.
1399, 1407-08, 182 L.Ed.2d 379 (2012). Thus, a defendant is plainly entitled to the effective
assistance of counsel during plea negotiations. Lafler v. Cooper, ___ U.S. ___, ___, 132 S.Ct.
1376, 1384, 182 L.Ed.2d 398 (2012) (holding that petitioner was prejudiced by trial counsel’s
incorrect advice to reject a plea offer where petitioner then went to trial and received a much
higher sentence). This right, in the plea-bargaining context, encompasses claims that counsel
provided incorrect legal advice that resulted in a defendant rejecting a favorable plea offer.
Lafler, 132 S.Ct. at 1384; Frye, 132 S.Ct. at 1409-10.
Strickland’s two-pronged standard likewise applies in evaluating claims of ineffective
assistance of counsel during the plea process. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct.
366, 369, 88 L.Ed.2d 203, 209 (1985). For instance, deficient performance may be established
by showing that defense counsel failed to communicate a formal plea offer to the defendant.
Frye, 132 S.Ct. at 1408. Under the prejudice prong “a defendant must show the outcome of the
plea process would have been different with competent advice.” Lafler, 132 S.Ct. at 1384.
Thus, if a defendant rejects a plea, he must show that “but for counsel’s deficient performance
there is a reasonable probability he and the trial court would have accepted the guilty plea” and
the resulting sentence would have been lower. Id. at 1391; see also Frye, 132 S.Ct. at 1409;
Shotts v. Wetzel, 724 F.3d 364, 374-76 (3d Cir. 2013); United States v. Booth, 432 F.3d 542, 54647 (3d Cir. 2005).
Here, the Government states that a plea was not offered to Thomas’ counsel, and Thomas
has not shown otherwise. Since no formal plea offer was made, Gauli-Rufo could not have been
ineffective for failing to accept it on Thomas’ behalf. Indeed, in Lafler, the Supreme Court made
clear that there can be no ineffective assistance of counsel claim under Strickland if there is no

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actual plea offer. Lafler, 132 S.Ct. at 1387 (stating that defendants have “no right to be offered a
plea ... nor a federal right that the judge accept it”); see also United States v. Rendon-Martinez,
497 F. App’x 848 (10th Cir. 2012) (observing that “there was no plea offer made here, and
there’s no right to a plea offer”); McClain v. United States, Civil No. 12-2205 (FLW), 2013 WL
1163562, at *4 (D.N.J. Mar. 19, 2013) (same).
The United States Supreme Court has long recognized that “there is no constitutional
right to plea bargain; the prosecutor need not do so if he prefers to go to trial.” Weatherford v.
Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); McClain, supra (commenting
that “[n]either the Sixth Amendment or any relevant case law sets forth an obligation for defense
counsel to seek a plea offer or to counsel his/her client of the benefits and obligations of a
hypothetical offer”) (emphasis in original). Consequently, because Thomas fails to show that he
asked his counsel to explore entering a guilty plea, or that the Government actually made a plea
offer to counsel, this claim must be dismissed.
CERTIFICATE OF APPEALABILITY
For the reasons discussed above, this Court denies a certificate of appealability because
Petitioner has not demonstrated “a substantial showing of the denial of a constitutional right” as
required under 28 U.S.C. § 2253(c)(2). See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct.
1029, 1035, 154 L.Ed.2d 931, 944 (2003).

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CONCLUSION
For the reasons set forth above, this Court DENIES Petitioner’s Motion and DECLINES
to issue a certificate of appealability. An appropriate Order follows.

/s/ Susan D. Wigenton, U.S.D.J.
SUSAN D. WIGENTON
United State District Judge

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