THOMPSON v. UNITED STATES OF AMERICA

Filing 14

OPINION filed. Signed by Judge Freda L. Wolfson on 3/23/2015. (kas, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EVERT JEROME THOMPSON,

Civil Action No. 12-1312

Plaintiff,
v.

OPINION

UNITED STATES OF AMERICA,
Defendant.

WOLFSON, United States District Judge:
This matter is presently before the Court on a Petition to Vacate, Set Aside or Correct
Sentence (“Petition”) filed by pro se Petitioner Evert Jerome Thompson (“Petitioner”) pursuant
to 28 U.S.C. § 2255, challenging his 150–month sentence imposed for armed robbery and a
related weapons offense. Pursuant to Fed. R. Civ. P. 78, upon review of all submissions, this
matter is decided without oral argument, and for the reasons stated below, the Court dismisses
the Petition with prejudice and denies a certificate of appealability.
I.

FACTUAL BACKGROUND

The Court recounts only the factual background relevant to Petitioner’s petition for relief.
Petitioner is a federal prisoner currently incarcerated at United States Penitentiary, Atlanta,
Georgia. Petitioner was tried before a jury by the Honorable Joel A. Pisano, U.S.D.J., and was
found guilty of armed robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d), as well as using
and/or carrying a firearm during a crime of violence as proscribed by 18 U.S.C. §
924(c)(1)(A)(ii). 1
The relevant facts surrounding Petitioner’s crimes are succinctly stated in the Third
1

The case was reassigned to me on March 10, 2015 after Judge Pisano’s retirement.
1

Circuit’s decision denying Petitioner’s direct appeal:
On September 9, 2008, two persons robbed a Bank of America
located in Iselin, New Jersey, with a Colt .357 revolver. After
fleeing the bank in a stolen black BMW, the two men abandoned
the car and entered into a tan Chevrolet Astro minivan.
Unbeknownst to the robbers, one of the stolen sacks of money
contained a GPS tracking device. The GPS device permitted police
officers to monitor the stolen money's latitude, longitude, direction,
and speed.2
Relying upon transmissions from the GPS device, Detectives Mark
Zeno, Michael Ng, and Walter Bukowski of the Woodbridge
Township Police Department drove in an unmarked car to an
intersection where they expected to intercept the black BMW.
Rather than seeing a black BMW, the detectives observed a tan
Astro minivan traveling the same coordinates as those provided by
the GPS system. Consequently, the detectives proceeded to follow
the minivan. Sergeant Christian Ladaudio of the Woodland
Township Police Department's Special Investigations Unit also
responded in an unmarked black pickup truck. The minivan,
realizing that it was being followed, accelerated to high speeds,
triggering the detectives in the unmarked car to activate its
emergency lights. A high speed chase ensued and concluded with a
collision between the minivan and another vehicle.
The driver exited the damaged minivan and fled the scene on foot.
Sergeant Ladaudio pursued the driver with his vehicle. When the
fleeing suspect jumped a guardrail, Ladaudio took up the chase on
foot. Detective Ng also pursued the suspect on foot. Sergeant
Ladaudio tackled the driver, who turned out to be Thompson, and
Ng assisted in putting on the handcuffs and effectuating the arrest.
Meanwhile, back at the scene of the accident, the passenger in the
minivan, Sharron Graham, was arrested. Inside the minivan, police
officers recovered a white plastic bag containing $31,007.98 in
cash—the exact amount stolen from the bank. Also, police officers
found attire that was worn at the robbery, a loaded Colt .357, a
Radio Shack police scanner, the car key to the BMW, and the GPS
tracking device.
After Graham pleaded guilty to the armed bank robbery, a
superseding indictment was returned against Thompson, charging
him with armed bank robbery and using and/or carrying a firearm
during a crime of violence. Prior to trial, Petitioner moved to
suppress evidence gathered as a result of his arrest and search of
2

It is undisputed that Petitioner was apprehended shortly after the robbery. (See Pet. Reply at 67 (stating that Petitioner was found by police fifteen minutes after the bank robbery).)
2

the minivan. The motion was denied without a hearing. After a
three-day jury trial, Thompson was found guilty on both counts A
jury found Petitioner guilty of both armed robbery in violation of
18 U.S.C. §§ 2113(a) and 2113(d), as well as using and/or carrying
a firearm during a crime of violence as proscribed by 18 U.S.C. §
924(c)(1)(A)(ii).
U.S. v. Thompson, 393 Fed. App’x. 852, 854 (3d Cir. Sept. 13, 2010).
Although the government admittedly had no eyewitnesses placing Petitioner in the bank
or in the original getaway car, it offered expert testimony at trial that identified Petitioner as the
source of DNA recovered from items worn by one of the robbers, including a hat and mask.
(Crim. No. 08-674, No. 58, Trial Test. of Nicole Nicklow, 335:1-368:25). The government also
presented evidence that the shoes worn by Petitioner at the time of his arrest corresponded to the
design, size, and condition of the footprint impressions lifted from the bank counter, though the
expert could not conclusively determine that Petitioner’s shoe made the print on the counter. (Id.
at No. 57, Trial Test. of Michael Scimeca, 253:1-268:12; Trial Test. Michael Smith, 269:1298:24.) 3
At sentencing on October 21, 2009, Petitioner’s counsel argued for downward departures
based on U.S.S.G. 5H1.5, employment record, and U.S.S.G. 5H.6, family ties and
responsibilities. (Oct. 21, 2009 Sen. Tr. 21:20-24:19.) Counsel additionally argued for the Court
to impose the statutory minimum, primarily emphasizing the same factors, i.e., his steady
employment and family ties and responsibilities, as well as his lack of any prior criminal record.
(Id. at 25:9-27:16.) The Court rejected counsel’s arguments for specific downward departures,
and in assessing the §3553(a) factors the Court noted the following:

3

The Court notes that the government failed to append portions of the trial transcripts and
exhibits on which it relies in its brief and did not cite to the particular docket entries or pages in
its citations (see No. 10, R. Br. at 7), leaving the Court to locate the transcripts in order to
evaluate the government’s arguments.
3

By the way, I have been doing this for a long time and I have been
around criminal cases for a lot longer than that and I tell you, I
have never seen more evidence against a defendant in any case
than what I saw in this case. I have never seen more
overwhelming evidence of guilt than what was presented in this
matter. . . .
Id. at 32:14-19. The Court then imposed a mid-range term of 66 months on the first count and
the mandatory minimum sentence of 84 months on the second count, for a total of 150 months.
(Id. at 36:6-20.)
Petitioner filed the instant habeas petition on March 2, 2012, alleging only ineffective
assistance of counsel at sentencing. (No. 1.) Before the government filed its answer, Petitioner
sought leave and filed a supplemental petition, which included an additional claim of ineffective
assistance of counsel at trial and on appeal (see Nos. 2-3; 5-6). The Court advised Petitioner
pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), that he must include all claims
for relief in an all-inclusive petition (No. 8), and Petitioner responded by letter that he “wishe[d]
to have his pleading ruled upon as filed.” (No. 9). The government subsequently filed its answer
(10), and Petitioner filed his Reply. (No. 11.) The issues are now fully briefed and ripe for
decision.
III.

ANALYSIS

Petitioner alleges two grounds for relief in his amended petition. (No. 5.) Specifically,
he contends that his counsel was deficient (1) for failing to sufficiently argue a “reasonable doubt
defense” by stressing the lack of direct evidence against him and (2) for failing to argue for the
statutory minimum and for various downward departures to reduce Petitioner’s sentence. I
address each ground separately.
Title 28, United States Code, Section 2255 permits a court to vacate, correct, or set aside
a sentence

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upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was
without jurisdiction to impose such a sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack. . . .
28 U.S.C. § 2255.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the
right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90
S.Ct. 1441, 25 L.Ed.2d 763 (1970). In order to sustain an ineffective assistance of counsel claim,
Petitioner must establish: (1) deficient performance, and (2) resulting prejudice. See Strickland
v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the
Supreme Court established a two-part test to evaluate ineffective assistance of counsel claims.
The first part of the Strickland test requires a “showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687, 104 S.Ct. 2052 (internal citations omitted). The second part requires
the defendant to show that “there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
The Third Circuit has “reasoned that ‘there can be no Sixth Amendment deprivation of effective
counsel based on an attorney's failure to raise a meritless argument.’” U.S. v. Bui, 769 F.3d 831,
835 (3d Cir. 2014) (citing United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)).
A. Failure to Argue for a “Reasonable Doubt Defense”
In his amended petition, Petitioner contends that “defense counsel was ineffective at trial
and on appeal for not adequately arguing a reasonable doubt defense.” 4 (Am. Pet. at 23.)
Although he acknowledges the “massive amounts of circumstantial evidence” introduced by the
4

Petitioner’s headings have been unbolded to improve readability.
5

government (id. at 25), Petitioner contends that the government never produced “concrete
evidence,” such as eyewitness identification, DNA evidence, or fingerprints, that conclusively
placed Petitioner in the bank during the robbery or in the black BMW (the original getaway
vehicle). (Id. at 23-26.) Petitioner further contends that even though the stolen money and items
used during the robbery were recovered from the vehicle from which Petitioner fled, that
evidence does not conclusively establish that Petitioner robbed the bank and that this evidence
proves only that Petitioner “was found in proximity to the stolen bank money at the time of his
arrest.” (Id.) According to Petitioner, defense counsel permitted the government to introduce an
array of circumstantial evidence without rebuttal and instead focused on issues unrelated to his
defense, such as potential police brutality arising from Petitioner’s arrest. (Id. at 25.) Finally, he
asserts that counsel’s performance was deficient because “the weightier evidence” suggested that
an individual other than Petitioner committed the robbery (Id. at 23), but Petitioner’s petition is
devoid of any factual description or details about that alleged evidence. In response, the
government contends that the evidence against petitioner, albeit circumstantial, was
overwhelming and was more than sufficient to sustain his conviction.
In considering the instant petition, this 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) (citing Government of the Virgin Islands v.
Forte, 865 F.2d 59, 62 (3d Cir.1989). A petitioner raising an issue regarding the effectiveness of
his attorney must, however, allege specific facts in support of his claim. A petition for 2255
relief cannot rest upon vague and conclusory allegations. United States v. Thomas, 221 F.3d
430, 437 (3d Cir. 2000) (vague and conclusory allegations are insufficient for a section 2255
petition); Johnson v. United States, 294 F. App'x 709, 710 (3d Cir.2008). See also Rule 2(b)(2)

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of the rules governing section 2255 proceedings (“[t]he motion must ... “state the facts
supporting each ground” for relief). A district court may dispose of such allegations without
further investigation. Thomas, 221 F.3d at 437. It might also consider an amendment that
supplies the necessary specificity. Id. at 436; see also Mayberry v. Petsock, 821 F.2d 179, 185
(3d Cir. 1987) (“[B]ald assertions and conclusory allegations” are insufficient to support a claim
and may be dismissed without a hearing), cert denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d
362 (1987).
Having reviewed relevant portions of the trial record, the Court is skeptical that Petitioner
could establish deficiency. Even assuming, however, that Petitioner’s counsel was deficient in
failing to rebut the government’s case by stressing or emphasizing the absence of direct
evidence, along the lines detailed in Petitioner’s amended habeas petition, Petitioner cannot
establish prejudice because the overwhelming circumstantial evidence is more than sufficient to
sustain Petitioner’s convictions on the armed robbery and related weapons charges.
After the bank robbery, an activated GPS tracking device in the stolen money allowed
police to track the location of the money, and the coordinates of the GPS device matched the
coordinates of a van driven by Petitioner. Thompson, 393 Fed. App’x. at 854. Petitioner led
police on a high speed chase and fled on foot after crashing the van. Id. The van itself contained
the stolen money, the gun used in the robbery, and items worn by the robbers during the robbery.
(Id.) Contrary to Petitioner’s claim, the government also presented expert testimony showing
that DNA from the hat and mask worn during the robbery belonged to Petitioner (Crim. No. 08674, No. 58, Trial Test. of Nicole Nicklow, 335:1-368:25), and a footprint impression on the
bank counter corresponded to the shoes worn by Petitioner when he was apprehended. (Id. at
No. 57, Trial Test. of Michael Scimeca, 253:1-268:12; Trial Test. Michael Smith, 269:1-

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298:24.)5 This evidence, albeit circumstantial, is more than sufficient to sustain Petitioner’s
convictions.
The Court notes that Petitioner’s habeas petition proceeds from the faulty premise that
circumstantial evidence is inherently unreliable and that a conviction can only be sustained by
direct evidence. That argument has been soundly rejected by both the Third Circuit and the
United States Supreme Court. “Inferences from established facts are accepted methods of proof
when no direct evidence is available so long as there exists a logical and convincing connection
between the facts established and the conclusion inferred.” U.S. v. McNeill, 887 F.2d 448, 450
(3d Cir. 1989) (citing United States v. Bycer, 593 F.2d 549, 551 (3d Cir. 1979)). “The fact that
evidence is circumstantial does not make it less probative than direct evidence.” Id.; see also
Desert Palace, Inc. v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (“[W]e
have never questioned the sufficiency of circumstantial evidence in support of a criminal
conviction, even though proof beyond a reasonable doubt is required.”) (Holland v. United
States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954) (observing that, in criminal cases,
circumstantial evidence is “intrinsically no different from testimonial evidence”)); United States
v. Giuliano, 263 F.2d 582, 584 (3d Cir.1959) (holding that circumstantial evidence alone is
sufficient to sustain a criminal conviction)). “And juries are routinely instructed that ‘[t]he law
makes no distinction between the weight or value to be given to either direct or circumstantial
evidence.’” Desert Palace, 539 U.S. at 100 (citing 1A K. O'Malley, J. Grenig, & W. Lee,
Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed.2000); 4 L. Sand, J. Siffert, W.

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Petitioner’s suggestion that the weightier evidence suggested that a different person committed
the robbery is wholly unsupported. Given that Petitioner was already permitted to amend his
petition once and he subsequently indicated that he wished to have his petition ruled on as
submitted (Nos. 5, 8), this Court declines to permit further amendment to address this deficiency.
8

Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions ¶ 74.01 (2002) (model
instruction 74–2)).
Here, even if Petitioner could establish that his defense counsel did not adequately pursue
a reasonable doubt strategy by failing to stress the absence of direct evidence, Petitioner cannot
meet the second prong of Strickland due to the overwhelming nature of the evidence against him.
The fact that the evidence is largely or even wholly circumstantial is of no moment. Thus the
instant ground for relief is denied with prejudice.
B. Failure to Argue for the Statutory Minimum and Downward Departures
In his habeas petition, Petitioner also contends that
Defense counsel was ineffective at sentencing for failing to argue
for a low-end of the guidelines sentence pursuant to 18 U.S.C. §
3553(a) and for not adequately arguing for a downward variance
from Petitioner’s guideline range due to the various factors
articulated in United States sentencing guideline § 5K2.0 and in
light of Gall v. United States, 128 S.Ct. 586 (2007), et al.
(No. 5-1, Am. Pet. at 8-9)
From the outset, his position that counsel failed to argue for the low-end of the guidelines
is flatly contradicted by the sentencing transcript, which make clear that Petitioner’s counsel did
argue for the minimum sentence. (October 21, 2009 Sen. Tr. 25:7-12.)
Petitioner also contends that counsel was ineffective because he failed to move for
numerous downward departures. Specifically, he contends that counsel should have sought a
litany of downward departures, summarized below:
1. Petitioner’s criminal history (or lack thereof) overstates his
propensity to commit crimes.
2. To enable Petitioner to be eligible for counseling or other
rehabilitative Programs
3. Petitioner’s manifested “super” acceptance of responsibility6
4. Prosecutor’s manipulation of the charges

6

Petitioner withdrew this ground in his Reply. (No. 11, Reply, at 7.)
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5. Prosecutor’s or defense counsel’s misconduct prejudiced
Petitioner’s plea bargaining
6. Delay in arrest or charge
7. Petitioner’s vulnerability to victimization in prison
8. Petitioner has extraordinary physical impairment or bad health7
(Am. Pet. at 8-23.) As explained by the Third Circuit, “familiarity with the structure and basic
content of the Guidelines ... has become a necessity for counsel who seek to give effective
representation.” United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992).8 “[D]epartures are an
important part of the sentencing process because they offer the opportunity to ameliorate, at least
in some aspects, the rigidity of the Guidelines themselves.” United States v. Gaskill, 991 F.2d
82, 86 (3d Cir. 1993). The Court of Appeals for the Third Circuit has thus held that “[f]ailure to
argue for an appropriate downward departure may constitute ineffective assistance of counsel.”
DeJesus v. U.S., No. 08-1158, 2008 WL 2945959, at *5 (D.N.J. Jul. 30, 2008) (citing United
States v. Headley, 923 F.2d 1079, 1083-84 (3d Cir. 1991)); see also Rolon v. United States, Civ.
No. 03-3902, No. 01-583, 2006 U.S. Dist. LEXIS 58492, at *24 (D.N.J. Aug. 21, 2006).
Counsel is not ineffective, however, “for failing to raise every conceivable argument at
sentencing, regardless of lack of merit.” Amponsah v. U.S., No. 08–114, 2009 WL 900732, at *6
(D.N.J. Apr. 2, 2009); see also Ross v. District Attorney of the County of Allegheny, 672 F.3d

7

Petitioner describes this list as “abridged” rather than “exhaustive.” (Am. Pet. at 12.) As
explained below, because Petitioner states no facts warranting these or other downward
departures, the Court declines to consider whether any additional downward departures apply.
8

Before the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 234, 125 S.Ct.
738, 160 L.Ed.2d 621 (2005), the federal Sentencing Guidelines had “the force and effect of
laws.” Booker “held unconstitutional that portion of the Guidelines that made them mandatory,”
Rita v. United States, 551 U.S. 338, 354, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), “and replaced
the mandatory regime with one in which the Guidelines are ‘effectively advisory.’ “United States
v. Merced, 603 F.3d 203, 213 (3d Cir. 2010) (quoting Booker, 543 U.S. at 245). For a sentence
entered after Booker, a sentencing court must “‘consider the Guidelines range,’ pursuant to §
3553(a)(4), but also ‘tailor the sentence in light of other statutory concerns’ reflected in the
sentencing factors of § 3553(a).” Merced, 603 F.3d at 213 (quoting Booker, 543 U.S. at 245).
10

198, 211 n. 9 (3d Cir. 2012) (“counsel cannot be deemed ineffective for failing to raise a
meritless claim”) (quoting Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000)).
With regard to Petitioner’s first ground for departure – that his criminal history (or lack
thereof) overstates his propensity to commit crimes – it is undisputed that Petitioner had no prior
criminal history, a fact repeatedly emphasized by defense counsel at sentencing and noted by the
Court. (See Tr. 5:11-13.) As such, Petitioner’s criminal history was a category I, the lowest
possible category. Under U.S.S.G. § 4A1.3, a downward departure for Criminal History
Category I is prohibited. See id. (A departure below the lower limit of the applicable guideline
range for Criminal History Category I is prohibited.) Thus, Petitioner could not have received
this particular downward departure.
Petitioner has offered no facts whatsoever to indicate that his counsel was deficient for
failing to argue the remaining downward departures. See Rule 2(b) (2) of the rules governing
section 2255 proceedings (“[t]he motion must . . . “state the facts supporting each ground” for
relief); Thomas, 221 F.3d at 437. Because Petitioner must articulate facts to support his claims
for the various downward departures, and because counsel cannot be ineffective for failing to
raise every conceivable argument, even if meritless, the instant ground for habeas relief is
likewise denied with prejudice.9

9

In his Reply brief, Petitioner raises a new argument for relief pursuant to Missouri v. Frye, ––
U.S. ––––, ––––, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012). In a conclusory fashion,
Petitioner alleges that “defense counsel’s failure to fully advise Petitioner of the plea offer that
was presented to him by the government prior to trial, as well as the full ramifications of refusing
to accept that offer, constituted clear and unquestionable ineffective assistance of counsel.” (No.
11, at 11-12.) Although Petitioner suggests that he could not have raised this issue earlier (No.
11, at 12), he in fact had several earlier opportunities to raise the Frye issue. He filed his
amended habeas Petition on June 8, 2012 (Nos. 5-6), several months after the Supreme Court
issued its decision in Frye. Subsequently, on August 8, 2012, the Court gave Petitioner notice of
his right to amend his petition to include any additional grounds within 30 days under United
States v. Miller, 197 F.3d 644 (3d Cir. 1999). (No. 8.) Again, Petitioner did not raise the Frye
11

C. Certificate of Appealability
Petitioner has not made a substantial showing of the denial of a constitutional right.
Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See
Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
IV. CONCLUSION
For the reasons set forth above, Petitioner’s petition is DISMISSED with prejudice and
the Court denies a certificate of appealability.

/s/
Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.

Date: March 23, 2015

issue, but instead responded by letter on August 24, 2012 and stated that he wished to have his
petition ruled on as filed. (No 9.) The government then filed its Answer on October 19, 2012.
(No. 10.) By raising a new issue on Reply, Petitioner deprived the government of the
opportunity to respond to his arguments. “Basic fairness requires that an opposing party have a
fair notice of his adversary’s claims.” Soto v. U.S., No. 04-2108, 2005 WL 3078177, at *6
(D.N.J. Nov. 16, 2005). Under these circumstances, the Court declines to consider Petitioner’s
Frye argument at this late date. See Rodriguez v. U.S., No. 04-158, 2005 WL 2007033, at *9 n7
(D.N.J. Aug. 22, 2005) (“This Court shall not permit Petitioner to incorporate and adopt an
additional claim in a reply brief at the eleventh hour, particularly where, pursuant to a Miller
order from this Court, he was advised that all of his claims must be presented in one § 2255
motion.”); see also United States v. Martin, 454 F.Supp.2d 278, 281 n3 (E.D. Pa. 2006)
(declining to address issues raised for the first time in petitioner’s reply to government’s
opposition to § 2255).

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