Thomas v. United States of America

Filing 8

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Ozem B. Thomas. The petition is denied. See attached. The Clerk of the Court is directed to close the case. Ordered by Judge Sterling Johnson, Jr on 4/18/2013. (Figeroux, Davina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OZEM THOMAS,
Petitioner,

12 CV 3336 (SJ)

v.
MEMORANDUM
AND ORDER
UNITED STATES OF AMERICA,
Respondent.
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APPEARANCES
Ozem Thomas, # 56217-853, Pro Se
USP Atwater
United States Penitentiary
P.O. Box 019001
Atwater, CA 95301
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
Attorney for the Respondent

JOHNSON, Senior District Judge:
On February 9, 2004, following a jury trial, petitioner Ozem Thomas
(“Petitioner” or “Thomas”) was convicted of all 13 counts charged against him in a
1998 indictment, including three Hobbs Act robberies, seven weapons offenses
related to those robberies, a felon-in-possession charge and a murder in the course of
the commission of a robbery, all in furtherance of his participation the “Criminals

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Gettin’ Paid” crew operating out of East Flatbush. See 18 U.S.C. §§ 1951, 922(g),
922(g); 924 (a)(6)(B)(ii), 924(c)(1), 924(h),

922(x)(1)(A).

This was Thomas’

second trial for these offenses, the first having resulted in a reversal following a
successful challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).
On July 29, 2004, Thomas was sentenced to a term of life imprisonment plus
540 months. Thomas filed a timely notice of appeal and on January 24, 2006, his
conviction was affirmed, but the action remanded in contemplation of resentence
pursuant to United States v. Crosby, 397 F.3d 103 (2005). On April 28, 2006, the
Court reimposed its sentence of life plus 540 months.
Since then, Thomas has made a series of applications with the Court. On
September 7, 2007, he filed a motion to vacate his conviction, pursuant to 28 U.S.C.
§ 2255 (“Section 2255”), arguing that he was deprived effective assistance of
counsel after a juror expressed fear for her safety and counsel failed to request a
more detailed voir dire. See Thomas v. United States, (SJ) 07 CV 3751 Dkt. No. 1
(E.D.N.Y. Sept. 7, 2007). Specifically, at Thomas’ second trial, several witnesses
testified that they became afraid for their lives after testifying in the first trial. One
witness testified that he was stabbed with a box cutter shortly before he testified.
A juror then informed a court employee of her concern with the court’s signin procedure for jury attendance. The Court reassured the juror that she was safe and
inquired whether the juror had spoken to anyone about her fears. The juror reported
that she did not. The juror was excused and no further inquiry was made.

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In rejecting Petitioner’s ineffective assistance claim pursuant to Strickland v.
Washington, 466 U.S. 668 (1984), the Court held that there was no evidence that the
jury deliberated prematurely and that, in any event, Petitioner failed to show
prejudice. See Thomas v. United States, (SJ) 07 CV 3751 at Dkt. No. 9. Thomas
appealed this decision, and on January 7, 2010, the appeal was dismissed.
On September 24, 2010, Thomas filed a motion pursuant to Federal Rule of
Civil Procedure 60(b) or, in the alternative to “reopen” his Section 2255 petition.
The motion was denied in an October 20, 2010 order (the “October 20 Order”)
because Thomas sought to challenge his underlying conviction, while Rule 60(b) is
available in the habeas context only when challenging the integrity of the habeas
proceeding itself. The October 20 Order also informed Thomas that he could pursue
a second or successive Section 2255 petition before the Court of Appeals. See
Thomas v. United States, (SJ) No. 10 CV 4588, at Dkt. No. 2 (E.D.N.Y. Oct. 20,
2010). Thomas appealed that order, and was denied a certificate of appealability on
February 28, 2011.
While that appeal was pending, Petitioner’s co-defendant, James Johnson
(“Johnson”) was resentenced from a term of life to a term of 25 years. Thomas then
filed a petition for writ of audita querela, arguing that his sentence, too, should be
reduced. See Thomas v. United States, (SJ) 11 CV 6047 at Dkt. No. 1 (E.D.N.Y.
Filed Dec. 2, 2011). Because a writ of audita querela is limited to legal objections
brought to light after conviction that are not otherwise redressable pursuant to

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another post-conviction remedy, the petition (which failed to identify any such
objection) was denied in a December 4, 2011 order. Thomas appealed that order and
the Second Circuit dismissed the appeal on June 12, 2012.
The instant Petition followed. Thomas styled the Petition as one pursuant to
Section 2255, but claims that it is not a second or successive petition because he
“does not attack the sentence or conviction” but seeks to reinstate his appellate
rights. (Dkt. No. 1.)

Specifically, Thomas claims that his trial counsel failed to

perfect the appeal of his Crosby resentence, constituting ineffective assistance of
counsel, and that his habeas counsel, too, was ineffective for failing to raise that
same argument in his initial 2255 petition.
To explain the timing of the Petition, Thomas offers the following: “once
petitioner’s Certificate of Appealability was denied petitioner has to study, learn and
try to comprehend a very complex legal system that often demands no less than ten
to fifteen years of constant schooling before some of the best minds could get a
minute understanding of it’s [sic] procedural obligations.” (Id. at 7.)
Thomas’ concerns about the complexity of the applicable procedures need
not detain us long because the procedure here is not complex. As stated in the
October 20 Order, section 2255 contains several gatekeeping provisions, including
strict requirements for bringing successive petitions.

A second or successive motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain (1) newly discovered evidence
that, if proven and viewed in light of the evidence as a whole, would be sufficient
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to establish by clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable.

28 U.S.C. § 2255. Thomas does not dispute that this certification requirement
applies to him. Therefore, the Court will not – and cannot – indulge his new claims.
Thomas is hereby cautioned that a continued pattern of filing of frivolous motions
will be met with an order to show cause why he should not be sanctioned. He is
further advised that sanctions could include monetary sanctions, but in any event, if
imposed, will certainly include a sanction preventing him from submitting any
filings without the Court’s permission. The Court need not tolerate judicial waste in
this time of economic despair, nor abuse of the in forma pauperis status. See, e.g.,
Vey v. Clinton, 520 U.S. 937 (1997) (denying recalcitrant pro se litigant's motion to
proceed in forma pauperis and instructing the Clerk of the Court not to accept any
further petitions without leave of the Court); Martin v. Dist. of Columbia Court of
Appeals, 506 U.S. 1, 3 (1992) (“Every paper filed with the Clerk of this Court, no
matter how repetitious or frivolous, requires some portion of the institution's limited
resources. A part of the Court's responsibility is to see that these resources are
allocated in a way that promotes the interests of justice.”); Viola v. United States,
481 F.3d 30, 31 (2d Cir. 2012) (affirming imposition of leave-to-file sanctions after
petitioner failed to demonstrate that his filings were not frivolous).

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Accordingly, in the interest of justice, the Clerk of Court shall transfer this
motion to the United States Court of Appeals for the Second Circuit pursuant to 28
U.S.C. § 1631. See Liriano v. United States, 95 F.3d 119 (2d Cir. 1996) (per curiam).
This order closes this case. If the Second Circuit authorizes petitioner to proceed in
this matter, he shall move to reopen under this docket number.

SO ORDERED.

Dated: April 18, 2013
Brooklyn, New York

___________/s__________________
Sterling Johnson, Jr., U.S.D.J.

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