Cain v. USA

Filing 4

ORDER by District Judge Ronald A. White denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) and declining to issue a certificate of appealability (See also CR-18-44-RAW) (tls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.
TJ CAIN,
a/k/a THOMAS J. CAIN,
Defendant/Movant.

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Criminal Case No. CR-18-44-RAW
Civil Case No. CV-22-11-RAW

ORDER
Now before the court is the pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence (“§ 2255 motion”) filed by Defendant TJ Cain, a/k/a Thomas J. Cain
(“Defendant”). [CR Doc. 142; CV Doc. 1]. The Government filed a response in opposition to
Defendant’s § 2255 motion. [CR Doc. 147]. Defendant did not file a reply. Also before the
court is Defendant’s motion for appointment of counsel. [CR Doc. 148].
On April 11, 2018, a federal grand jury charged Defendant with felon in possession of
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (e). The jury was unable to reach a
unanimous verdict, and this court declared a mistrial on July 20, 2018. [CR Doc. 50]. Defendant
was represented by Donn F. Baker in the first trial. Mr. Baker underwent quintuple bypass
surgery on July 28, 2018. [CR Doc. 59].
On August 14, 2018, a federal grand jury charged Defendant with one count of felon in
possession of firearm (“Count 1”), and one count of felon in possession of ammunition (“Count
2”), both in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (e). An unopposed motion to
withdraw was filed by Mr. Baker on August 16, 2018, which was granted, and Martin G. Hart
entered an appearance for Defendant on August 22, 2018. 1 [CR Docs. 59, 60, and 61]. A second
jury found Defendant guilty on both counts.

1

Mr. Baker departed this life on November 12, 2020. https://nafusa.org/2020/11/formerus-attorney-donn-f-baker-dies-71/ (last visited March 7, 2025).

A presentence investigation report (“PSR”) was prepared by the probation office. The
PSR provided the following information:
On September 29, 2017, at approximately 0500 hours, officers with the Stilwell,
Oklahoma, Police Department received a report of a man identified as T.J. Cain
shooting at a home from his vehicle. During the investigation in this matter, it
was reported that following an altercation at that residence, Cain fired one round
from his vehicle into the air and then left the area in his vehicle, a white Chevrolet
1500 pickup. A short time later, officers observed a vehicle matching the
description of the suspect vehicle and attempted to initiate a traffic stop. The
vehicle, however, did not stop, and a pursuit ensued. The suspect vehicle crashed
in a ditch near the intersection of East 814 Road and North 4680 Road in Stilwell,
and a male subject identified as T.J. Cain, who was described as wearing blue
jeans and a dark colored hat, exited the vehicle with a handgun in his hand and
fled on foot. One of the officers pursued Cain on foot as he ran into a
pasture/field area.
During the foot pursuit, gun fire was exchanged between Cain and one of the
police officers. An estimated ten rounds were fired by Cain and six rounds were
fired by the police officer. According to testimony presented during the Jury Trial
in this matter as the officer was chasing Cain through the pasture/field area, Cain
turned toward the officer and discharged the firearm in the direction of the officer,
firing one round. The officer returned fire. Cain then fired multiple rounds. The
officer again returned fire. Cain went to the ground momentarily and then got
back up and began walking toward a wooded area. While walking at an angle,
Cain turned again toward the officer and fired additional rounds from a onehanded grip. During the exchange, Cain was shot in the leg but continued to flee.
Cain was apprehended approximately thirteen hours later in a wooded area
northwest of the intersection. He was described as being pale in color, lethargic,
appearing to have lost a lot of blood and be in a state of “shock”. As officers took
Cain into custody, they asked him where the gun was, to which he responded that
he didn’t know and that he had thrown it. Cain was placed under arrest and
transported by ambulance to a local hospital due to his injuries.
Within approximately five feet of the location where Cain was apprehended,
officers recovered a dark colored ball cap and a Tanfoglio .40 caliber Witness
model pistol with magazine, bearing serial number MT12307. The firearm was
observed with the slide locked backwards, indicating it had been emptied via
discharge.
Nine (9) rounds of assorted brand .22 caliber ammunition – five (5) rounds of
Remington brand ammunition and four (4) rounds of CCI brand ammunition –
were recovered from the center console of Cain’s vehicle. Also recovered from
the vehicle was a wooden pipe with burned residue, a glass smoking pipe and
mail in the name of [Defendant’s deceased mother].
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Cain has been previously convicted of felony drug and firearm offenses in
Washington County, Arkansas, Adair County, Oklahoma, and the United States
District Court for the Northern District of Oklahoma; thereby, prohibiting him
from possession of firearms and ammunition.
The firearm recovered in this matter was submitted to the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) for examination and analysis. It was
determined to be a S&W .40 caliber semi-automatic pistol, Model Witness-P,
bearing serial number MT12307, manufactured in Italy by Tanfoglio. Through a
firearm trace, ATF agents determined the firearm had been stolen from a
residence in Stilwell, Oklahoma, in the Fall of 2017; however, the owner did not
make a police report for the stolen firearm. The ammunition recovered in this
matter was also submitted to the ATF for identification and was determined to
have been manufactured outside the State of Oklahoma.
[PSR at ¶¶ 11-17].
Mr. Hart filed four objections to the PSR, which were overruled at the sentencing hearing
on May 16, 2019. [CR Doc. 112 at 1]. The court ordered the PSR to be revised (e.g., to reflect
the dismissal of Adair County charges) and found the PSR with revisions would form the factual
basis for sentencing. [CR Doc. 112 at 1; CR Doc. 133 at 24]. The court dismissed Count 2 (the
ammunition count), on the Government’s motion, “to avoid multiplicity.” [CR Doc. 112 at 2;
CR Doc. 114; CR Doc. 133 at 23]. Defendant was sentenced to 120 months of imprisonment on
Count 1, to be served consecutively to the term of imprisonment imposed by this court in a
revocation case, EDOK Criminal Case No. CR-16-00096-RAW. [CR Doc. 112 at 1]. Judgment
was entered on May 20, 2019. [CR Doc. 117]. Defendant filed an appeal, asserting that his
confession was involuntary and his waiver of his Miranda rights was invalid. See United States
v. Cain, 800 Fed.Appx. 672, 673 (10th Cir. Apr. 7, 2020) (unpublished). Defendant conceded
that “he never moved to suppress the evidence of the confession and the firearm that resulted
from it,” and argued “that the admission of that evidence was plain error.” Id. The Tenth Circuit
affirmed this court’s judgment. Id.
Defendant now argues in his § 2255 motion that “his trial attorney failed to file a motion
to suppress.” [CR Doc. 142 at 4]. He reminds the court that he had two jury trials, and that
neither attorney filed a motion to suppress. Id. Defendant claims “the second attorney stated it
was not part of either attorney’s trial strategy.” Id. Defendant asserts that Mr. Hart, the attorney
in the retrial, “completely relied on the theory of defense from the first attorney.” Id. He further
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contends that “Mr. Hart did not conduct any independent investigation or interview any
witnesses” and that Defendant’s “due process rights were violated.” Id. He claims that the
“Miranda and Due Process violations were raised [on direct appeal] but because the issues were
not litigated below, they were precluded from review on direct appeal.” Id.
In response, the Government concedes that Defendant’s § 2255 motion is timely, but
otherwise asserts that the motion is without merit and should be dismissed. [CR Doc. 147 at 4].
The Government contends that the claims in Defendant’s § 2255 motion are procedurally barred.
Id. The claims, however, appear to be based on ineffective assistance of counsel, and the
procedural default rule does not apply to ineffective assistance of counsel claims. See Massaro
v. United States, 538 U.S. 500, 504 (2003).
The Government also argues that Defendant cannot establish ineffective assistance of
counsel. [CR Doc. 147 at 6]. The Government contends that “[t]he testimony complained of did
not involve police coercion and did not affect the outcome of the jury’s decision,” and that
Defendant’s attorneys “understandably omitted filing a motion to suppress because the record
would not support one.” Id. at 8. In addition, the Government asserts that “Mr. Hart clearly
knew from the first trial the facts of the case, the evidence to be presented, and the proposed
testimony of the witnesses,” that “Mr. Baker presented a fully-formed theory” in the first trial to
explain the crime, and that “Mr. Hart had limited incentive to undermine Mr. Baker’s
conclusions.” Id. at 9. The court will address the merits of Defendant’s ineffective assistance of
counsel claims.
The Sixth Amendment gives criminal defendants the right to effective assistance of
counsel, and claims of ineffective assistance of counsel are governed by the familiar two-part test
announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Under the Strickland v. Washington standard, Defendant must demonstrate that (1) the
representation was deficient because it fell below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance prejudiced the defense. Id., 466
U.S. at 687. Regarding the first prong, the Strickland Court provided the following guidance:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
4

adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.
Id. at 689 (internal citation omitted). With respect to the second prong, the Supreme Court
explained a defendant “must show that there is a reasonable 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. This
court “may address the performance and prejudice components in any order, but need not
address both if [Defendant] fails to make a sufficient showing of one.” Foster v. Ward, 182 F.3d
1177, 1184 (10th Cir. 1999). “Surmounting Strickland’s high bar is never an easy task.” Padilla
v. Kentucky, 599 U.S. 356, 371 (2010). “Strickland does not guarantee perfect representation,
only a reasonably competent attorney.” Harrington v. Richter, 562 U.S. 86, 110 (2011) (citations
and internal quotation marks omitted).
Referring to when he was ultimately apprehended, Defendant claims “[t]he involuntary
confession and the gun were obtained by coercive police pressures that violated [his] Due
Process rights and Miranda.” [CR Doc. 142-1 at 24]. He argues that “[t]rial counsel’s failure to
move to suppress the confession and the gun violated [his] Sixth Amendment right to the
effective assistance of counsel.” Id. The court disagrees.
Three individuals saw Defendant in possession of a firearm. Two of the witnesses
testified that they saw Defendant discharge a firearm outside a home in the early morning hours
of September 29, 2017. [CR Doc. 131 at 30-33, 53-57]. The police were called. Id. at 34, 55.
Later in the trial, Officer Darrel Dugger, one of the officers who responded to the call, testified
that he was in pursuit of Defendant when the rear tires of Defendant’s truck “caught gravel and it
spun out.” Id. at 84. The officer then “pinned [his] patrol unit against that vehicle trapping it
there” in a ditch. Id. at 84. The officer exited his vehicle and was using a flashlight as he
approached the front passenger side of Defendant’s truck. Id. at 84-85. The officer testified that
Defendant opened “his driver side door with his left hand, and then he reached across his seat
and I watched him grab a handgun out of the seat.” Id. at 86. Defendant exited the truck,
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jumped a gate, and started running across a hayfield.

Id. at 86-88.

The officer chased

Defendant, and Defendant “turned and fired a round” at the officer. Id. at 88-89, 113. The
officer and Defendant exchanged gunfire, and at one point, the officer heard Defendant scream
as he went to the ground. Id. at 91-92. It was still dark at that time before daybreak, and after
turning off his flashlight and lying on the ground for a moment, the officer “ran back towards
[his] patrol unit to radio for backup and get [his] long rifle to go back and see if [the officers]
could find him safely.” Id. at 92. Defendant moved to a different location but was eventually
found and arrested later that day. Officer Dylan Marshall, an officer present at the time of
Defendant’s arrest, testified as follows:
Q: Did you notice anything unusual, or any injury about that person?
A: He appeared to not be moving. He appeared to really not be very conscious at
the time as if he might have been injured in some way.
Q: And did you see any injury at some point?
A: Yes, I saw a large amount of blood on his leg.
Q: Okay. Did you inquire of him any questions?
A: Yes. Whenever Deputy Ketcher was placing him in handcuffs after he read
him his Miranda rights, I asked him where the gun was that he supposedly had.
Q: Okay. Did he indicate where the gun was?
A: Yes. Not verbally, but he moved his head kind of motioning towards another
area of the thicket.
Q: Did you look in that area?
A: Yes.
Q: What did you observe?
A. I observed a handgun laying on the ground.
[CR Doc. 131 at 232].
The Government argues, and the court agrees, that “[t]he firearm would have been
inevitably discovered once Defendant was located and the thicket where he was found was
searched.” [CR Doc. 147 at 8]. Under the inevitable discovery doctrine, “illegally obtained
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evidence may be admitted if it ‘ultimately or inevitably would have been discovered by lawful
means.’” United States v. Christy, 739 F.3d 534, 540 (10th Cir. 2014) (quoting Nix v. Williams,
467 U.S. 431, 444 (1984)). In the case at hand, the firearm was “[w]ithin approximately five feet
of the location where Cain was apprehended.” PSR at ¶ 14. The Government further contends
that Defendant’s firearm conviction would have occurred regardless of whether testimony about
his head nod was admitted or not. [CR Doc. 147 at 15]. The argument is persuasive. As noted
above, several individuals clearly testified that they saw Defendant in possession of a firearm.
Finally, even if suppressing the firearm would have changed the jury’s verdict on Count 1,
Defendant would have been found guilty of Count 2 for the “[n]ine (9) rounds of assorted brand
.22 caliber ammunition” recovered from the center console of Defendant’s vehicle. PSR at ¶ 15.
And he was still facing a 120-month sentence under Count 2. In sum, Defendant has not shown
the inaction of not filing a motion to suppress was so unreasonable that it fell outside the wide
range of professionally competent assistance under Strickland.

Defendant was also not

prejudiced by his counsel’s failure to file a motion to suppress.
Defendant also asserts that Mr. Hart did not conduct any independent investigation or
interview any witnesses. Defendant, however, does not assert what information would have been
discovered had counsel conducted such investigation or interviews, nor does Defendant explain
how he was prejudiced by these alleged failures of counsel. Mr. Hart stated in his affidavit that
he relied on the theory of defense and evidence presented by Mr. Baker in the first jury trial.
[CR Doc. 142-1 at 25]. Mr. Hart affirmed that he “ordered and reviewed the previous trial
transcript, the preliminary hearing transcript from the related state court case and all law
enforcement reports.” Id. Mr. Hart further asserted that he “did attempt to interview additional
witnesses to ascertain who else had access to the involved truck in an attempt to account for the
ammunition that was found in the console of the truck . . . .” Id. Like Mr. Baker at the first trial,
Mr. Hart was well-prepared and had a good grasp of the facts at the second trial. In addition, Mr.
Hart’s objections to the PSR, though overruled, were detailed (totaling 24 pages with
attachments), and he argued vigorously on behalf of Defendant at the sentencing hearing. Again,
Defendant’s claims of ineffective assistance of counsel fail both prongs of the Strickland
standard and must be denied.

7

Lastly, Defendant filed a motion for appointment of counsel. [CR Doc. 148]. Though a
district court may appoint counsel under 18 U.S.C. § 3006A, Defendant’s claims are not legally
or factually complex. Defendant’s request for counsel should be denied.
A certificate of appealability may issue only if Defendant has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court denies a
§ 2255 motion on the merits, a defendant “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Upon consideration, this court finds that the standard has
not been satisfied. This court hereby declines to issue a certificate of appealability.
Defendant’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence [CR
Doc. 142; CV Doc. 1] is hereby DENIED. 2 Pursuant to Rule 11(a) of the Rules Governing
Section 2255 Proceedings, this court hereby declines to issue a certificate of appealability.
Defendant’s motion for appointment of counsel [CR Doc. 148] is DENIED.
It is so ordered this 10th day of March, 2025.

__________________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

2

The motion, files and records of this case conclusively show that Defendant is entitled to
no relief. Thus, no evidentiary hearing was held.
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