Thompson v. USA (TWP1)

Filing 9

MEMORANDUM OPINION: Petitioner's § 2255 motion to vacate [Doc. 1] will be DENIED and DISMISSED. The Court will DENY issuance of a certificate of appealability. A separate judgment will enter. Signed by District Judge R Leon Jordan on March 30, 2020. (copy mailed to Abigail Thompson c/o FCI Tallahassee) (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ABIGAIL B. THOMPSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Nos. 3:17-CV-307; 3:15-CR-107

MEMORANDUM OPINION
Petitioner Abigail B. Thompson has filed a pro se motion to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. [Doc. 1]. 1 The United States has responded
in opposition to the motion [doc. 5], and Petitioner has filed no reply. The matter is now
ripe for resolution.
The Court finds the materials submitted, together with the record of the underlying
criminal case, conclusively show that Petitioner is not entitled to relief on the claims
asserted. Accordingly, the Court will decide this matter without an evidentiary hearing.
See 28 U.S.C. § 2255(b). For the reasons discussed below, the Court finds that Petitioner’s
motion to vacate is without merit and, thus, will deny and dismiss the motion with
prejudice.

1

All docket references are to Case No. 3:17-CV-307 unless otherwise noted.

I.
Background
On July 21, 2015, a federal grand jury issued a 32-count indictment charging
Petitioner and 35 co-defendants with various offenses. [Case No. 3:15-CR-107. Doc. 3].
Petitioner was named in nine of those counts.
In November 2015, Petitioner entered into a plea agreement with the government.
[Id., docs. 440-441]. Petitioner agreed to plead guilty to four of the nine charged counts:
Count One (conspiracy to distribute 50 grams or more of methamphetamine); Count Two
(conspiracy to conduct money laundering); Count 18 (felon in possession of ammunition);
and Count 19 (possession of a firearm in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)).
The plea agreement (signed by Petitioner and her attorney) provided that the
remaining counts—including a second 924(c) charge—would be dismissed at the time of
sentencing upon motion by the United States. The plea agreement also set forth the
mandatory minimum sentences applicable to Petitioner—240 months on Count One
“[b]ecause of the defendant’s prior felony drug conviction,” and a mandatory consecutive
60-month sentence on Count 19. [Case No. 3:15-CR-107. Doc. 440, p.1-2]. Additionally,
the plea agreement provided that Petitioner was waiving the right to appeal her conviction
or sentence with the exception of “the right to appeal a sentence imposed above the
sentencing guideline range determined by the Court or above any mandatory minimum
sentence deemed applicable by the Court, whichever is greater.” [Id., p.14].
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On December 16, 2015, the Honorable Thomas W. Phillips conducted a change of
plea hearing. 2 At that hearing, Judge Phillips confirmed that Petitioner understood the
charges to which she was pleading guilty, including the mandatory 240-month term for
Count One “because of the Defendant’s prior felony drug conviction,” and the mandatory
consecutive 60-month term for Count 19. [Case No. 3:15-CR-107. Doc. 1271, p. 11, 13,
20, 22]. Judge Phillips made clear “that the Government’s not made any agreement to
recommend a particular sentence in your case and that your sentence will be determined
by the Court after considering the applicable sentencing guidelines and other information
relevant to your case.” [Id., p. 25-26]. Petitioner verbalized that she understood. [Id.,
p.26]. Judge Phillips also confirmed Petitioner’s understanding that she was “waiving the
right to file a direct appeal of your conviction or sentence, except that you do retain the
right to appeal a sentence imposed above the guideline range or above any mandatory
minimum sentence. . . . In other words, Ms. Thompson, you understand that by pleading
guilty in your case you’re giving up your right to appeal either your conviction or your
sentence.” [Id., p. 24-25]. Petitioner again verbalized her understanding. [Id., p. 25].
On August 1, 2016, Judge Phillips conducted Petitioner’s sentencing hearing,
imposing a below-guidelines met sentence of 270 months’ imprisonment. At that hearing,
Judge Phillips specifically inquired whether Petitioner had adequate time to go over her
Presentence Investigation Report (“PSR”) with her attorney. Defense counsel stated that

2

Prior to that hearing, the United States filed a notice of intent to seek increased punishment, pursuant to
21 U.S.C. § 851, due to Petitioner’s prior felony drug conviction. [Case No. 3:15-CR-107, doc. 442].

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he had gone over the PSR with Petitioner, and Petitioner confirmed that she had seen the
PSR and had enough time to review it with her attorney. Judge Phillips again confirmed
that a sentence of at least 300 months was mandated by statute, and he confirmed that
Petitioner’s net restricted guideline range was 300 to 322 months.
Petitioner’s below-guideline (and below mandatory minimum) sentence was the
product of the United States’ three-level motion for downward departure pursuant to 18
U.S.C. § 3553(e). Judge Phillips stated on the record that this reduction was due to
Petitioner’s substantial assistance. Lastly, Judge Phillips again summarized the appellate
waiver provisions of the plea agreement. He also told Petitioner that if she wished to appeal
and “[i]f you so request, the clerk of this Court shall prepare and file a notice of appeal on
your behalf.”
Petitioner did not file a direct appeal. Instead, she submitted this timely pro se §
2255 motion to vacate on July 18, 2017, alleging several five claims of ineffective
assistance of counsel.
II.
Standards of Review
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error
of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the entire proceeding invalid.”
Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States,
334 F.3d 491, 496–97 (6th Cir. 2003)). To warrant relief under 28 U.S.C. § 2255 because
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of constitutional error, the error must be one of constitutional magnitude which had a
substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Jefferson v. United States, 730
F.3d 537, 549-50 (6th Cir. 2013) (applying Brecht test to § 2255 motion). A petitioner
“must clear a significantly higher hurdle than would exist on direct appeal” to secure
collateral relief. United States v. Frady, 456 U.S. 152, 166 (1982); Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 166).
“[A] pro se petitioner’s section 2255 motion is entitled to a generous construction.”
Fields v. United States, 963 F.2d 105, 109 (6th Cir. 1992). Nevertheless, when a movant
files a § 2255 motion, she must set forth facts which entitle her to relief. Green v. Wingo,
454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States, 285 F.2d 733, 735 (6th Cir.
1961). A motion that merely states general conclusions of law without substantiating
allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th
Cir. 1959).
When a § 2255 movant claims she was denied her Sixth Amendment right to
effective assistance of counsel, a court must presume that counsel provided effective
assistance, and the movant bears the burden of showing otherwise. Mason v. Mitchell, 320
F.3d 604, 616-17 (6th Cir. 2003). To meet that burden, a movant must prove that specific
acts or omissions by her attorney were deficient and that the attorney failed to provide
“reasonably effective assistance,” which is measured by “prevailing professional norms.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), “[T]he constitutional right at issue
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here is ultimately the right to a fair trial, not to perfect representation.” Smith v. Mitchell,
348 F.3d 177, 206 (6th Cir. 2003) (citing Strickland). A court’s “role on habeas review is
not to nitpick gratuitously counsel’s performance. Smith, 348 F.3d at 206.
Next, a petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome,” id., and “requires a substantial, not just conceivable, likelihood
of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal
quotation marks omitted). The prejudice test is modified in the context of a guilty plea—
a petitioner “must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Yet, “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Strickland, 466 U.S. at 691. Furthermore, if “it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice .
. . that course should be followed.” Id. at 697.
A petitioner alleging ineffective assistance of counsel bears “a heavy burden of
proof.” Pough v. United States, 442 F.3d 959, 966 (6th Cir. 2006) (citation omitted).
“Surmounting Strickland’s high bar is never an easy task . . . and the strong societal interest
in finality has ‘special force with respect to convictions based on guilty pleas.’” Lee v.

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United States, 137 S. Ct. 1958, 1967 (2017) (quoting Padilla v. Kentucky, 559 U.S. 356,
371 (2010), and United States v. Timmreck, 441 U.S. 780, 784 (1979)).
III.
Discussion
A. Claim One
Petitioner first claims that her attorney was ineffective because, “He said that
because I signed a plea, that I couldn’t appeal. I was unable to get him to contact me after
sentencing.” [Doc. 1, numbered p.5]. Petitioner further states that “I was unable to file the
proper paperwork for an appeal, because I was incarcerated in numerous county jails and
had no contact to the outside in order to get in touch with any attorney. [Id.]. Petitioner
then seems to contradict that statement by further complaining that counsel “would not
return any calls to my Power of Attorney,” indicating that Petitioner was indeed in contact
with an agent outside of jail. [Id.].
The seminal Supreme Court case on a failure-to-appeal claim of ineffective
assistance is Roe v. Flores-Ortega, 528 U.S. 470 (2000).

The Roe court applied

Strickland’s framework in reaching its decision, id. at 476-77, meaning that both
components of the Strickland test apply to assertions that counsel failed to file an appeal.
Id. at 477. Thus, under Roe, to establish that counsel rendered a deficient performance,
Petitioner must show either (1) that counsel disregarded her instructions to file a notice of
appeal or (2) that counsel failed to consult with her regarding an appeal when he knew or
should have known that Petitioner might want to appeal. Id. at 478.
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“[A] defendant’s actual ‘request’ is still a critical element in the Sixth Amendment
analysis.” Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998); accord Campbell v.
United States, 686 F.3d 353, 359 (6th Cir. 2012) (observing that “if counsel had ignored the
defendant’s express instruction to file an appeal, such action amounts to a per se violation
of the Sixth Amendment” (internal quotation marks omitted), and at 360 (determining
whether petitioner has given “express instructions to proceed with an appeal” is a pivotal
factual issue in resolving the claim); cf. Regalado v. United States, 334 F.3d 520, 526 (6th
Cir. 2003) (failure to file an appeal is not ineffective assistance where the attorney was not
specifically instructed so to do).
The Court finds no assertion that Petitioner made an explicit request for counsel to
file an appeal. While the Court must charitably construe Petitioner’s failure-to-appeal
claim, the Court is not obligated to read into her pleading a factual assertion that is not
actually there. See Spence v. United States, 68 F. App’x 669, 671 (6th Cir. 2003) (“This
standard, however, has limits and does not require the court to speculate about basic facts
that could easily be alleged by the petitioner.”); accord Pliler v. Ford, 542 U.S. 225, 231
(2004) (instructing that “the Constitution [does not] require judges to take over chores for
a pro se defendant that would normally be attended to by trained counsel as a matter of
course . . . or to perform any legal ‘chores’ for the defendant that counsel would normally
carry out”) (internal citations omitted) (alteration in original); O’Malley, 285 F.2d at 735
(observing that a petitioner who files a § 2255 motion must articulate facts entitling him to
relief) (listing cases).
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Petitioner has alleged no facts to show that she instructed her attorney to appeal
(such as, for example, at the sentencing hearing). The question then becomes whether
Petitioner’s counsel had a duty to consult with her about an appeal. Roe, 528 U.S. at 478.
Although, there is no “bright-line rule that counsel must always consult with the defendant”
about an appeal, a duty to consult exists “when there is reason to think either (1) that a
rational defendant would want to appeal . . . or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” Id. at 480.
The duty-to-consult determination hinges on “all the information counsel knew or
should have known.” Id. One highly relevant factor to consider is whether the conviction
is obtained at trial or by means of a guilty plea, “because a guilty plea reduces the scope of
potentially appealable issues” and may signify that a defendant seeks to terminate the
judicial proceedings. Id. Another pertinent factor is whether the plea expressly waived
appeal rights. Id. Yet another circumstance that might indicate that a rational defendant
might want to appeal is whether there are nonfrivolous grounds for appeal. Id.
Here, Petitioner fails to allege any nonfrivolous grounds for appeal, and the record
discloses no such grounds. Similarly, neither Petitioner nor the record reveals any reason
why she, in particular, would have an interest in an appeal. Petitioner pled guilty and did
not assert her right to trial. Further, Petitioner entered into a plea agreement that contained
a provision waiving her right to file an appeal, with certain exceptions not relevant here.
Those waivers were twice explained to Petitioner by Judge Phillips.

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Because there are no factual assertions in the pleadings from which to conclude that
counsel’s duty to consult was triggered—indeed, the facts suggest the opposite since
Petitioner pled guilty and waived her right to appeal—the Court finds that this claim of
ineffective assistance merits no relief. See Wingo, 454 F.2d at 53 (vague conclusory
statements, denuded of allegations of specific facts, fail to state a viable § 2255 claim.
Nor would counsel have been ineffective if he in fact told Petitioner that she could
not appeal. Judge Phillips made clear at sentencing that Petitioner was receiving a prison
sentence lower than both her guideline range and her mandatory minimum. Petitioner was
also twice informed by Judge Phillips that she had waived the right to appeal under those
circumstances. Counsel would not have been ineffective in providing Petitioner that very
same correct information. 3
For these reasons, Petitioner’s first claim merits no relief.
B. Claim Two
Next, Petitioner claims that her attorney provided ineffective assistance when he
told her that
I would get some relief for substancial [sic] assistance at my sentencing [sic].
Therefore, I was expecting to be allowed points off of my guidelines. There
was none taken off. I was led to beleive [sic] there would be, and I could
have been sentenced below my guidelines.
[Doc. 1, numbered p.6]. This claim is wholly without merit. The United States did file a
substantial assistance motion and, as a result, Judge Phillips did impose a below-guidelines
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Further, Judge Phillips nonetheless advised Petitioner that the Clerk of Court would file an appeal on her
behalf if so requested.

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sentence. This issue was plainly discussed by both the prosecutor and the judge at
Petitioner’s sentencing hearing. Petitioner’s attorney, again, was not ineffective for giving
her correct information.
C. Claim Three
Petitioner next alleges that her attorney showed “no interest” in her case because he
did not obtain a “counter plea” or allow her “to look at or go over my PSR before
sentencing.” [Doc. 1, numbered p.8].
“A guilty plea is open to attack on the ground that counsel did not provide the
defendant with ‘reasonably competent advice.’” Cuyler v. Sullivan, 446 U.S. 335, 344
(1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-71 (1970)). In the guilty-plea
context, the Supreme Court employs the same two-part standard for ineffectiveness that
was developed in Strickland. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). That is, a
petitioner must demonstrate that (1) her attorney's performance was outside the range of
competence demanded of attorneys in the criminal context, and (2) the professionally
unreasonable performance prejudiced her.
Petitioner has not claimed that her plea was based on inaccurate advice or
inappropriate pressure from her attorney.

Instead, she claims that her counsel was

constitutionally ineffective because she now believes she could have secured a better deal
if only her counsel had been a better or more active negotiator. However, the law is wellsettled that dissatisfaction with a plea deal does not rise to a showing of constitutionally
ineffective counsel. See, e.g., Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998)
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(“[W]hile [petitioner] may later have decided that he could have done better, his
dissatisfaction does not rise to a showing of constitutionally ineffective counsel”); United
States v. Parker, 609 F.3d 891, 895 (7th Cir. 2010) (“[W]hether a petitioner ‘could have
negotiated a better plea deal is irrelevant in the ineffective assistance context.’”) (quoting
Bethel v. United States, 458 F.3d 711, 720 (7th Cir. 2006)).
Further, at the change of plea hearing, Petitioner advised Judge Phillips that she had
reviewed the plea agreement, that she had fully discussed her case with counsel, that she
was satisfied with counsel’s representation, and that she was pleading guilty because she
was, in fact, guilty. Additionally, a criminal defendant has “no constitutional right to plea
bargain.” Weatherford v. Bursey, 429 U.S. 545, 561 (1977). The government was under
no obligation to offer a more lenient plea.
Finally, Petitioner “cannot satisfy the prejudice prong in the absence of any
statement that [s]he is actually innocent, or would have gone to trial if [her] attorney's
performance had been different.” Hunter, 160 F.3d at 1115. She makes neither claim. She
does not allege she is innocent of these charges, nor does she claim that she would have
decided to proceed to trial but for her counsel’s allegedly deficient negotiations.
As for Petitioner’s claim that counsel was ineffective by not allowing her to review
her PSR, that allegation is directly contradicted by Petitioner’s statements at her sentencing
hearing. There, she told Judge Phillips that she had seen her PSR and had been allowed
sufficient time to review it with her attorney.
For all these reasons, Petitioner’s third claim entitles her to no relief.
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D. Claim Four
Petitioner next alleges that her attorney previously represented a co-defendant’s
mother and might have also previously represented that co-defendant “at another time.”
[Doc. 1, numbered p.9]. To succeed in such a claim, a petitioner must demonstrate that her
attorney “actively represented conflicting interests and that an actual conflict of interest
adversely affected [her] lawyer’s performance.” Wilson v. Parker, 515 F.3d 682, 697-98
(6th Cir. 2008) (citations and internal quotations omitted). A petitioner must
point to specific instances in the record to suggest an actual conflict or
impairment of [her] interests. . . . [She] must demonstrate that the attorney
made a choice between possible alternative courses of action, such as
eliciting (or failing to elicit) evidence helpful to one client but harmful to the
other. If he did not make such a choice, the conflict remained hypothetical.
. . . There is no violation where the conflict is irrelevant or merely
hypothetical; there must be an actual significant conflict.
United States v. Hopkins, 43 F.3d 1116, 1119 (6th Cir. 1995) (citation and internal
quotations omitted).
Petitioner in this case presents nothing beyond speculation. Absent the necessary
factual elaboration of her attorney’s alleged conflict, the Court finds that the strong
presumption of effective assistance required by Strickland defeats Petitioner’s fourth
claim. See Strickland, 466 U.S. at 689 (instructing that “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance”).

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E. Claim Five
Lastly, Petitioner contends that her attorney was ineffective in failing to inform her
that the United States had filed a § 851 notice. If true, Petitioner still has not established
prejudice. In her plea agreement and at her change of plea hearing, Petitioner was told that
she would be subject to a higher mandatory minimum of 240 months on Count One of the
Indictment due to her prior felony drug offense. Petitioner’s fifth claim accordingly fails.
IV.
Conclusion
For the reasons discussed in this Memorandum Opinion, Petitioner’s § 2255 motion
to vacate [Doc. 1] will be DENIED and DISMISSED.
V.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if a petitioner has demonstrated
a “substantial showing of a denial of a constitutional right.” Id. The district court must
“engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473 (2000). Id.
A petitioner whose claims have been rejected on the merits satisfies the
requirements of § 2253(c) by showing that jurists of reason would find the assessment of
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the claims debatable or wrong. Slack, 529 U.S. at 484. Having examined each of
Petitioner’s claims under the Slack standard, the Court finds that reasonable jurists could
not find that the dismissal of those claims was debatable or wrong. Therefore, the Court
will DENY issuance of a certificate of appealability.
A separate judgment will enter.
IT IS SO ORDERED.
ENTER:

s/ Leon Jordan
United States District Judge

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