Thompson v. USA

Filing 7

Memorandum Opinion and Order : The court ORDERS that Thompson's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 8/7/2017) (edm)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FU.ED
r---·········

I

IN THE UNITED STATES DISTRICT c URT
AUG - 72017
NORTHERN DISTRICT OF TEXAS
i
.I
FORT WORTH DIVISION
CLERIC, U.S. DISl'RlCT COURT
BY-----;=;::---Deputy

IVORY LEE THOMPSON,

§
§

Movant,

§
§

vs.

§

UNITED STATES OF AMERICA,

§
§

NO. 4:17-CV-484-A
(NO. 4:14-CR-195-A)

§

Respondent.

§

MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion of Ivory Lee Thompson
("Thompson")
to 28 U.S.C.

to vacate, set aside, or correct sentence pursuant
§

2255. Having reviewed the motion, the government's

response, the entire record, and applicable legal authorities,
the court concludes that the motion should be denied.
I.
Background
On December 11, 2014, Thompson pleaded guilty to the offense
of felon in possession of a firearm in violation of 18 U.S.C.

§§

922(g) (1) and 924(e). CR Doc. 1 66; CR Doc. 74 at 26. Thompson
moved to withdraw his guilty plea on January 8, 2015. CR Doc. 49.
After a hearing held January 16, 2015, the court denied
Thompson's motion. CR Doc. 55. On April 3, 2015, Thompson

'The "CR Doc. "references are to the number of the item on the docket in Criminal Action No.
4:14-CR-195-A.

received an above-guidelines sentence of 120 months'

imprisonment

to be followed by a three-year term of supervised release. CR
Doc.

66. The United States Court of Appeals for the Fifth Circuit

affirmed the judgment and the Supreme Court denied certiorari.
United States v. Thompson, 637 F. App'x 176 (5th Cir.), cert.
denied, 137 S. Ct. 86

(2016). The government does not dispute

that Thompson has timely filed the instant motion under

§

2255.

II.

Grounds of the Motion
Thompson raised three grounds for relief. First, Thompson
challenged the court's application of USSG

§

2K2.1(a) (4), arguing

that his prior conviction for burglary of a habitation was not a
predicate "crime of violence." Second, Thompson claims
ineffective assistance of counsel by advising Thompson to
withdraw a pending motion to suppress and enter a guilty plea
without having first subpoenaed and reviewed the dashcam video
from the arresting officer. Third, Thompson contends that
Amendment 798 to the Sentencing Guidelines should retrotactively
apply to his case because "his sentence was not yet final when
the amendment was passed and he is on [§] 2255." Thompson also
argues in passing that counsel was ineffective for failing to
raise the first and third grounds on appeal.

2

III.

Pertinent

§

2255 Principles

After conviction and exhaustion of any right to appeal,
courts are entitled to presume that a defendant stands fairly and
finally convicted. United States v. Frady, 456 U.S. 152, 164-65
(1982); United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir.

1991).
Section 2255 does not offer recourse to all who suffer trial
errors. It is reserved for transgressions of constitutional
rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice. United States v. Capua,

656 F.2d 1033,

1037 (5th Cir. Unit A Sept. 1981). In other words, a writ of
habeas corpus will not be allowed to do service for an appeal.
Davis v. United States, 417 U.S. 333, 345 (1974). Further, if
issues •are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
collateral attack." Moore v. United States, 598 F.2d 439, 441
(5th Cir. 1979)
517-18

(citing Buckelew v. United States, 575 F.2d 515,

(5th Cir. 1978)) .

3

IV.
Analysis
A.

The Sentencing Guidelines Ground
Thompson challenges the court's application of USSG

§

2K2.1(a) (4). Misapplication of the Sentencing Guidelines,
however, is not cognizable on collateral review. United States v.
Williamson, 183 F.3d 458, 462
Vaughn,

955 F.2d 367, 368

(5th Cir. 1999); United States v.

(5th Cir. 1992)

(per curiam). In any

event, Thompson's claim fails on the merits, as the United States
Court of Appeals for the Fifth Circuit recently held that
burglary of a habitation is a crime of violence under the
Guidelines for purposes of
F. App'x

§

2K2.1. United States v. Hernandez,

, 2017 WL 2544529, at *1 (5th Cir. Jun 9, 2017)

(citing United States v. Uribe, 838 F.3d 667, 670-01 (5th Cir.
2016), cert. denied, 137 S. Ct. 1359 (2017)).
Thompson's invocation of Mathis v. United States and its
progeny is unavailing. 136 S. Ct. 2243

(2016). Mathis is not

retroactively applicable to cases on collateral review. See In re
Lott, 838 F.3d 522, 523 (5th Cir. 2016)

(mem.); cf. United States

v. Morgan, 845 F.3d 664

(holding that Descamps v.

(5th Cir. 2017)

United States, 133 S. Ct. 2276

(2013) was not made retroactive to

cases on collateral review)). Thompson is not entitled to the
relief he seeks.
4

Thompson's counsel was not ineffective for failing to
challenge the court's application of§ 2K2.1(a) (4) on appeal. An
ineffective assistance of counsel claim cannot be based on "[a]n
attorney's failure to raise a meritless argument." United States
v. Kimbler, 167 F. 3d 889, 893
B.

(5th Cir. 1999).

The Ineffective Assistance of Counsel Ground
To prevail on an ineffective assistance of counsel claim,

movant must show that (1) counsel's performance fell below an
objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687

(1984); see also

Missouri v. Frye, 566 U.S. 133, 146-50 (2012).

"[A] court need

not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies. • Strickland, 466 U.S. at 697; see also
United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000).

"The

likelihood of a different result must be substantial, not just
conceivable,• Harrington v. Richter, 562 U.S. 86, 112

(2011), and

a movant must prove that counsel's errors •so undermined the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.• Cullen v.
Pinholster, 563 U.S. 170, 189 (2011)
5

(quoting Strickland, 466

U.S. at 686). Judicial scrutiny of this type of claim must be
highly deferential and movant must overcome a strong presumption
that his counsel's conduct falls within the wide range of
reasonable professional assistance. Strickland, 466 U.S. at 689.
Stated differently, the question is whether counsel's
representation amounted to incompetence under prevailing
professional norms and not whether it deviated from best
practices or most common custom. Premo v. Moore, 562 U.S. 115,
122

(2011).
Thompson claims that counsel was ineffective by advising him

to withdraw a pending motion to suppress and plead guilty without
having first subpoenaed and reviewed the dashcam video from the
arresting officer. Thompson argues that he would have been
successful on the motion to suppress had counsel obtained and
reviewed the dashcam video.
Counsel advised Thompson that he did not think they would be
successful on a motion to suppress. CR Doc. 75 at 8. That view
did not change after counsel obtained and reviewed videos the
night before Thompson's rearraignment hearing. See id. at 9. At
the hearing on Thompson's motion to withdraw guilty plea, the
court found that counsel's advice was reasonable. Id. at 8.
Thompson has not met his high burden to show otherwise. The court
finds that counsel's conduct falls well within the wide range of
6

reasonable professional assistance afforded under Strickland. 466

u.s.

at 689.

C.

The Retroactive Application of Amendment 798 Ground
Thompson claims that Amendment 798 of the Sentencing

Guidelines applies retroactively to his case because "his
sentence was not yet final when the Amendment was passed and he
is on [§)

2255." As stated in subsection A, supra, misapplication

of the Sentencing Guidelines is not cognizable on collateral
review. Williamson, 183 F.3d at 462; Vaughn, 955 F.2d at 368; see
United States v. Towe, 26 F.3d 614, 616

(5th Cir. 1994)

(per

curiam). Rather, a claim for reduction of sentence due to a
retroactive guideline amendment should be brought under 18 U.S.C.
§ 3582(c) (2). Towe, 26 F.3d at 616. However, even if the court
construed Thompson's motion as one brought under§ 3582(c) (2),
Thompson would not be entitled to any relief. Amendment 798 is
not retroactive. See USSG § 1B1.10(d).
Thompson claims that appellate counsel was ineffective for
failing to raise the retroactive guideline amendment ground on
direct appeal. However, for the reasons outlined in the preceding
paragraph, such ground is meritless. Counsel was not ineffective
for failing to raising it. See Kimbler, 167 F.3d 893.

7

v.
Order
Therefore,
The court ORDERS that Thompson's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C.

§

2255 be, and

is hereby, denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§

2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED August 7, 2017.

8