United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON, U.S. MAGISTRATE JUDGE
action, Petitioner Trezjuan Thompson moves, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (Motion, ECF No. 128.) Following a guilty plea,
Petitioner was convicted of drug conspiracy and arson; the
Court sentenced Petitioner to a total term of 327 months in
prison. (Judgment, ECF No. 106 at 1-2.) The First Circuit
affirmed the conviction and the sentence. United States
v. Thompson, 851 F.3d 129, 132 (1st Cir.
2017) (per curiam).
claims he received ineffective assistance of counsel at the
plea stage and at sentencing, and he challenges both the
statutory penalty range and his career offender sentence.
(Motion at 4-5, 22; Reply, ECF No. 151 at 2.)
a review of the record and after consideration of
Petitioner's motion and the Government's request for
dismissal, I recommend the Court grant the Government's
request, and dismiss Petitioner's motion.
Factual Background and Procedural History
2011, following a hearing conducted pursuant to Federal Rule
of Criminal Procedure 11, Petitioner pled guilty to two
counts of conspiracy to distribute and possess with intent to
distribute five or more grams of cocaine base, 21 U.S.C.
§ 841(a)(1), (b)(1)(B), § 846 (Counts 1 and 5 of
the indictment), and to one count of malicious damage or
destruction of personal property used in interstate commerce
by fire, 18 U.S.C. § 844(i) (Count 3 of the indictment).
(Indictment, ECF No. 1 at 1-3; Plea Tr., ECF No. 50 at 1;
Judgment at 1.)
plea hearing,  the Court explained to Petitioner that the
Government had filed an information charging a prior
conviction, and that the prior conviction would affect the
penalty. (Plea Tr. at 6.) The information alleged a 2007
Maine state court conviction of unlawful trafficking of
scheduled drugs. (Information, ECF No. 17 at 1.) The Court
explained that given the prior felony drug offense,
Petitioner would be subject to a mandatory minimum term of
ten years in prison and a maximum term of life, if new lower
penalties under the Fair Sentencing Act did not apply to
defendants who, like Petitioner, committed the conduct before
the new law went into effect but were sentenced after the
effective date of the law. (Plea Tr. at 8.)
plea colloquy, in response to the Court's inquiry,
Petitioner stated that he did not disagree with a prosecution
version that alleged a drug quantity of 28 grams or more of
cocaine base; thus, Petitioner admitted at the plea hearing a
drug quantity larger than the five grams (i.e., more
than alleged in the indictment). (Id. at 13;
Prosecution Version, ECF No. 23 at 2.)
December 2012, Petitioner moved to withdraw his guilty plea.
(Motion, ECF No. 57.) In April 2013, the Court denied the
motion. (Memorandum Decision and Order, ECF No. 76.)
United States v. Thompson, 2013 WL 1809659, 2013
U.S. Dist. Lexis 60427 (D. Me. Apr. 29, 2013).
2013, at sentencing, Petitioner admitted he had the prior
drug conviction alleged in the information to establish prior
convictions. (Sentencing Tr., ECF No. 119 at 2-3.) The Court
found Petitioner was a career offender under USSG §
4B1.1, based on two prior convictions, as set forth in the
second revised presentence investigation report.
(Id. at 44; Report, ¶¶ 43, 44.) One of two
prior offenses on which Petitioner's career offender
status was based was the 2007 Maine drug conviction alleged
in the information; the other prior offense was a 2006
Massachusetts conviction of assault and battery with a
dangerous weapon. (Sentencing Tr. at 44; Information, ECF No.
17; Report, ¶¶ 43, 44.)
Court found two alternative total offense levels-34 or
37-pursuant to USSG § 4B1.1(b), depending on whether the
Supreme Court's decisions in Alleyne v. United
States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000), precluded the reliance on
Petitioner's admission of the higher drug quantity
alleged in the prosecution version, and thus reduced the
statutory maximum. (Sentencing Tr., ECF No. 119 at 45-47;
Statement of Reasons, ECF No. 107 at 1, 5.) The Court found
the criminal history to be Category VI. (Sentencing Tr. at
47.) After considering the 18 U.S.C. § 3553(a)
sentencing factors, the Court imposed a prison term of 327
months.(Id. at 48-52.)
appeal, the First Circuit affirmed the Court's denial of
Petitioner's motion to withdraw the plea; the First
Circuit rejected Petitioner's argument “that he did
not have the opportunity to review personally certain
discovery materials.” Thompson, 851 F.3d at
130. The First Circuit also concluded that Petitioner's
additional argument, a challenge to his career offender
status and particularly to his prior Massachusetts
conviction, raised during the pendency of the appeal and
based on Johnson v. United States, ___ U.S ___, 135
S.Ct. 2551, 2557 (2015) (holding the “residual
clause” of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (ACCA), i.e., section 924(e)(2)(B), is
unconstitutionally vague), was precluded by the Supreme
Court's subsequent decision in Beckles v. United
States, ___ U.S. ___, 137 S.Ct. 886 (2017) (holding
“the advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause”). The First
Circuit also rejected Petitioner's arguments asserted in
a supplemental pro se brief. Thompson, 851 F.3d 130
n.2 (concluding the pro se claims lacked merit, and declining
to address them specifically).
filed the section 2255 motion on March 26,
2018. (Motion at 1.)
person may move to vacate his or her sentence on one of four
different grounds: (1) “that the sentence was imposed
in violation of the Constitution or laws of the United
States”; (2) “that the court was without
jurisdiction” to impose its sentence; (3) “that
the sentence was in excess of the maximum authorized by
law”; or (4) that the sentence “is otherwise
subject to collateral attack.” 28 U.S.C. §
2255(a); see Knight v. United States, 37 F.3d 769,
772 (1st Cir. 1994).
burden is on the section 2255 petitioner to establish by a
preponderance of the evidence that he or she is entitled to
section 2255 relief. David v. United States, 134
F.3d 470, 474 (1st Cir. 1998); United States v.
DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
When “a petition for federal habeas relief is presented
to the judge who presided at the petitioner's trial, the
judge is at liberty to employ the knowledge gleaned during
previous proceedings and make findings based thereon without
convening an additional hearing.” United States v.
McGill, 11 F.3d 223, 225 (1st Cir. 1993).
collateral challenge is not a substitute for an appeal.
United States v. Frady, 456 U.S. 152, 165 (1982);
Berthoff v. United States, 308 F.3d 124, 127 (1st
Cir. 2002). “Accordingly, a defendant's failure to
raise a claim in a timely manner at trial or on appeal
constitutes a procedural default that bars collateral review,
unless the defendant can demonstrate cause for the failure
and prejudice or actual innocence.” Berthoff,
308 F.3d at 127-28. Procedural default is an affirmative
defense. Sotirion v. United States, 617 F.3d 27, 32
(1st Cir. 2010). The First Circuit has recognized that
“federal courts have the authority to consider
procedural default sua sponte.” Rosenthal
v. O'Brien,713 F.3d 676, 683 (1st Cir. 2013)
(citing Brewer v. Marshall,119 F.3d 993, 999 (1st
Cir. 1997)); see ...