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Thompson v. United States

United States District Court, D. Maine

June 12, 2019

TREZJUAN THOMPSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         In this 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).

         Petitioner 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.)

         Following 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.

         I. Factual Background and Procedural History

         In May 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.)

         At the plea hearing, [1] 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.[2] (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.[3] (Plea Tr. at 8.)

         In the 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.)

         In 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).

         In June 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.)

         The 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.[4] (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.[5](Id. at 48-52.)

         On 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).

         Petitioner filed the section 2255 motion on March 26, 2018.[6] (Motion at 1.)

         II. Discussion

         A. Legal Standards

         A 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).

         The 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).

         A 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 ...


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