Thomas v. United States

Decision Date18 February 2014
Docket NumberNo. 12–1853.,12–1853.
PartiesDwight A. THOMAS, Movant–Appellant v. UNITED STATES of America, Respondent–Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

C. Douglas Shull, Columbia, MO, argued, for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Dwight A. Thomas appeals the denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Thomas alleges his trial counsel was ineffective in failing to move to dismiss his indictment for violation of his Sixth Amendment right to a speedy trial. The district court 1 denied his motion without a hearing. He then filed a Federal Rule of Civil Procedure 60(b) motion for relief from the judgment, and the district court denied the motion. We affirm.

I.

A federal grand jury returned a two-count indictment against Thomas on October 5, 2004, charging him with Count 1, distributing between three and four grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and Count 2, possession with intent to distribute at least 50 grams, but not more than 150 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). An arrest warrant was promptly issued but erroneously listed Thomas's birth date. Due to this error, Thomas was not apprehended on the indictment until February 2008, when he was taken into custody for a separate drug incident, approximately three years and four months after the indictment was entered.

After his arrest, the court appointed counsel to represent him. Thomas was arraigned on February 26, 2008, and he pled not guilty to the 2004 charges. The Government then filed an information under 21 U.S.C. § 851 alleging that Thomas had two felony drug convictions prior to the 2004 incident. The effect of the information was to provide for a mandatory sentence of life imprisonment if Thomas were convicted on Count 2. 21 U.S.C. § 841(b)(1)(A). After trial, the jury convicted him on both counts. The court sentenced Thomas to 240 months imprisonment on Count 1 and life on Count 2, to run concurrently. We affirmed the convictions and sentences. United States v. Thomas, 593 F.3d 752 (8th Cir.2010).

Thomas then moved, under 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence based on a violation of his Sixth Amendment right to the effective assistance of counsel. He alleged that counsel never discussed with him the possibility of moving to dismiss the case based on a speedy trial violation, and the failure to file such a motion to dismiss prejudiced him. In response, trial counsel filed an affidavit that asserted he had discussed the option of moving to dismiss on speedy trial grounds with Thomas, and Thomas agreed with his attorney's decision that it was better to go to trial on the 2004 indictment than to defend against a 2008 incident for which he was arrested but had not been indicted. The attorney reasoned that: (1) in 2004, Thomas was outside of the drug house but in 2008 he was inside the house in which the drugs were found, (2) the informant from the 2004 case was no longer available, (3) fewer witnesses were available in the 2004 case, (4) a jury might view an older case as less important, (5) the 2004 case would be more difficult for the government to prove, and (6) if the court dismissed the 2004 case, Thomas would be charged with the 2008 drug sale, and would have more difficulty working out a reasonable plea agreement.

The district court denied the motion and found a hearing unnecessary because the record conclusively showed that counsel's performance was reasonable. The court specifically found that Thomas's claims were contradicted by the record because, based on counsel's affidavit, Thomas agreed with the decision not to file a motion to dismiss on speedy trial grounds. Because counsel's performance was reasonable, the court did not consider whether the alleged ineffectiveness prejudiced Thomas. Thomas then filed a Rule 60(b) motion for relief from the judgment, which the district court summarily denied, and Thomas appealed. This court granted a certificate of appealability as to Thomas's “speedy-trial claim and on his Rule 60(b) claim.” 2

II.

Thomas argues (1) he should have been afforded an evidentiary hearing because the files and records of the case do not conclusively establish that he is not entitled to 28 U.S.C. § 2255 relief, and (2) the district court abused its discretion in denying his motion for relief from the judgment under Rule 60(b). We address each claim in turn.

A.

Our review of a district court's ruling in a 28 U.S.C. § 2255 proceeding is de novo both on matters of law and on mixed questions of law and fact. United States v. Duke, 50 F.3d 571, 576 (8th Cir.1995). We review a district court's decision to deny an evidentiary hearing for abuse of discretion; however, we are obligated “to look behind that discretionary decision to the court's rejection of the claim on its merits, which is a legal conclusion that we review de novo.” Noe v. United States, 601 F.3d 784, 792 (8th Cir.2010) (quoting Saunders v. United States, 236 F.3d 950, 952 (8th Cir.2001)).

Evidentiary hearings on 28 U.S.C. § 2255 motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists. See Grady v. United States, 269 F.3d 913, 919 (8th Cir.2001); United States v. Peltier, 731 F.2d 550, 554 (8th Cir.1984). The district court is not permitted to make a credibility determination on the affidavits alone; thus if the decision turns on credibility, the district court must conduct a hearing. Kingsberry v. United States, 202 F.3d 1030, 1032–33 & n. 6 (8th Cir.2000). An evidentiary hearing may be denied, however, if the motion, files, and records of the case conclusively show that the movant is not entitled to relief. 28 U.S.C. § 2255(b). The court may find this conclusive showing if either (1) the [petitioner's] allegations, accepted as true, would not entitle the [petitioner] to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Buster v. United States, 447 F.3d 1130, 1132 (8th Cir.2006) (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir.2003)) (internal quotation marks omitted).

Thomas first argues that the district court erroneously included trial counsel's affidavit in the files and records of the case. In 1978, this court proscribed the use of affidavits as part of the files and records of the case when making credibility determinations. Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir.1978). However, the subsequent Rules Governing 28 U.S.C. § 2255 superceded Lindhorst and now permit the use of affidavits. Specifically, Rule 7 provides that [a]ffidavits also may be submitted and considered as part of the record.” 28 U.S.C. § 2255, Rule 7. In addition, Rule 8 provides that “the judge must review [the record] and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted.” 28 U.S.C. § 2255, Rule 8. Under these rules, trial courts now may consider affidavits as part of the files and records of the case. See Kingsberry, 202 F.3d at 1031 & n. 2.

Thomas next argues a hearing is warranted because he demonstrated that his counsel was ineffective, thus, the files and records of the case do not conclusively establish that he is not entitled to relief. Generally, to be successful on a claim of ineffective assistance of counsel, a defendant must “show both deficient performance by counsel and prejudice to the defense caused by that performance.” Barger v. United States, 204 F.3d 1180, 1181 (8th Cir.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Deficiency means that counsel's performance fell below an objective standard of reasonableness, and prejudice means that, but for counsel's errors, a reasonable probability exists that the result ... would have been different.” Deltoro–Aguilera v. United States, 625 F.3d 434, 437 (8th Cir.2010) (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052).

The defendant bears the burden to overcome the strong presumption that counsel's performance was reasonable. Middleton v. Roper, 455 F.3d 838, 846 (8th Cir.2006). However, strategic choices made due to a lack of preparation or investigation are not protected by the same presumption. Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052;Armstrong v. Kemna, 534 F.3d 857, 864–65 (8th Cir.2008). An attorney is not incompetent in exercising reasonable professional judgment even when, in hindsight, the decision may have been a mistake. Brown v. United States, 656 F.2d 361, 363 (8th Cir.1981). But, an attorney must conduct more than a cursory investigation. See Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 691 104 S.Ct. 2052);see also Nelson v. Hargett, 989 F.2d 847, 850–51 (5th Cir.1993) (finding that, on the particular facts, the failure to file a speedy trial motion was not a reasonable trial strategy but instead appeared to be the result of ineffective investigation).

The accused has the “ultimate authority to make certain fundamental decisions regarding the case.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The attorney, on the other hand, has the responsibility of making tactical decisions of trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052;Sanders v. Trickey, 875 F.2d 205, 207 (8th Cir.1989) (noting that, when determining whether counsel's representation was deficient, a court must avoid second-guessing trial strategy”). The Supreme Court has...

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