Thomas v. United States
| Decision Date | 30 September 2015 |
| Docket Number | 2:15-cv-00007-DBH,2:11-cr-00047-DBH |
| Parties | MICHAEL R. THOMAS, f/k/a Sean P. Higgins f/k/a Shawn P. Higgins, Petitioner, v. UNITED STATES OF AMERICA, Respondent |
| Court | U.S. District Court — District of Maine |
In this action, Petitioner Michael R. Thomas, formerly known as Sean P. Higgins and/or Shawn P. Higgins, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 134.) The Government has moved for summary dismissal. (Response, ECF No. 145.)
Petitioner asserts Fourth, Ninth, and Tenth Amendment claims against law enforcement and a DNA testing company (Ground One); judicial conflict of interest (Ground Two); conflict of interest of a postal inspector (Ground Three); and Fourth, Ninth, and Tenth Amendment claims against Petitioner's former school (Ground Four). Each of these claims includes a related claim of ineffective assistance of counsel. In addition, Petitioner claims ineffective assistance of counsel regarding the plea agreement and the length of the sentence (Ground Five); failure to advise Petitioner that he had a right to plead nolo contendere (Ground Six); and failure to appeal the denial of a motion to dismiss (Unnumbered Ground).
Following a review of Petitioner's motion and the Government's request for dismissal, I recommend that the Court grant the Government's request, and dismiss Petitioner's motion.
Petitioner was charged in March 2011 and indicted in April 2011. (Complaint, ECF No. 1; Indictment, ECF No. 17.) The initial seven-count indictment alleged that Petitioner threatened to murder a United States senator and representative, 18 U.S.C. § 115(a)(1)(B) (Counts 1, 3); Petitioner mailed threatening communications to them, to the Maine governor, and to a governor of another state, 18 U.S.C. § 876(c) (Counts 2, 4, 5, 6); and Petitioner possessed a firearm as a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2), after he previously had been convicted of a stalking felony in state court in Massachusetts (Count 7).
In May 2011, Petitioner filed a motion to suppress DNA evidence that was obtained in 2005 in another investigation and eventually used to obtain a search warrant in this matter. (Motion to Suppress, ECF No. 27.) The Court denied the motion. United States v. Thomas, 815 F. Supp.2d 384 (D. Me. 2011). (Decision and Order, ECF No. 51.) The First Circuit described the facts in its opinion on Petitioner's direct appeal:
The DNA was obtained during a 2005 postal service investigation of a different matter which resulted in no charges against [Petitioner]. That profile was not destroyed but retained in closed investigative files. It was retrieved during the 2011 investigation, which focused on [Petitioner] for other reasons. The 2005 DNA profile was a match to the DNA recovered from the threatening letters sent in 2011 and provided the basis for the 2011 warrant.
United States v. Thomas, 736 F.3d 54, 56 (1st Cir. 2013).
The 2004-2005 investigation that was the subject of the motion to suppress began after a preparatory school in Massachusetts received a threatening letter containing an unidentified whitepowder.1 Id. at 56. The letter had a northern Maine postmark, and the school secretary, who was married to a postal inspector, determined that Petitioner, an alumna of the school, lived in the area covered by the postmark. Id. Later, a Maine postal inspector obtained a federal grand jury subpoena from the United States Attorney's Office in Portland, although there was no grand jury proceeding; the subpoena ordered Petitioner either to appear before the grand jury in Bangor, or to provide a DNA sample, fingerprints, and a handwriting exemplar to the postal inspectors at the local police station. Id. at 56-57. Petitioner chose to go to a local police station in northern Maine, where he provided the samples, including a cheek (buccal) swab. Id. at 57.
During the 2011 investigation, investigators obtained a DNA sample from at least one of the threatening letters at issue in the criminal case that is the subject of this section 2255 motion. Id. at 58. One of the postal inspectors involved in the 2004-2005 investigation was also involved in the 2011 investigation, and he retrieved the then-archived case file from the 2004-2005 investigation. Id. Investigators found that Petitioner's DNA profile from the 2004-2005 investigation matched his DNA profile from the 2011 investigation. Id. The affidavit in support of the 2011 complaint and search warrant was based in part on the match between the 2005 and 2011 DNA profiles. Id.
In September 2011, following an evidentiary hearing and oral argument, the Court denied the motion to suppress, concluding that regardless of whether the 2004-2005 investigation violated the Fourth Amendment, "it would be an undue extension of the exclusionary rule to use it to exclude the defendant's DNA profile and his resulting incriminating statements in a prosecution six years later for unrelated criminal conduct." Thomas, 815 F. Supp. 2d at 385, 389.
In October 2011, the Government filed a superseding nine-count indictment that alleged the previous seven counts and added the following two counts: that Petitioner engaged in interstate stalking, 18 U.S.C. §§ 2261A(2), 2261(b)(5) (Count 8); and that Petitioner engaged in a terrorist hoax, 18 U.S.C. § 1038(a)(1) (Count 9). (Superseding Indictment, ECF No. 52.) Petitioner subsequently filed a second motion to suppress, in which he incorporated the arguments of his first motion to suppress. (Motion to Suppress, ECF No. 66.) In January 2012, the Court denied Petitioner's second motion to suppress on the same bases that it denied the first motion to suppress. (Order on Pending Motions, ECF No. 75.)
In March 2012, Petitioner filed two motions to dismiss, one of which addressed Counts 1-6 of the superseding indictment, and the other addressed Count 8 of the superseding indictment. (Motions to Dismiss, ECF Nos. 85, 86.) Petitioner argued that Counts 1-6 should be dismissed because they did not allege "true threats," as required under Watts v. United States, 394 U.S. 705, 708 (1969). (Motion, ECF No. 86 at 1.) Petitioner argued that Count 8 should be dismissed because the interstate stalking statute, 18 U.S.C. § 2261A(2), violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. (Motion, ECF No. 85 at 1.)
In May 2012, the Court held oral argument on both motions to dismiss. (Hearing Tr., ECF No. 129 at 1-2.) The Court denied, in an oral order from the bench, the motion to dismiss Counts 1-6. (Id. at 54-57.) In a written decision, the Court denied the motion to dismiss Count 8. (Decision and Order, ECF No. 94.) United States v. Sayer, 2012 WL 1714746, 2012 U.S. Dist. Lexis 67684 (D. Me. May 15, 2012).2 The Court concluded that the statute was notunconstitutional as applied to Petitioner, nor was it unconstitutionally broad or vague. 2012 WL 1714746, at *4, 7-9, 2012 U.S. Dist. Lexis 67684, at *13, 28-41.
In June 2012, Petitioner entered a conditional guilty plea to several counts, including both counts of threatening members of Congress, one count of mailing threatening communications, possession of a firearm as a convicted felon, and engaging in interstate stalking (Counts 1, 3, 5, 7, 8). (Conditional Plea. ECF No. 102; Minute Entry, ECF No. 103.) The conditional plea preserved Petitioner's right to appeal from the denial of his motion to suppress and his right to appeal from the denial of his two motions to dismiss. (Conditional Plea at 1.) As part of the plea agreement, the Government agreed to dismiss the remaining counts at sentencing. (Plea Agreement, ECF No. 99 at 1.) At Petitioner's change of plea hearing, the Court accepted the conditional plea. (Plea Tr., ECF No. 140 at 18.)
At sentencing, the Court accepted the plea agreement and found the facts as set forth in the revised presentence investigation report. (Sentencing Tr., ECF No. 130 at 22.) The revised presentence investigation report cited the same base offense levels as to which the parties had agreed on all counts, and the Court found the base offense levels as provided in the report. (Sentencing Tr., ECF No. 130 at 22-23.) To the base offense level of 18 for Count 8, the Court added four levels, pursuant to U.S.S.G. § 2A6.2(b)(1), because Petitioner engaged in a long-term pattern of threatening or harassing behavior, and the Court added an additional four levels for multiple counts, pursuant to U.S.S.G. 3D1.4, for a combined adjusted offense level of 26. (Id. at 23.) The Court subtracted three levels for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, for a total offense level of 23. (Id. at 23.) The total offense level, when combined with a criminal history category of III, yielded a guideline range of 57-71 months. (Id. at 23-24.)
The Court sentenced Petitioner to 71 months of imprisonment on Counts 1, 3, 7, and 8, and sentenced Petitioner to 60 months of imprisonment on Count 5, to be served concurrently, followed by three years of supervised release on all counts, to be served concurrently. (Minute Entry, ECF No. 119; Judgment, ECF No. 120 at 2-3.) On the Government's motion, the Court dismissed the remaining counts (Counts 2, 4, 6, 9). (Judgment at 1.)
In Petitioner's direct appeal, he challenged only the denial of his motion to suppress. (Appellant's Brief, No. 12-2438 (1st Cir. Apr. 17, 2013).) In November 2013, the First Circuit affirmed the Court's denial of the motion to suppress. (Opinion and Judgment of USCA, ECF Nos. 131, 132.) Thomas, 736 F.3d at 66. The First Circuit concluded that the method used in 2005 to obtain a DNA sample violated the Fourth Amendment:
What is clear here is that there was no determination by a grand jury or a judge of whether any particular level of Fourth Amendment justification had been met to justify the grand jury subpoena for...
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