Thomas v. United States, C 14-4010-MWB

• Decision Date: 16 February 2016
• Docket Number: No. C 14-4010-MWB,No. CR 11-4074-MWB,C 14-4010-MWB,CR 11-4074-MWB
• Parties: ISAIAH EARL THOMAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Iowa

ISAIAH EARL THOMAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. C 14-4010-MWB

No. CR 11-4074-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

February 16, 2016

MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE

TABLE OF CONTENTS

I. INTRODUCTION .......................................................................... 2

A. Criminal Proceedings .............................................................. 2

B. Section 2255 Proceedings ......................................................... 9

II. LEGAL ANALYSIS ...................................................................... 10

A. General Standards For § 2255 Relief ......................................... 10

1. Grounds for § 2255 relief ............................................... 10

2. Standards for an evidentiary hearing ................................. 13

B. Thomas's Claims Of Ineffective Assistance of Counsel ............................................................................. 14

1. "Ineffective assistance of counsel" standards ...................... 14

2. First criminal counsel's failure to advise Thomas of the potential for a career offender enhancement ................... 16

a. Arguments of the parties ....................................... 16

b. Analysis ............................................................ 18

3. Second criminal counsel's failure to challenge the career offender enhancement .......................................... 22

a. Arguments of the parties ....................................... 23

b. Analysis ............................................................ 24

C. Certificate Of Appealability ..................................................... 29

III. CONCLUSION ............................................................................ 30

This case is before me on petitioner Isaiah Earl Thomas's February 10, 2014, pro se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (§ 2255 Motion) (Civ. docket no. 1). Thomas seeks relief, on numerous grounds, from his guilty plea to firearm and drug-trafficking charges and his sentence as a career offender to 327 months of imprisonment. Thomas's appointed habeas counsel has briefed only two of Thomas's many claims, both alleging ineffective assistance of counsel concerning Thomas's career offender enhancement. The respondent denies that Thomas is entitled to any relief on his claims.

I. INTRODUCTION

A. Criminal Proceedings

On June 22, 2011, Thomas was indicted as the sole defendant in a three-count Indictment. Count 1 of the Indictment charged that, from about January 1, 2010, and continuing through about February 23, 2011, Thomas conspired to distribute an unspecified amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(d), and 846. Count 2 charged that, from January 1, 2010, and continuing through about February 23, 2011, Thomas knowingly possessed a firearm in furtherance of a drug-trafficking crime, that is, conspiracy to distribute marijuana as charged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A). The firearms alleged in this count were a .22 caliber derringer and a .40 caliber pistol. Count 3 charged that, on or about February 23, 2011, Thomas knowingly possessed the same firearms alleged in Count 2 having previously been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). This count identified two prior convictions for aggravated misdemeanor domestic abuse assault, in 2006 and 2002, respectively, one prior conviction for serious misdemeanor domestic abuse assault, in 2001, and aconviction for serious misdemeanor assault in 2000. The Indictment included a forfeiture allegation as to any firearms or ammunition involved or used in knowing violation of 18 U.S.C. § 922(g)(9). Thomas's first criminal counsel was appointed to represent him, and Thomas entered pleas of not guilty to all charges on August 3, 2011.

Prior to trial, which was eventually set to begin on October 3, 2011, the court scheduled a change-of-plea hearing for September 22, 2011. See Order (Crim. docket no. 14). In an Affidavit (Civ. docket no. 1-4), attached to his § 2255 Motion, Thomas avers that his first criminal counsel had advised him that the prosecution had offered him an open plea (i.e., without a plea agreement), but that his first criminal counsel "never consulted me/or advised me that I would be facing or being [sic] subjected to a Career Offender or Armed Criminal enhancement." In contrast, in an Affidavit (Civ. docket no. 16-1), attached to the respondent's Response And Memorandum In Support Of Government's Response To Defendant's Motion Under 28 U.S.C. § 2255, Thomas's first criminal counsel avers, as follows:

In meeting with Mr. Thomas, I explained to him my concerns about the career offender enhancement applying. I concluded that I did not think it would apply, but that I could be wrong, and explained to him again the starting Guideline range if it did apply. We discussed this at length, and I expressed some trepidation about the matter. I explained the rationale behind acceptance of responsibility, and suggested how I would present his case at sentencing. It was still his desire to plead guilty.

Affidavit Of First Criminal Counsel, unnumbered ¶ 3. Thomas did not subsequently attempt to refute, by any statement under oath, his first criminal counsel's statements, nor request an opportunity to challenge them.

On September 22, 2011, Thomas pleaded guilty to all three counts against him, before Chief United States Magistrate Judge Paul A. Zoss. See Plea Hearing Minutes(Crim. docket no. 17). The transcript of the plea hearing contains absolutely no reference to the possibility of a career offender enhancement in the parties' discussion of Thomas's possible sentencing range. See Transcript Of Plea Hearing (Crim. docket no. 30). Indeed, the prosecutor suggested that Thomas's likely guidelines range was 84 to 90 months of imprisonment, and Thomas's first criminal counsel concurred. See id. at 22:21-23:13. Judge Zoss did advise Thomas that his sentence could be higher (or lower), because the guidelines are advisory, see, e.g., id. at 23:14-26:7, and that his maximum statutory sentence on Count 2 was life imprisonment. See id. at 16:13-18, 25:19-21. The prosecutor reiterated "that the defendant is aware that he could face up to life in prison." See id. at 17:17-18. The prosecutor also opined,

And one thing I should note here, too, is this is one of those unusual cases. At least the guidelines will be probably even less important than they are in the typical advisory setting. Because his criminal history is - is so long and his particular instant offense has so many disturbing characteristics to it, he's likely going to be either within the guidelines subject to several upward departures or perhaps even subject to upward variances that the guidelines are going to very quickly be overcome by the other sentencing factors.

Plea Hearing Transcript at 22:4-13. Thomas informed Judge Zoss that he understood how sentencing could go in his case. See id. at 26:6-8. I accepted Thomas's guilty plea on September 22, 2011, after the parties waived the time for objections to Judge Zoss's Report And Recommendation that I accept Thomas's plea. See Order (Crim. docket no. 21).

Approximately four months later, on January 30, 2012, Thomas filed a pro se request for new counsel. See Motion For New Counsel (Crim. docket no. 25). Thomas stated that he believed that his first criminal counsel had "misguided" him into believing that it was in his best interest to plead guilty to the charges. Thomas cited as examplesthe fact that he possessed far less than the quantity of marijuana that would trigger a mandatory minimum sentence and the fact that he denied ever possessing a firearm in furtherance of any drug crimes. He contends that, nevertheless, his first criminal counsel told him that, if he did not plead guilty immediately, he would lose three points for acceptance of responsibility and face a much greater sentence. See id. After an ex parte hearing, Judge Zoss granted Thomas's request for a new attorney, see Order (Crim. docket no. 28), and Thomas's second criminal counsel was appointed to represent him.

On March 5, 2012, Thomas, through his second criminal counsel, requested leave to file under seal a motion to withdraw his guilty plea, and on March 7, 2012, with leave of court, he filed that Motion To Withdraw Guilty Plea (Crim. docket no. 36). Thomas's grounds for seeking to withdraw his guilty plea were that he did not fully appreciate the nature of the conspiracy charge and the consequences of his guilty plea and that he was "grossly misinformed" as to the potential application of the guidelines and his potential sentence. Id. Not coincidentally, on March 6, 2012, the probation officer had filed the First Draft Presentence Investigation Report (1st Draft PSIR) (Crim. docket no. 35), which scored Thomas as a career offender and determined his advisory guidelines range to be 262 to 327 months of incarceration, with a 3-level reduction for acceptance of responsibility. 1st Draft PSIR at ¶ 45.¹ In an Order (Crim. docket no. 45), filed April 5, 2012, I denied Thomas's Motion To Withdraw Guilty Plea, on the ground that there was no "fair and just reason" for allowing him to withdraw his plea. Specifically, I found that Judge Zoss had thoroughly discussed the requirements for a conviction on the conspiracy charge in Count 1, and that he had also made clear to Thomas that he could face a sentence up to life imprisonment on Count 2, notwithstanding lower estimates ofhis advisory sentencing guidelines range at the plea hearing. The Amended And Final Presentence Investigation Report (Final PSIR), filed on May 29, 2012, after the parties' objections, included the same calculation of...