Thomas v. United States

• Decision Date: 11 February 2022
• Docket Number: 3:12-CR-00119-BJB-CHL-1
• Parties: DONTRAE M. THOMAS, Movant/Defendant. v. UNITED STATES OF AMERICA, Respondent/Plaintiff,
• Court: U.S. District Court — Western District of Kentucky

DONTRAE M. THOMAS, Movant/Defendant. v. UNITED STATES OF AMERICA, Respondent/Plaintiff,

No. 3:12-CR-00119-BJB-CHL-1

United States District Court, W.D. Kentucky, Louisville Division

February 11, 2022

MEMORANDUM OPINION AND ORDER

Colin H Lindsay, Magistrate Judge United States District Court.

Before the Court are several motions filed by Movant/Defendant Dontrae M. Thomas (“Thomas”): (1) a Motion for Evidentiary Hearing (DN 158); (2) a Motion for Discovery (DN 159); (3) a motion for removal of appointed counsel (DN 167) (4) a Motion to Correct Supplemental Memorandum in Support of Thomas's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (DN 168); (5) a Motion to Have Appointed Counsel Removed from Case and Have Different Counsel Appointed (DN 175); and (6) two motions for status conference (DNs 186, 188). The United States filed responses to some of the motions (DNs 165, 166) and as to those motions to which the United States did not respond, its time to do so has expired. Thomas filed no replies, and his time to do so has expired. This matter was initially referred to Magistrate Judge Dave Whalin “for rulings on all non-dispositive motions; for appropriate hearings, if necessary; and for findings of fact and recommendations on any dispositive matter.” (DN 115.) Upon Judge Whalin's retirement this case was reassigned to the undersigned Magistrate Judge. (DN 134; General Order 2018-08.)

Therefore these matters are ripe for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The following summary of the basic facts of Thomas's case is taken from the factual basis for his guilty plea as set forth in the plea agreement:

In August, 2012, [ ] [Thomas] was wanted on an arrest warrant for a state criminal charge. On August 22, 2012, he was located in the parking lot of a Kroger store on Bardstown Road. When a U.S. Marshall's [sic] Fugitive Task Force member arrested him, [ ] [Thomas] had a loaded Astra model A75.45 caliber semiautomatic pistol bearing serial No. 25525-95A in his pocket. [ ] [Thomas] had previously been convicted by a court of a crime punishable by imprisonment for a period of one year or more. The Astra firearm was manufactured outside Kentucky and had therefore traveled in interstate commerce prior to the date of the offense.

(DN 86, at PageID # 323-24.) On October 2, 2012, Thomas was indicted on one count of being a prohibited person in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e). (DN 1.) After entering a guilty plea (DNs, 86, 88), pursuant to the Fed. R. Crim. P. 11(c)(1)(C) plea agreement, Thomas was sentenced to 180 months in prison and five years of supervised release. (DN 96.)

B. Procedural Background

On July 28, 2017, Thomas sent a letter to the Court requesting appointment of counsel to assist with his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (“§ 2255 motion”). (DNs 103, 111.) The Court denied his motion in part because Thomas had not yet filed a § 2255 motion and indicated that it was inclined to construe Thomas's motion as one pursuant to 28 U.S.C. § 2255 to alleviate Thomas's concerns regarding the applicable statute of limitations. (DN 105.) Because doing so would subject Thomas to the restrictions on successive § 2255 motions, the Court set Thomas a deadline to withdraw the document or amend it to contain any pertinent claims. (Id.; DN 108.) Ultimately, on November 6, 2017, Thomas filed an amended § 2255 motion. (DN 112.) In his amended motion, Thomas raised nine grounds for relief, six of which he listed collectively as ground one in his motion under the heading “ineffective assistance of counsel.” (Id.) Below is a list of Thomas's claims, paraphrased for efficiency and clarity:

1(a). Counsel failed to investigate and/or gave Thomas incorrect advice regarding the availability of a justification defense;

1(b). Counsel failed to subpoena certain specific witnesses to testify at the suppression hearing;

1(c). Counsel reached an improper agreement with the prosecutor not to mention a particular officer during the suppression hearing;

1(d). Counsel improperly handled and/or altered a particular motion tendered by Thomas to counsel;

1(e). Counsel failed to investigate and/or obtain particular evidence including cell phone records, cell location data, and surveillance footage;

1(f). Counsel improperly agreed to have the case declared complex and/or to continuances that denied Thomas his right to a speedy trial;

2. Thomas's conviction was obtained by use of evidence obtained pursuant to an unconstitutional search and seizure;

3. Prosecutorial misconduct; and

4. A sentencing enhancement under the Armed Career Criminal Act (“ACCA”) was improperly applied based on an unconstitutional prior conviction.

(Id.)

The Court directed the United States to answer Thomas's motion (DN 115), and on March 28, 2018, the United States filed its response. (DN 124.) The United States responded on the merits as to Thomas's ineffective assistance of counsel claims, alleged that his second ground for relief was procedurally defaulted, alleged that his third ground for relief was both meritless and procedurally defaulted, and argued that Thomas's fourth ground for relief was not cognizable. (DN 124.) Thomas filed a reply in which he focused on the United States' arguments regarding ground 1(a) and challenging the notion that he failed to submit evidence in support of ground 1(b). (DN 129.) Thomas also renewed his request for appointment of counsel. (Id.)

On July 3, 2018, the Court entered an order finding that appointment of counsel was required and appointing attorney James A. Earhart to represent Thomas. (DN 130.) Of particular relevance to the motions now before the Court, the order appointing attorney Earhart noted that “Thomas's primary claims of ineffective assistance of counsel are colorable and depend upon matters clearly outside the record so that it appears discovery along with an evidentiary hearing may well be needed.” (Id. at PageID # 553.) The matter was delayed for some time while attorney Earhart attempted to obtain a copy of Thomas's file from Thomas's former counsel. (DNs 135, 136, 137, 138, 139, 140, 144.)

In an order entered on March 29, 2019, the Court gave attorney Earhart time to review the case and file any necessary motions as well as to supplement Thomas's amended § 2255 motion. (DN 145.) This deadline was subsequently extended multiple times at counsel's request. (DNs 149, 154, 156.) Attorney Earhart subsequently filed a supplement to Thomas's § 2255 motion (DN 157), to which the United States filed a supplemental response (DN 164). Attorney Earhart included all Thomas's initial claims but added an additional claim of ineffective assistance of counsel, which the Court sets forth below as an addition to the list of claims above:

1(g). Counsel failed to investigate prior criminal convictions to show that they were unconstitutional.

(DN 157, at PageID # 621.)

Attorney Earhart also filed the instant Motion for Evidentiary Hearing (DN 158), Motion for Discovery (DN 159), and a Motion to Correct Supplemental Memorandum (DN 168). Thomas then filed two motions to have attorney Earhart removed from this case and requested that either another attorney be appointed or that the Court allow Thomas to proceed pro se. (DNs 167, 175.)

Attorney Earhart subsequently filed two motions for a status conference to clarify his status as

Thomas's appointed counsel. (DNs 186, 188.) These motions are now before the Court and will be addressed below.

II. DISCUSSION

A. Thomas's Motions to Remove Appointed Counsel (DNs 167, 175)

Thomas moved to have his appointed counsel removed from his case. (DNs 167, 175.) In support, Thomas stated that attorney Earhart's “performance has not been satisfactory.” (DN 167.) He stated he instructed attorney Earhart not to attempt to obtain a copy of Thomas's client file from Thomas's prior counsel, Frank Mascagni, because “under no circumstances would Mascagni ever provide [Earhart] with the case file because it contained evidence of Mascagni[']s unethical behavior and ineffectiveness . . . .” (DN 175, at PageID # 784.) Thomas indicated in his motion that he directed attorney Earhart to proceed without obtaining the client file and that Thomas “would not be ignored and railroaded for a second time by his own attorney and that if Mr. Earhart would not respect his wishes and do as he asked then he wanted [Earhart] to immediately withdraw from the case.” (Id.) Thomas stated that, despite his instructions, Earhart continued to try to obtain the client file from Mascagni causing undue delay in Thomas's case. (Id. at 784-85.) Thomas requested that the Court either appoint him new counsel or allow him to proceed pro se. (Id. at 786.)

There is no constitutional right to counsel in post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Instead, and as set forth in this Court's prior orders (DNs 105, 130), where “the interests of justice so require, ” a court may appoint counsel to a person seeking relief under section 2255. 18 U.S.C. § 3006A(a)(2)(B). In determining whether the interests of justice so require, the court should consider whether a prisoner has brought non-frivolous claims, “the factual and legal complexities of the case, the prisoner's ability to investigate and present clams, the existence of conflicting testimony, and any other relevant factors.” Satter v. Class, 976 F.Supp. 879, 885 (D.S.D. 1997). There is a limited statutory right to appointed counsel in a section 2255 proceeding where either the court has determined that an evidentiary hearing is required or the court has determined that appointment of counsel is “necessary for...