Thompson v. United States

• Decision Date: 04 August 2016
• Docket Number: Cr. No. 2:10-cr-20010-JPM-dkv-1,Cv. No. 2:13-cv-02737-JPM-dkv
• Parties: PHILLIP THOMPSON, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

PHILLIP THOMPSON, Movant, v. UNITED STATES OF AMERICA, Respondent.

Cv. No. 2:13-cv-02737-JPM-dkv

Cr. No. 2:10-cr-20010-JPM-dkv-1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

August 4, 2016

ORDER ADDRESSING PENDING MOTIONS, DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant Phillip Thompson ("Thompson"), Bureau of Prisons register number 23391-076, who is currently incarcerated at the Federal Correctional Institution Medium in Yazoo City, Mississippi. (§ 2255 Mot., Thompson v. United States, No. 2:13-cv-02737-JPM-dkv (W.D. Tenn.), ECF No. 1; see also Notice of Change of Address, id., ECF No. 20.) For the reasons stated below, the Court DENIES the § 2255 Motion.

I. PROCEDURAL HISTORY

A. Criminal Case Number 10-20010

On January 13, 2010, a federal grand jury returned a five-count indictment, charging that on or about December 17, 2009, Thompson, a convicted felon: (1) robbed Trust One Bank, 717 South White Station, Memphis, Tennessee, in violation of 18 U.S.C. § 2113(a) ("Count One"); (2) knowingly used and carried a firearm in the commission of the robbery, in violation of 18 U.S.C. § 924(c) ("Count Two"); (3) robbed Cadence Bank, 519 South Mendenhall, Memphis, Tennessee, in violation of 18 U.S.C. § 2113(a) ("Count Three"); (4) knowingly possessed a Hi-Point rifle, model 995, 9mm, serial number B98030, in violation of 18 U.S.C. § 922(g) ("Count Four"); and (5) knowingly possessed ten live rounds of 9mm caliber ammunition and five live rounds of 8mm caliber ammunition, in violation of 18 U.S.C. § 922(g) ("Count Five"). (Indictment, United States v. Thompson, No. 2:10-cr-20010-JPM-dkv-1 (W.D. Tenn.), ECF No. 13.) The factual basis for the charges is stated in the presentence investigation report ("PSR"):

The Offense Conduct

4. According to the investigative file, on December 17, 2009, at approximately 8:35 a.m. Phillip Thompson entered Trust One Bank, located at 717 S. White Station in Memphis, TN, carrying a Hi-Point 9mm rifle, model 995, serial number B98030, and wearing a black sweatshirt with a hood cinched around his face. Thompson ordered three bank tellers to put their hands up. He first pointed the firearm at Stephanie Ballard and demanded money from her cash drawer. Thompson then pointed the rifle at Lauren Tomlinson and demanded money from her drawer. Thompson warned both tellers not to give him a dye pack or tracking devices. During the robbery, Ashley Wheeler was standing behind her desk with her hands raised in the air. Thompson fled the bank and witnesses observed him driving southbound on White Station. The total loss from the bank robbery was $4,172.00.

5. At approximately 8:48 a.m., Thompson entered Cadence Bank, located at 591 South Mendenhall, wearing the same black hooded sweatshirt, and approached bank teller, Denise Chaudoin. He pointed a Brun[]i 8 mm blank firing handgun at her and demanded money from her cash drawer. Ms. Chaudoin complied with his demands, after which he immediately fled the bank with the money. The total loss from this robbery was $3,643.00.

6. Witnesses had observed Thompson fleeing from both banks in the same vehicle. Investigators subsequently issued a citywide broadcast for Thompson's vehicle. Officers observed the vehicle at Poplar and East Parkway and attempted to conduct a traffic stop; however, Thompson refused to stop and accelerated his speed. Thompson turned onto Evergreen, leaned out of his vehicle and fired approximately 15 shots atthe officers with the assault rifle. Thompson eventually crashed into a building at Chelsea and Evergreen. He fled on foot but was located a short distance from the crash and immediately arrested at approximately 11:55 a.m.

. . . .

9. A search warrant was obtained and executed for Thompson's vehicle. Officers recovered: a Hi-Point rifle; a Bruni simunition handgun; two []9 mm rounds; five []8 mm rounds; $7,790; a black hooded sweatshirt; a pair of Air Jordan tennis shoes; a Sam's card and deposit slips bearing Thompson's name; a cell phone; and an iPod Touch.

10. Trust One Bank and Cadence Bank are insured by the Federal Deposit Insurance Corporation. . . . .

11. The firearm was not manufactured in the State of Tennessee and therefore traveled in interstate commerce. Thompson was a convicted felon at the time of his arrest.

(PSR ¶¶ 4-6, 9-11.)

On October 20, 2011, Thompson pleaded guilty to all five Counts. (Min. Entry, United States v. Thompson, No. 2:10-cr-20010-JPM-dkv-1 (W.D. Tenn.), ECF No. 40; Order on Change of Plea, id., ECF No. 41.) Sentencing began on June 20, 2012 (Min. Entry, id., ECF No. 55) and resumed on July 19, 2012, during which the Court sentenced Thompson to a term of imprisonment of twenty years to be followed by a three-year period of supervised release as to Count One; a term of imprisonment of ten years to be followed by a five-year period of supervised release as to Count Two; a term of imprisonment of twenty years to be followed by a three-year period of supervised release as to Count Three; and a term of imprisonment of ten years to be followed by a three-year period of supervised release as to each of Counts Four and Five (Min. Entry, id., ECF No. 57).¹ Judgment was entered on July 20, 2012. (J. in a CriminalCase, id., ECF No. 59.) The twenty-year sentences for Counts One and Three were to be served concurrently with each other, but consecutive to the ten-year sentences for Counts Four and Five, which were also to be served concurrently with each other and consecutive to the ten-year sentence for Count Two, for a total term of imprisonment of forty years. (Id. at 3.) All periods of supervised release were to be served concurrently with each other for a total term of five years. (Id. at 4.) Thompson filed a notice of appeal on July 23, 2012. (Notice of Appeal, United States v. Thompson, No. 2:10-cr-20010-JPM-dkv-1 (W.D. Tenn.), ECF No. 62.) The Sixth Circuit affirmed the district court's judgment on July 29, 2013. United States v. Thompson, 531 F. App'x 549 (6th Cir. 2013) (per curiam).

B. Civil Case Number 13-2737

On September 23, 2013, Thompson filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"). (§ 2255 Mot., Thompson v. United States, No. 2:13-cv-02737-JPM-dkv (W.D. Tenn.), ECF No. 1.) The motion presented the following claims: (1) "Ineffective assistance of couns[el] during and before guilty plea hearing" (§ 2255 Mot. at 5, id., ECF No. 1); and (2) "Ineffective assistance of appellate counsel" (id. at 6).

On November 19, 2013, Thompson filed a motion to amend his § 2255 Motion with two additional claims: (3) "Ineffective assistance of counsel for failing to object to the rule 11 violation which violated due process and resulted in a[n] involuntary plea" (Mot. to Amend § 2255 Mot. at 2, id., ECF No. 5-1); and (4) "Ineffective assistance of counsel for failing to appeal violation of rule 11 which violated due process" (id. at 3).

On December 17, 2013, Thompsonfiled a second motion to amend his § 2255 Motion with a fifth claim: (5) "Ineffective assistance of counsel for failure to prepare during and before sentencing" (Second Mot. to Amend § 2255 Mot. at 3, id., ECF No. 6).

On May 2, 2014, Thompson filed a third motion to amend his § 2255 Motion with a sixth claim: (6) "Ineffective assistance of counsel for failing to object to [M]agistrate [J]udge exercising the essential attributes of the judicial power addressed in [A]rticle III which is adjudicating and entering a judgment of guilty without being designated in violation of the [M]agistrates [A]ct and [A]rticle III of the [C]onstitution" (Third Mot. to Amend § 2255 Mot. at PageID 57, id., ECF No. 8-1).

On June 16, 2014, Thompson a fourth motion to amend his § 2255 Motion with a seventh claim: (7) "Ineffective assistance of counsel for failure to object to the miscalculation ofguidelines and argue separate [] offenses" (Fourth Mot. to Amend § 2255 Mot. at PageID 62, id. ECF No. 9).

On July 1, 2014, the Court granted Thompson's four motions to amend his § 2255 Motion and ordered Thompson to consolidate his claims into a single pleading. (Order Granting Mots. to Amend, id., ECF No. 11.) On July 8, 2014, Thompson filed a motion to correct the seventh claim he had previously added (Fifth Mot. to Amend § 2255 Mot., id., ECF No. 12). On July 21, 2014, pursuant to the Court's July 1, 2014, Order, Thompson filed an amended § 2255 motion (Am. § 2255 Mot., id., ECF No. 13) that included only two discrete claims: (1) "Ineffective assistance of counsel for failure to object to the guideline miscalculation, improper grouping and failure to prepare for sentencing" (Mem. in Supp. of Am. § 2255 Mot. at PageID 86, id., ECF No. 13-1); and (2) "Ineffective assistance of counsel during plea negotiations resulting in loss of plea deal and prejudice by failure to object to a Rule 11(B)(2) error which resulted in a [d]ue process violation and a[n] involuntary plea" (id. at PageID 88).

On July 22, 2014, the Court denied as unnecessary Thompson's motion to correct his seventh claim and directed the Government to respond to Thompson's amended § 2255 Motion within twenty-eight days. (Order Den. Mot. to Amend & Directing Gov't to Respond, id., ECF No. 14). On August 13, 2014, the Government filed a motion to release Thompson's trial counsel, Mr. Marty McAfee ("McAfee"), from his confidentiality obligations under the attorney-client privilege, so that the Government could obtain an affidavit of counsel with which to prepare a response to Thompson's § 2255 Motion. (Mot. to Release McAfee from Att'y-Client Privilege, id., ECF No. 15.) The Court granted the...