Thompson v. United States
| Decision Date | 10 April 2023 |
| Docket Number | 1:23-cv-00504-CDB (HC) |
| Parties | ALFONSO THOMPSON, Petitioner, v. UNITED STATES OF AMERICA,[1] Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner Alfonso Thompson (“Petitioner”) is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc 1).[2] Petitioner is currently in the custody of the Bureau of Prisons (“BOP”) at the United States Penitentiary located in Atwater California, and filed the instant petition on April 4, 2023. Id. Petitioner seeks review of the sentence imposed on him by the United States District Court for the District of New Mexico. For the reasons that follow, the Court will recommend that the petition be dismissed with prejudice.
On November 27, 2012, Petitioner was charged by indictment in the District of New Mexico with being a felon in possession of a firearm. (Doc. 1 at 11); see United States v Thompson, No. 1:12-cr-03013-JB-CG-1 (D.N.M.) (Doc. 2). On January 14, 2014, Petitioner entered a guilty plea pursuant to a plea agreement with the United States. (Doc. 1 at 15-23); Thompson, No. 1:12-cr-03013-JB-CG-1 (Docs. 60-61). Petitioner alleges he was “promised 8 years in exchange for [pleading guilty],” and in its sentencing memorandum, the United States concurred that the parties' agreement was for a sentence of eight years of imprisonment. (Doc. 1 at 3, 11).[3] However, the plea agreement also states, “[t]he parties acknowledge that if the Court determines that Defendant's criminal history establishes him as an armed career criminal under 18 U.S.C. § 924(e) (“Armed Career Criminal Act hereinafter ACCA”), then the Court must reject this plea agreement.” Id. at 19, ¶ 10(c).
On April 3, 2014, Petitioner's presentencing report (“PSR”) was disclosed. Id. at 12. The PSR concluded that Petitioner qualified as an “armed career criminal under [the ACCA] and is therefore subject to a mandatory minimum penalty of 15 years imprisonment.” Id. at 11. Specifically, the PSR stated Petitioner had been convicted of battery against a house member with a deadly weapon and two attempted murder convictions. Id. at 11-12.
On May 12, 2014, the United States filed a sentencing memorandum advising the sentencing court that if Petitioner is deemed an armed career criminal, then the agreed upon disposition under the plea agreement would constitute an illegal sentence. (Doc. 1 at 11); Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 64). On June 24, 2014, at a status conference, Petitioner made an oral motion to withdraw his plea of guilty. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 77). The District Court granted a withdrawal of Petitioner's plea of guilty. Id.
On July 2, 2014, Petitioner entered a guilty plea pursuant to a second plea agreement with the United States in which the parties agreed the Petitioner would be sentenced to 15 years of imprisonment. See Thompson, No. 1:12-cr-03013-JB-CG-1 (Docs. 75 at ¶ 10, 76). On October 14, 2014, the District Court of New Mexico found Petitioner qualified as an armed career criminal and sentenced Petitioner to 180 months, to be served consecutively to any sentence imposed in D-202-CR-2012-3537. Thompson, No. 1:12-cr-03013-JB-CG-1 (Docs. 91, 92).
On June 6, 2016, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, to the District Court of New Mexico. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 97). Petitioner argued his sentence was unconstitutional pursuant to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Id. The United States filed an opposition to the petition on August 4, 2016. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 100).
On November 8, 2016, the Honorable Magistrate Judge Carmen E. Garza of the District Court of New Mexico issued findings and recommendations recommending the petition be dismissed with prejudice. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 103). The magistrate found Petitioner's sentence was properly enhanced under the ACCA because his attempted first-degree murder qualified as a violent felony. Id. Petitioner filed objections to the findings and recommendations on December 7, 2016. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 106).
The Honorable District Judge C. LeRoy Hansen of the District Court of New Mexico issued an order adopting the magistrate judge's findings and recommendation on January 19, 2017. Thompson, No. 1:12-cr-03013-JB-CG-1 (Docs. 107-08). That same day, Petitioner sought a certificate of appealability to the Tenth Circuit Court of Appeals. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 109). On January 9, 2018, the Tenth Circuit denied Petitioner's request for a certificate of appealability and dismissed his appeal. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 122). On June 25, 2018, Petitioner filed a petition for writ of certiorari to the Supreme Court of the United States. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 123). The Supreme Court denied the petition on October 1, 2018. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 124).
On December 3, 2018, Petitioner filed a second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, to the District Court of New Mexico. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 125). On June 28, 2019, the Honorable District Judge James O. Browning of the District of New Mexico issued an order dismissing the second petition. Thompson, No. 1:12-cr-03013-JB-CG-1 (Doc. 128). The District Court found Petitioner sought to relitigate the same issue that his first petition presented and did not present “any newly discovered evidence undermining his conviction or raise a new rule of constitutional law.” Id. at 5. The District Court held Petitioner's petition was a second or successive § 2255 petition filed without the requisite authorization and dismissed the petition for lack of jurisdiction. Id. at 5-7.
On April 4, 2023, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 to this Court. (Doc. 1).
Petitioner claims the District Court of New Mexico improperly sentenced him under the ACCA. Id. at 1-2. Petitioner argues his two attempted murder convictions do not qualify as violent predicate crimes under the ACCA. Id. at 2 (citing State v. Price, 104 N.M. 703 (N.M. Ct. App. 1986); Borden v. United States, 141 S.Ct. 1817 (2021)). Next, Petitioner asserts a claim of ineffective assistance of counsel as his attorney failed to challenge his armed career criminal designation. Id. at 3-4. Petitioner contends his sentence is improper as the district court disregarded his “plea agreement for 8 years.” Id. at 2. Petitioner also asserts he was coerced into agreeing to a plea agreement. Id. at 3.
Petitioner claims his habeas case needs to be “reopened” in light of the Supreme Court's decision in Concepcion v. United States, 142 S.Ct. 2389 (2022). Id. at 4. Petitioner contends he is actually innocent of his sentence as “the court abused its discretion by applying this enhancement allowing the prosecution to punish for what was not written in the indictment.” Id. at 4-5 (citing United States v. Wharton, No. ELH-13-0043, 2014 WL 1430387 (D. Md. April 10, 2014)). Petitioner request this Court reverse his sentence to the original sentence of eight years. Id. at 5.
Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary review of each petition for writ of habeas corpus.[4] Pro se habeas corpus petitions are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must dismiss a petition “[i]f it plainly appears from the petition.. .that the petitioner is not entitled to relief.” Habeas Rule 4; Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of a constitutional error. Mayle v. Felix, 545 U.S. 644, 655 (2005) (). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491. A petition for habeas corpus should not be dismissed without leave to amend “unless it appears that no tenable claim for relief can be pleaded were such leave to be granted.” Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam).
In general, a federal prisoner who wishes to challenge the validity or constitutionality of his federal conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163; Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000).
In contrast, a prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the district where the petitioner is in custody. Hernandez, 204 F.3d at 865. Section 2241(a) provides that writs of habeas corpus may be granted by the district courts “within their respective jurisdictions.” A writ of habeas corpus operates not upon the prisoner, but upon the prisoner's custodian. Braden v 30th Judicial Circuit Court, 410 U.S. 484, 494-495 (...
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