Thorne v. United States, 3:17-cv-234-MOC

CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
Writing for the CourtMax O. Cogburn Jr. United States District Judge
PartiesJERONZA THORNE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Decision Date29 June 2020
Docket Number3:17-cv-234-MOC,3:13-cr-293-MOC-1

JERONZA THORNE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

3:17-cv-234-MOC
3:13-cr-293-MOC-1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

June 29, 2020


ORDER

THIS MATTER is before the Court on Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and his pro se Motion to Amend Under Rule 15 of the Fed. Rules of Civ. P., (Doc. No. 7), as supplemented by appointed counsel, (Doc. No. 29). Several pro se Motions are also pending. (Doc. Nos. 20, 24).

I. BACKGROUND

Petitioner was arrested in a stash house robbery sting operation. The criminal Complaint was filed on October 18, 2013, and Petitioner's initial appearance was held that same day. (3:13-cr-293 ("CR") Doc. No. 1). The Government moved for detention at the initial appearance, which was granted at the preliminary hearing on October 24, 2013. (CR Doc. No. 10) (Detention Order).

The Indictment filed on November 19, 2013, charged Petitioner and two co-defendants, Glentavis McCorey and Jason Hill, with multiple counts surrounding a stash house robbery conspiracy. (CR Doc. No. 18). The charges pertaining to Petitioner are: Count (1), conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)); Count (2), conspiracy to possess with intent to distribute cocaine (21 U.S.C. § 846); Count (3), possession of a firearm in furtherance of a drug trafficking crime (Count 2) and crime of violence (Count 1) (18 U.S.C. § 924(c)); Count (4),

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conspiracy to use or carry a firearm in furtherance of a crime of violence (Count 1) and a drug trafficking offense (Count 2) (18 U.S.C. § 924(o)); and Count (5), possession of a firearm by a felon (18 U.S.C. § 922(g)(1)).

The case went to trial in January 2015.1 The jury found Petitioner guilty of all counts as charged in the Indictment. (CR Doc. No. 151).

The Presentence Investigation Report ("PSR") grouped Counts (1), (2), (4), and (5) and used the calculation for Count (2) which resulted in the highest adjusted offense level of 24. (CR Doc. No. 176 at ¶ 31, 49). The term of imprisonment for Count (3) is the term required by statute. (CR Doc. No. 176 at ¶ 53). Petitioner had seven criminal history points and two more points were added because he committed the instant offense while under a criminal justice sentence for possession of a firearm by a convicted felon, case number 3:06-cr-448. (CR Doc. No. 176 at 60, 61). This resulted in a total criminal history score of nine and a criminal history category of IV. (CR Doc. No. 176 at 62). The advisory Guideline range for Counts (1), (2), (4) and (5) was 77 to 96 months' imprisonment and Count (3) carried a mandatory consecutive term of 60 months' imprisonment. (CR Doc. No. 176 at ¶¶ 116-18).

In a Judgment docketed on February 8, 2016, the Court sentenced Petitioner at the bottom of the applicable Sentencing Guidelines range to a total of 137 months' imprisonment comprised of 77 months for Counts (1), (2), (4), and (5), concurrent, and 60 months for Count (3), consecutive, followed by a total of five years of supervised release. (CR Doc. No. 182).

Petitioner argued on direct appeal that the Court erred by denying his motion to dismiss the Indictment due to outrageous Government conduct and that sentencing manipulation warranted a downward departure sentence. The Fourth Circuit affirmed, United States v. Thorne, 661 F.

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App'x 791 (4th Cir. 2016), and the United States Supreme Court denied certiorari on March 27, 2017, Thorne v. United States, 137 S.Ct. 1386 (2017).

Petitioner timely filed the original § 2255 Motion to Vacate on April 25, 2017 arguing that (renumbered): (1) trial counsel was ineffective for failing to: (A) move to dismiss the warrant, Complaint and Indictment because the Hobbs Act conspiracy charge has no nexus with interstate commerce; (B) move to dismiss the indictment on speedy trial grounds; (C) challenge Counts (3), (4), and (5) because there were three Defendants and only two firearms; (D) file a motion to determine Petitioner's competency or pursue and insanity defense; (E) call defense witnesses at trial or impeach cooperating co-defendant McCorey; (F) challenge the jury instructions that lacked the elements of conspiracy; (G) challenge the Indictment or verdict for lack of allegations or prove that Petitioner knew in advance of the § 924(c) crime and that he aided and abetted it; (H) object that the record did not reflect that counsel read and discussed the revised PSR and addendum prior to sentencing; and (I) argue that the Court was authorized to sentence Petitioner below the mandatory minimum for the § 924(c) count; and (2) appellate counsel was ineffective for failing to raise each of these claims on direct appeal. (Doc. No. 1 at 17).

In the Motion to Amend filed on November 7, 2018, (Doc. No. 7), Petitioner additionally argues (renumbered): (3) the § 924(c) conviction in Count (3): (A) is duplicitous because it charges two predicate offenses in the same count and (B) because the predicate Hobbs Act conspiracy is not a predicate crime of violence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015).

On March 20, 2019, the Court Ordered Petitioner to show cause why his Motion to Amend should not be dismissed as time barred. (Doc. No. 9). Petitioner filed a Response arguing that, at the time the Motion was drafted, "the ruling [in Dimaya v. Sessions, 138 S.Ct. 1204 (2018)] had just came [sic] down ... about April 17, 2018" and that Petitioner did not previously realize that

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the case applied to him. (Doc. No. 10 at 2). In addition, he argues that he suffers a medical condition that requires him to be transferred between medical centers which disrupts his ability to find help with his legal proceedings. (Id.).

The Government filed a Response in Opposition to Petitioner's Motion to Amend arguing that Petitioner's new claims are untimely, procedurally barred, and without merit. (Doc. No. 16).

Petitioner filed a Reply arguing that he is ignorant of the law, that he has been undergoing "relentless" cancer treatment that is an extraordinary circumstance, and that the records show that he has acted diligently, and that neither his trial nor appellate lawyer raised the issues pertaining to Johnson or Dimaya. (Doc. No. 18 at 1).

The Court then appointed counsel to file a supplemental memorandum on Petitioner's behalf addressing the timeliness, procedural viability, and merit of the claims raised in Petitioner's pro se Motion to Amend. (Doc. No. 19). Before the Court issued its Order, However, Petitioner placed in the prison mail a pro se Motion to Amend/Correct that further addresses the § 924(c) claims. (Doc. No. 20). Petitioner also filed a pro se Motion to be Transported to an FMC after counsel was appointed. (Doc. No. 24).

Counsel filed a Supplemental Motion to Vacate arguing that Petitioner's first Motion to Amend is timely because it relates back to the original § 2255 Motion to Vacate and that the second Motion to Amend is timely because it relates back to the original § 2255 Motion to Vacate and is timely under § 2255(f)(3) because it was filed within one year of United States v. Davis, 139 S.Ct. 2319 (2019).

The Government filed a Response to Petitioner's Supplemental Motion to Vacate in which it argues that Petitioner's challenge to his Indictment as duplicitous is untimely, procedurally defaulted, and meritless. The Government concedes the timeliness of Petitioner's Davis claim but

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nevertheless argues that the claim is procedurally defaulted and meritless. Therefore, it argues, Petitioner's original and amended § 2255 claims should be dismissed and denied.

II. SECTION 2255 STANDARD OF REVIEW

A federal prisoner claiming that his "sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The Rules Governing Section 2255 Proceedings provide that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings . . ." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. Rule 4(b), 28 U.S.C. foll. § 2255. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION2

(1) Ineffective Assistance of Trial Counsel Claims

The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI. To show ineffective assistance of counsel, Petitioner must first establish deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms." Id. at

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688. A reviewing court "must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). The Strickland standard is difficult to satisfy in that the "Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." See Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The prejudice prong addresses whether counsel's deficiency affected the judgment. See Strickland, 466 U.S. at 691. A petitioner must demonstrate "a reasonable...

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