United States v. Faulls
| Decision Date | 04 May 2023 |
| Docket Number | 3:13CR00001 |
| Parties | UNITED STATES OF AMERICA v. THOMAS EARL FAULLS, SR., Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Sean M. Welsh, Assistant United States Attorney, Charlottesville Virginia, for United States;
Arin Melissa Brenner, Assistant Federal Public Defender, Roanoke Virginia, for Defendant.
The defendant, a federal inmate sentenced by this court, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel, prosecutorial misconduct, and the imposition of an illegal sentence. In addition, he seeks to vacate two counts of conviction on the ground that their predicate offenses were not crimes of violence. For the reasons stated, I will grant the defendant's § 2255 motion in part and direct a resentencing.
The defendant, Thomas Earl Faulls, Sr., and his estranged wife Lori Faulls, were married for nearly 25 years and have two children together. In 2012, the couple separated, and Lori moved out of the marital home located in Mineral, Virginia. She stayed briefly with a friend before moving in with the Faulls' daughter, Britnee, in Williamsburg, Virginia. Following their separation, Faulls harassed Lori on several occasions, which led to violent episodes, three of which are relevant here.
First on June 28, 2012, when Lori returned to the marital home to retrieve some personal effects, Faulls began yelling at her for leaving him and blamed her for their children not returning his phone calls. He went outside to the detached garage and returned shortly thereafter with a firearm. Lori asked Faulls if he was going to kill her, to which he laughed in response. Faulls then began yelling at Lori about where she had stayed the night before. Lori called the friend with whom she had stayed, and Faulls talked to the friend, screaming at the friend that she had “ruined [their] marriage” and stating that “you just killed your friend.” Presentence Investigation Report (PSR) ¶ 4, ECF No. 73; Trial Tr. 93, ECF No. 90. Lori escaped the situation, but after she fled, Faulls chased after her in his truck and ran it into the back of her car. She claimed that she had never reported the incident because she had been “scared to death.” Trial Tr. 96, ECF No. 90.
Second, on August 18, 2012, Faulls showed up at Britnee's apartment and started screaming at Lori and Britnee for not answering their phones. He “punched Lori in this chest and verbally threatened his daughter.” PSR ¶ 5, ECF No. 73. He took their car keys and cell phones and refused to allow them to leave the residence. It was only after Britnee gave him $300 that he allowed her (but not Lori) to leave.
Faulls left a while later, taking Lori's vehicle instead of his own. He returned afterwards to exchange the vehicles but made no further contact with Lori.
Finally, a few days later, on August 22, 2012, Faulls asked Lori to drive him to a repair shop to pick up his truck. Afraid that he would show up at their daughter's apartment again if she refused, Lori agreed to pick him up from the marital home. After they departed to pick up the truck, Faulls pretended to make a call to ensure the truck repair was finished. Thereafter, they turned around and returned to the house. It was then that Faulls admitted that he already had the truck at the house. He parked Lori's car in the garage and took her cell phone. He then told her that they were going to take a trip, and with zip ties in hand, asked if she “wanted to do this the easy way or the hard way.” Trial Tr. 112, ECF No. 90. She told him that she would “just come home,” and that he “d[idn't] have to do this.” Id. Faulls disregarded her pleas and escorted her to the passenger side of the truck. Lori saw a shotgun in the backseat and Faulls told her that he had fixed the door handle so it would not open from the inside and jammed the window so that it would not roll down all the way.
Faulls began driving north and eventually they stopped at a hotel near Elkins, West Virginia, for the night. The next morning, Faulls attempted to have sexual intercourse with Lori. She told him that she did not want to and that she felt uncomfortable, but ultimately acquiesced because she was “scared for [her] life,” “he had a gun,” and she “didn't want to make him angry.” Id. at 117. Afterwards, Faulls took Lori to breakfast and then to various retail stores to purchase clothes and toiletries. They continued driving and that evening, stopped in Lewisburg, West Virginia, where Faulls took Lori to a local restaurant and bar. Faulls drank heavily, while Lori had only one drink. Lori left to go to the bathroom a few times over the course of the evening, and one time, as she came back, she overheard Faulls telling the “three guys sitting next to [them] at the bar . . . that he had kidnapped [her].” Id. at 124. She did not ask anyone for help or attempt to call the police, even though there was a pay phone located near the bathroom.
After leaving the bar, they attempted to book a room at a nearby hotel, but there were no rooms available. As they started walking back towards the truck, Lori realized that Faulls was no longer close behind her and so she fled. She approached two women and asked if they could take her to the nearest police station. They drove her to the nearby sheriff's office, where Lori reported what had happened to her. The sheriffs' deputies went to find Faulls and immediately placed him under arrest. A subsequent search of his truck revealed the zip ties and the shotgun.
In January of 2013, a grand jury of this court returned a three-count Indictment, charging Faulls with kidnapping, in violation of 18 U.S.C. § 1201(a)(1) (Count One); interstate domestic violence, in violation of 18 U.S.C. §§ 2261(a)(2), (b)(4) (Count Two); and possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Three). At trial, the court allowed the government to introduce evidence of the June 28th and August 18th incidents pursuant to Federal Rule of Evidence 404(b). However, the court twice gave the jury a limiting instruction regarding this evidence, explaining that it could be considered only to prove the defendant's “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” in connection with the charges and not as evidence of the defendant's character or propensity to commit the alleged offenses. Trial Tr. 59, 97, ECF No. 90.
The jury convicted Faulls of all three counts. The jury also determined beyond a reasonable doubt that as to Count Two, Faulls had committed aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a)(2), and that he had possessed a firearm in furtherance of the kidnapping, as alleged in Count One. Jury Verdict 1, 2, ECF No. 60.
At sentencing on July 17, 2014, by the late District Judge Glen E. Conrad, the court adopted a guideline scoring for Counts One and Two consisting of a total offense level of 40 and a criminal history category of I, with a resulting advisory sentencing range of 292 to 365 months' imprisonment. The guideline sentence for Count Three was 60 months, the statutory minimum term of imprisonment, to be served consecutive to any other sentence. Judge Conrad decided to vary downward in the guideline scoring for Counts One and Two to a total offense level of 38, based on Faulls' mental health issues, Sent'g Tr. 59-60, ECF No. 88, which level carried a sentencing range of 235 to 293 months. Faulls was thus sentenced to a total of 295 months' imprisonment, consisting of 235 months on each of Counts One and Two, to be served concurrently, and 60 months on Count Three, to be served consecutively to the terms imposed on Counts One and Two, to followed by 15 years of supervised release on each count, to be served concurrently. The court also required Faulls to register as a sex offender under the Sex Offender Registration and Notification Act, 42 U.S.C § 16911, now codified at 34 U.S.C. § 20911.
Faulls appealed and argued that (1) his counsel had been constitutionally ineffective during his cross-examination of a witness and in failing to object to the court's decision to keep the jury late on day one of the trial; (2) the court erred in admitting evidence of the two prior June and August incidents; and (3) the court erred in requiring Faulls to register as a sex offender based on his conviction for interstate domestic violence. The Fourth Circuit rejected all of these arguments and affirmed. United States v. Faulls, 821 F.3d 502 (4th Cir. 2016).
Thereafter Faulls filed the present § 2255 motion.[1] The defendant asserts in his initial pro se motion that: (1) his trial counsel was constitutionally ineffective in failing to adequately prepare for trial, specifically by not interviewing certain witnesses or seeking a psychological evaluation of Lori; (2) his sentence enhancement was illegal, because he did not use the firearm in a criminal manner and his offense was not a sex offense, as any sexual acts between himself and Lori were consensual; and (3) government counsel committed prosecutorial misconduct during closing arguments. He also filed an affidavit, signed by himself, stating that he had receipts for purchases made by Lori at the various retail stores; that the bar owner would have testified that Lori “was not being held against her will,” and that she had walked by a telephone near the bathroom but “did not use the opportunity to call the police”; that he had limited interaction with trial counsel and during their third meeting, which occurred two days before trial, his counsel did not “discuss any evidence with [him], nor had he investigated...
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