United States v. Thomas
| Docket Number | 5:16-cr-0001 |
| Decision Date | 23 November 2021 |
| Parties | UNITED STATES OF AMERICA v. LAMARCUS THOMAS, Petitioner |
| Court | U.S. District Court — Western District of Virginia |
LaMarcus Thomas, a federal inmate currently serving a 360-month sentence for child pornography offenses, has filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 109. On November 20, 2020, the United States moved to dismiss Thomas' petition and Thomas has filed a reply. ECF Nos. Ill. 115, 116. For the reasons set forth below, the court GRANTS the government's motion to dismiss and DENIES Thomas' motion for § 2255 relief.
On January 13, 2016, Thomas was indicted on six counts of sexual exploitation of children involving two children identified as Minor 1 and Minor 2. On January 11, 2017, Thomas entered into a plea agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, where he pled guilty to Counts 2 and 6 of the indictment. Count 2 charged Thomas with using a minor to engage in sexually explicit conduct for the purpose of producing one or more visual depictions of such conduct knowing or having reason to know that such visual depiction would be transported in or affecting interstate or foreign commerce, or which visual depiction was produced using materials that had been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, in violation of 18 U.SC. §§ 2251(a) and 2251(e). Plea Agreement, ECF No. 54 at 1.
Count 6 charged Thomas with using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, which visual depiction was produced using material that had been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, in violation of 18 U.S.C. §§ 2251 (a) and 2251(e). Both counts carried statutory sentences of 15 to 30 years and United States Sentencing Guidelines sentences of life. Id. at 2.
The plea agreement provided that Thomas would be sentenced to a term of between 180 and 510 months. Thomas also agreed to a lifetime period of supervised release. Id. at 3. Thomas agreed to waive his right to appeal, except for appealing the denial of a suppression motion by the district court, and any other issue that could not be waived by law. He also waived his right to collaterally attack his sentence, except for issues of ineffective assistance of counsel. Id. at 8-9.
Thomas entered a guilty plea on January 20, 2017. ECF Nos. 56, 58, 59. On August 9, 2017, he was sentenced to 360 months each on Counts 2 and 6, to run concurrently, to be followed by a lifetime period of supervised release. ECF No. 91.
Represented by counsel, Thomas filed an appeal with the Fourth Circuit Court of Appeals, challenging the denial of the suppression motion, and the Fourth Circuit affirmed on November 8, 2018. ECF No. 95, 96. The Fourth Circuit denied rehearing en banc. ECF No." 98. Thomas sought a writ of certiorari from the United States Supreme Court, which was denied on October 8, 2019.
Proceeding pro se, Thomas filed this motion for relief pursuant to § 2255 on September 30, 2020. ECF No. 109. He argues that his attorney[1] provided ineffective assistance of counsel in the following ways: (1) she failed to recognize that his conduct may not have satisfied the elements of the charge; (2) she failed to explain to him that he could plead guilty to one count of the indictment and take the other count to trial; and (3) she failed to argue his appellate case and "conceded." Thomas also argues that the Fourth Circuit erred in its decision regarding the suppression motion.
The government responds that the evidence of images and videos in his case meet the elements of the child pornography statute. The government also argues that Thomas' attorney provided effective assistance both when she advised him to plead guilty and also when she represented him on appeal. The government further argues that Thomas is estopped from raising his arguments about the suppression motion because the Fourth Circuit has ruled on it.
To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A petitioner collaterally attacking his conviction or sentence via a § 2255 petition bears the burden of showing by a preponderance of evidence that he is entitled to relief. White v. United States. 352 F.Supp.2d 684, 687 (E.D. Va. 2004) ).
Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish that counsel's assistance was not reasonably effective, a defendant must satisfy a two-prong analysis: he must show both that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by counsel's alleged deficient performance. Strickland, 466 U.S. at 669.
When considering the reasonableness prong of Strickland, courts apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also Gray v. Branker. 529 F.3d 220, 228-29 (4th Cir. 2008). "The performance of counsel is measured in terms of 'reasonableness under prevailing professional norms."' Gray. 529 F.3d at 228 . The court must judge counsel "on the facts of the particular case," and assess counsel's performance "from counsel's perspective at the time." Strickland. 466 U.S. at 689.
To satisfy the prejudice prong of Strickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. When a petitioner argues that he received ineffective assistance of counsel as part of a plea agreement, he must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Thomas argues that his attorney was ineffective because she convinced him to plead guilty to a charge that the government's evidence did not fully support. Thomas pled guilty to two counts of Sexual Exploitation of a Minor in violation of 18 U.S.C. § 2251(a). The statute provides in relevant part the following:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
18 U.S.C.A. § 2251(a).[2] "Sexually explicit conduct" is defined as actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the anus, genitals, or pubic area of any person. 18 U.S.C. § 2256(2)(A).
In Thomas' case, the offenses involved two minors who appeared to sleep through the incidents. Images of Thomas and the children were found on Thomas' cell phone. Presentence Investigation Report, ECF No. 85, ¶ 4. Count 2 involved a child identified as Minor 1. The images that supported the conviction included images of Thomas' hand and fingers near or touching Minor l's penis and Thomas' erect penis touching or nearly touching Minor l's lips. Id., ¶ 5. The images that supported Count 6 showed Thomas masturbating near or over the exposed abdomen of Minor 2. Id., ¶ 7. Thomas argues that under the definition of "child pornography," the conduct in which he engaged in Count 6 does not suffice to support his conviction on that count. He asserts that the child was asleep and the statute requires that the child be "engaged" in sexually explicit conduct.[3]
Most courts looking at § 2251 (a), have determined that a person can be convicted under the statute even if the minor is asleep in the images. In United States v. Lohse 797 F.3d 515 (7th Cir. 2015), the court rejected the argument that the statute required either active participation by the minor or active sexual conduct to an unconscious minor by an adult defendant. Id. at 521. There, the defendant took images of himself, naked, standing over an asleep, clothed child with his penis near the child's cheek and mouth as he held her hair with his hand. In another image he straddled the child and used his hand to place his penis near her...
To continue reading
Request your trial