United States District Court, D. Maryland
WILLIAM M. NICKERSON SENIOR UNITED STATES DISTRICT JUDGE
the Court is a Petition to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 filed by Petitioner
Hilton Thomas. ECF No. 471. The Government has opposed the
Petition, and Petitioner has filed a reply. Because the
pleadings, files, and records conclusively show that
Petitioner is not entitled to relief, the Court concludes
that an evidentiary hearing is not necessary, United
States v. Diaz, 547 Fed.App'x 303, 304 (4th Cir.
2013) (citing United States v. Witherspoon, 231 F.3d
923, 925-27 (4th Cir. 2000)), and the Petition will be
December 7, 1998, Petitioner was convicted on all counts of a
four-count indictment: Count One - Conspiracy to Murder in
Aid of Racketeering, in violation of 18 U.S.C. §
1959(a)(5); Count Two - Murder in Aid of Racketeering, in
violation of 18 U.S.C. § 1959(a)(1); Count Three -
Conspiracy to Retaliate Against Witnesses, in violation of 18
U.S.C. § 371; and Count Four - Conspiracy to Distribute
Narcotics, in violation of 18 U.S.C. § 846. He was
subsequently sentenced to 120 months as to Count One, life as
to Count Two, 60 months as to Count Three, and life as to
Count Four, all to run concurrently. The life sentence under
Count Two was imposed consistent with the then-applicable
mandatory sentencing guidelines. The Fourth Circuit affirmed
his conviction and sentence. United States v.
Williams, 18 Fed.Appx. 52 (4th Cir. 2001).
25, 2012, the Supreme Court issued Miller v.
Alabama, 132 S.Ct. 2455 (2012), in which the- Court held
that the imposition of a mandatory,
life-without-the-possibility-of-parole sentence on a homicide
offender who was a juvenile at the time of the offense
violates the Eighth Amendment. On June 8, 2015, this Court
dismissed a Petition filed by Petitioner which included a
claim under Miller v. Alabama, but also issued a
Certificate of Appealablity on the issue of whether
Miller v. Alabama is retroactively applicable to
cases on collateral review. Petitioner then filed a timely
appeal. Subsequently, the Supreme Court in Montgomery v.
Louisiana, 136 S.Ct. 718 (2016), answered the question
of retroactivity in the affirmative. The parties then filed a
joint motion to remand and on February 3, 2016, the Fourth
Circuit vacated Petitioner's sentence and remanded the
case to this Court for resentencing. Petitioner was
resentenced on June 1, 2016, to a term of 480 months: 120
months as to Count One, 480 months as to Count Two, 60 months
as to Count Three, and 240 months as to Count Four, with the
terms of imprisonment as to Counts One, Three, and Four
running concurrent with the term for Count Two.
30, 2017, Petitioner filed the instant petition to vacate
this new sentence, raising a single issue. Petitioner claims
that the Government engaged in prosecutorial' misconduct
by including an alleged false statement in its resentencing
memorandum. Petitioner's counsel for resentencing,
Katherine Newberger, had argued in her resentencing
memorandum that a 30-year sentence would be appropriate
because that is the sentence that Petitioner's trial
counsel, Tony Gioia, recalled that the Government would have
offered had Petitioner agreed to plead guilty prior to trial.
ECF No. 419 at 2. The Government countered in its
resentencing memorandum that the "30-year offer was
(according to Mr. Gioia} contingent, not only on Mr. Thomas
pleading guilty, but on his cooperation in the prosecution of
others. Ex. J." ECF No. 461. Petitioner claims in the
instant Petition that the plea offer was not contingent and
that, were it not for the Government's false
representation that it was, the Court "would have
strongly considered imposing a 30 year sentence of
imprisonment at Petitioner's resentencing
proceeding." ECF No. 477 at 7.
of this same argument, Petitioner disputes that the document
referenced by the Government in its resentencing memorandum
as "Ex. J" ever actually existed and cites the
Government's reference to a non-existent exhibit as
further evidence of prosecutorial misconduct. Based upon the
apparent belief that the Government was referencing a written
plea agreement, Petitioner represents in his Petition that he
made a Freedom of Information request for that document
through the United States Department of Justice Executive
Office for United States Attorneys, but no such document was
produced. ECF No. 471 at 5. After the Government explained in
its opposition to the Petition that Exhibit J was a printout
of an email exchange between Government counsel and Mr. Gioia
regarding Mr. Gioia's memory of any plea offer,
Petitioner contacted Ms. Newberger to inquire if she had
information about Exhibit J. Ms. Newberger responded that
Government counsel "never actually filed an Exhibit J.
So there is no exhibit J." ECF No. 477-1.
true that Exhibit J to the Government's Resentencing
Memorandum was not filed in the Court's electronic filing
system. A paper copy of the exhibit, however, was provided to
the Court and was reviewed by the Court prior to the
resentencing. It seems apparent from the record that Ms.
Newberger was also provided a copy of Exhibit J with the
Government's resentencing memorandum. In her reply, she
raises no concerns about any missing exhibit and she
specifically acknowledges that Petitioner failed "to
plead guilty and cooperate."
ECF No. 463 at 9 (emphasis added). While the Government's
failure to properly docket an exhibit might constitute an
instance of minor carelessness, it does not evince
establish prosecutorial misconduct, Petitioner must
demonstrate (1) that the conduct of the United States was in
fact improper and (2) that the improper conduct prejudicially
affected Petitioner's substantial rights so as to deprive
him of a fair trial or sentence. United States v.
Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). The Court
finds no evidence of improper conduct on the part of the
Government. After Ms. Newberger represented in her
resentencing memorandum that Mr. Gioia believed that the
Petitioner would have been offered a 30-year sentence had he
signed a plea agreement, Government counsel emailed Mr. Gioia
to inquire if the 30-year offer was premised on cooperation.
Ex. J to Government's Resentencing Mem. Mr. Gioia
responded, "Although I have no specific recall, given
that Jerry Williams was already serving a life sentence, I
assumed that a plea agreement would have included testifying
against the remaining defendant (Montemarano's
client)." Id. Based on that email exchange, the
Government accurately represented to the Court that the
"30-year offer was (according to Mr. Gioia)
contingent, not only on Mr. Thomas pleading guilty, but on
his cooperation in the prosecution of others." ECF No.
461 (emphasis added).
were the Court to find the Government's representation
was in some way misleading, the Court would not find it
prejudicial. The undersigned presided over the trial, the
initial sentencing, and the resentencing and determined that
a sentence of 480 months was appropriate for the reasons
stated on the record at the resentencing. See, ECF
No. 470, Tr. of 6/1/16 Resentencing at 2-6. Whether the
Government's offer of a 30-year plea agreement was
contingent or non-contingent on Petitioner's cooperation
would not have altered the Court's reasoning.
no merit in Petitioner's claim of prosecutorial
misconduct, the Court will deny the Petition. Because the Court
will deny Petitioner's motion under § 2255, it must
determine whether a certificate of appealability should
issue. A certificate of appealability shall not issue absent
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
As reasonable jurists would not find this Court's denial
of Petitioner's Section 2255 Petition debatable, a
certificate of appealability will not issue.
separate order will issue.
 To complete the Court record, the
Court will attach this document to this ...