United States District Court, D. Maryland
DEBORAH K. CHASANOW, United States District Judge.
pending and ready for resolution is a motion filed by
Petitioner Gerald Thomas to reopen his 2014 28 U.S.C. §
2241 habeas corpus proceeding pursuant to Fed.R.Civ.P. 60(b).
The court appointed counsel for Mr. Thomas and ordered
counsel and the Government to file responses to the Motion,
and they have timely done so. ECF Nos. 189, 195, 196.
Accordingly, the matter is ripe for review. For the reasons
that follow, the Motion to Expedite will be denied as moot,
the Motions to Seal will be granted, and the Motion to Reopen
will be denied.
2007, Mr. Thomas pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g), and one count of possession of an unregistered short
barreled shotgun, in violation of 26 U.S.C. § 5841.
Based on his prior convictions for Maryland housebreaking
(two convictions) and Virginia statutory burglary, Mr. Thomas
was designated as an armed career criminal under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e), which had the effect triggering a statutory minimum
sentence. See ECF No. 175 at 1. He received
concurrent terms of imprisonment of 144 months for the 18
U.S.C. § 922(g) conviction and 120 months for the 26
U.S.C. § 5841 conviction. ECF No. 72 at 1-2. He also
received concurrent terms of supervised release of 5 years
for the 18 U.S.C. § 922(g) conviction and 3 years for
the 26 U.S.C. § 5841 conviction. Id. at 3.
2010, Mr. Thomas filed a habeas corpus petition under 28
U.S.C. § 2241, which the Court construed as a habeas
corpus motion under 28 U.S.C. § 2255. ECF Nos. 111, 113,
114. The § 2255 motion was denied as time-barred. ECF
September 7, 2014, the Federal Public Defender filed an
Emergency Consent Motion to Correct Sentence under 28 U.S.C.
§ 2241 (hereinafter “§ 2241 Motion”) on
Mr. Thomas' behalf and with the Government's consent.
ECF No. 175. The § 2241 Motion argued that Mr. Thomas no
longer qualified as an armed career criminal based on
Descamps v. United States, 133 S.Ct. 2276 (2013),
United States v. Henriquez, 757 F.3d 144 (4th Cir.
2014), and United States v. Martin, 753 F.3d 485
(4th Cir. 2014). ECF No. 175 at 2. Without this designation,
Mr. Thomas' 144-month sentence for the § 922(g)
conviction exceeded the statutory maximum of 120 months'
imprisonment. Counsel further noted that, without the
statutory and sentencing guidelines implications of an ACCA
designation, “Mr. Thomas' non-ACCA Guidelines range
(corresponding to offense level 18 and criminal history
category VI) is now 57 to 71 months imprisonment on both
counts of conviction.” Id. Because Mr. Thomas
had already served 86 months in prison, the parties requested
that Mr. Thomas receive a sentence of time served plus two
weeks of incarceration for release planning on both counts.
Id.; see also ECF No. 195 at 2 (computing
actual time served). The parties did not make any request
regarding Mr. Thomas' pending terms of supervised
September 10, 2014, the Court granted the § 2241 Motion,
Upon consideration of the parties' joint recommendation
[for a sentence of time served plus two weeks], the factors
set forth in 18 U.S.C. § 2241, and the amount of time
Petitioner has already served in custody, the court has
determined that a sentence of imprisonment of time served
plus two weeks is a reasonable and appropriate sentence.
ECF No. 177. Accordingly, the court entered an amended
judgment sentencing Mr. Thomas to time served plus two weeks.
ECF Nos. 177, 178 at 2. The amended judgment re-imposed the
original terms of supervised release. ECF No. 178 at 3. Thus,
Mr. Thomas was released by the end of September 2014 and
began his period of supervised release.
April 13, 2015, the court ordered that “pursuant to 18
U.S.C. 3605, the jurisdiction of [Mr. Thomas' case] be
transferred with the records of this Court to the United
States District Court for the Western District of
Virginia” upon that court's acceptance. ECF No.
180. The transfer order stated “This Court hereby
expressly consents that the period of probation or supervised
release may be changed by the District Court to which this
transfer is made without further inquiry of this
court.” Id. On May 26, 2015, the Western
District of Virginia accepted jurisdiction. Id.;
see also United States v. Thomas,
5:15-cr-00017-MFU-RSB-1 (W.D. Va.), PACER No. 1 (reflecting
transfer of probation supervision).
April 6, 2017, Judge Urbanski of the Western District of
Virginia issued a warrant for Mr. Thomas' violation of
the terms of his supervised release. Thomas, PACER
No. 3. The warrant was issued based on allegations that Mr.
Thomas committed a state crime when he pled guilty to
possession of schedule I/II drugs in Virginia state court on
January 17, 2017, and that he voluntarily admitted to using
crack cocaine at least 11 times between March 2015 and August
2015, and an additional two times in early 2017. Id.
Mr. Thomas did not contest the charged violations, and he
requested a below-Guidelines revocation term.
Thomas, PACER No. 19. As relevant to the instant
Motion, Mr. Thomas argued that
The government and defense counsel agreed that his non-ACCA
guidelines range was 57-71 months, and at the time the motion
was filed, he had already overserved. He served a total of
slightly more than 86 months, having been taken into custody
on July 11, 2007 and released on approximately September 23,
2014. See PSR p. 1; Ex. 2.
The court should consider the excess time Mr. Thomas has
already served in federal custody when determining the
appropriate sentence on his violation. Had the sentencing
judge provided a specific term of months as his amended
sentence, BOP would credit the excess time he had overserved
to him against any future violations. Because the amended
sentencing order merely states that he is sentenced to
“time served plus two weeks, ” however, the
Bureau of Prisons will not provide him credit for that time,
even though it is clear that he overserved his underlying
federal sentence by between 15 and 29 months. This court
should address that inequity by reducing any sentence it
imposes on Mr. Thomas by the time that he overserved.
In addition, because Mr. Thomas had only two weeks to prepare
for release, he did not have the chance to access many of the
Bureau of Prisons programs designed to facilitate reentry and
help ex-offenders manage their addictions and develop the
skills they will need to avoid recidivism and be successful
post-incarceration. The effects of his precipitate release
are an additional relevant factor of his history and
characteristics that this Court should consider in mitigation
of his supervised release violation.
Id. at 3 (internal citations omitted).
Urbanski sentenced Mr. Thomas to 36 months' imprisonment
for violating supervised release as to his § 922(g)
conviction, and to a concurrent term of 24 months'
imprisonment as to the § 5841 conviction. Judge Urbanski
did not order Mr. Thomas to serve a period of supervised
release upon completion of his revocation sentence.
Mr. Thomas filed a 28 U.S.C. § 2255 Motion in the
Western District of Virginia, arguing that he received
ineffective assistance due to counsel's failure to object
to an unlawful term of supervised release of five years and a
revocation sentence of three years on his § 922(g)
conviction, which had decreased because he was no longer
designated an armed career criminal. See Thomas,
PACER Nos. 26, 31; 18 U.S.C. § 3581(b)(3) (stating that
conviction carrying a sentence of not more than 12 years is a
Class C felony); 18 U.S.C. § 3583(b), (e) (stating that,
for a Class C felony, the authorized terms of supervised
release and imprisonment upon revocation are, respectively,
not more than three years and not more than two years); 18
U.S.C. § 924(b) (stating that violation of ...