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Thomas v. United States

United States District Court, D. Maryland

December 13, 2018



          DEBORAH K. CHASANOW, United States District Judge.

         Presently 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.


         In 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.

         In 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 No. 117.

         On 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 release.

         On September 10, 2014, the Court granted the § 2241 Motion, stating that:

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.

         On 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).

         On 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).

         Judge 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.

         Thereafter, 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 ...

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