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United States v. Thomas

United States District Court, D. Maryland

July 5, 2019

UNITED STATES OF AMERICA
v.
BARRY THOMAS, Petitioner.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE

         This post-conviction case pits the principle of judicial finality against the precept of justice. The government advocates for finality. But, under the circumstances attendant here, finality must yield to justice, the hallmark of our legal system.

         Barry Thomas, Petitioner, was convicted under 18 U.S.C. § 924(c) and was sentenced as a career offender to 235 months of imprisonment (i.e., 19 and a half years).[1] The career offender designation was based on two predicate Maryland drug convictions. However, one of those offenses was subsequently vacated as a result of a successful coram nobis proceeding litigated by Thomas in the Circuit Court for Baltimore City.

         Accordingly, through counsel, Thomas filed a “Request For New Sentencing Hearing” (ECF 142), as well as an addendum. ECF 144. The government filed an opposition to the Petition (ECF 148), supported by exhibits. Petitioner replied. ECF 149. At the Court's request (ECF 160), Thomas filed the federal sentencing transcript (ECF 162), as well as a supplemental memorandum. ECF 165. I shall refer to ECF 142 and ECF 165 collectively as the “Petition.” And, the government filed a supplemental opposition. ECF 166. I shall refer to ECF 148 and ECF 166 collectively as the “Opposition.”

         Thomas agrees with the government that his submissions should be construed under 28 U.S.C. § 2255. See ECF 148 at 3; ECF 149 at 1. Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . .” The Court held a hearing on June 21, 2019, attended by Petitioner, at which argument was presented.

         In opposing the Petition, the government advances a host of contentions. It argues that there is no legal or statutory authority to support Thomas's request for relief. Moreover, the government maintains that the Petition was untimely filed, and Thomas has not established a basis for equitable tolling. Further, the government asserts that, even if the Petition was timely filed, it is barred based on procedural default, because Thomas never appealed his sentence. And, the government contends that, even if the Petition was timely filed, and even in the absence of a procedural default, Petitioner's “claim that he was erroneously sentenced as a career offender under the United States Sentencing Guidelines is not subject to collateral review.” ECF 148 at 1. At oral argument, the government also underscored the importance of finality in regard to a criminal case.

         By Order of June 28, 2019 (ECF 170), I granted the Petition, indicating that a Memorandum Opinion would follow to explain the ruling. The Petitioner will be resentenced on July 8, 2019. See Docket.

         I. Factual and Procedural Background

          Thomas was born in September 1961. He was arrested in Baltimore City on November 9, 2009, after drugs and a firearm were found in a motor vehicle that he was driving. He has been in continuous custody since that time.

         As a result of that occurrence, a grand jury in the District Court of Maryland indicted Thomas and two others on March 3, 2010, charging multiple offenses. ECF 1. Of relevance here, Thomas was charged with conspiracy to distribute and possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846 (Count One); felon in possession of a semi-automatic handgun, in violation of 18 U.S.C. § 922(g)(1) (Count Five); possession of a semi-automatic handgun, in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Six); and possession with intent to distribute both heroin and cocaine (Count Seven). Id.

         On August 9, 2010, before Judge William D. Quarles, Jr., Petitioner entered a plea of guilty to Count Six, charging possession of a firearm in furtherance of drug trafficking, under 18 U.S.C. § 924(c). ECF 61. The offense carries a mandatory minimum sentence of five years' imprisonment and a maximum term of life imprisonment.

         The plea was tendered pursuant to a Plea Agreement. ECF 66; ECF 67. In the Plea Agreement, Thomas expressly waived his appellate rights, except that he reserved the right to appeal any sentence that exceeded 327 months' imprisonment. ECF 66, ¶ 13. And, the government agreed to recommend a sentence of imprisonment within the final advisory sentencing guidelines range. ECF 67, ¶ 8.

         The Plea Agreement includes a Statement of Facts. ECF 66 at 8. The factual summary indicates that law enforcement stopped a vehicle driven by defendant on November 7, 2009. Codefendant Darryl Chase was a passenger in the vehicle. Id.[2] A search of the vehicle revealed two bags of heroin in the center console, with a net weight of 44.73 grams; one bag of cocaine, with a net weight of 7.42 grams; and a 9mm handgun located “[d]irectly next to” the drugs. Id.

         Sentencing was initially scheduled for December 7, 2010. ECF 68. However, Thomas's defense attorney at the time, Gerald Ruter, subsequently advised Judge Quarles that defendant had filed for coram nobis relief in the Circuit Court for Baltimore City. ECF 72. The coram nobis relief was sought in connection with two prior felony drug convictions in that court: No. 801011024 (“Case I”) and No. 203007032 (“Case II”). ECF 148-3. As to Case II, the coram nobis petition was filed on June 30, 2010. Id.; see also ECF 117-1. This was prior to Thomas's plea of guilty in the federal case. And, as to Case I, the coram nobis petition was filed on August 13, 2010, just days after Thomas pleaded guilty in the underlying case. ECF 148-3; ECF 117-2. Another coram nobus petition was filed for Case II in October 2010. See ECF 117-3. Because of the pendency of the coram nobis petitions, defense counsel requested and obtained several postponements of Thomas's federal sentencing. See ECF 72; ECF 85; ECF 91; ECF 93; ECF 99; ECF 113; see also ECF 148-1; ECF 162 at 14.

         In a Memorandum Opinion and Order of November 13, 2012, the Circuit Court for Baltimore City (Young, J.) denied Thomas's requests for coram nobis relief. ECF 115-2. In the meantime, Judge Quarles set sentencing for February 13, 2013. See second docket entry for October 31, 2012; see also ECF 115.

         The Presentence Report (“PSR, ” ECF 161) was prepared in anticipation of sentencing on December 7, 2010.[3] According to the PSR, Thomas qualified as a career offender. Id. ¶¶ 14, 29. In reaching this conclusion, the probation agent relied on the defendant's two prior State felony drug convictions, which were at issue in the coram nobis proceeding.

         In particular, the prior State felony drug convictions are referenced in the PSR at paragraphs 22 and 23 for Case I, and paragraphs 24 and 25 for Case II. Case I involved attempted distribution of heroin on July 17, 2000. ECF 161, ¶¶ 22, 23. Case II involved possession with intent to distribute cocaine in 2004. Id. ¶¶ 24, 25.[4] For Case I, defendant received a four-year sentence, all of which was suspended, except for time served of about three weeks. As to Case II, he received a sentence of three years' incarceration. But, the conviction in Case II violated defendant's probation as to Case I. For the violation of probation in regard to Case I, Thomas received a three-year sentence, concurrent with the three-year sentence imposed in Case II.

         A review of the PSR reflects that the concurrent three-year sentences were the longest sentences defendant had ever served prior to the sentence imposed in this case. And, defendant served only a portion of those sentences, because he was paroled in February 2005. See ECF 161; ECF 115 at 2.

         Further, the PSR reflects that Thomas had a total of nine criminal history points. ECF 161, ¶ 28. This would normally equate to a criminal history category of IV. Id. But, as a career offender, Thomas's criminal history category jumped to VI. Id. ¶ 29.

         On January 25, 2013, Mr. Ruter filed a detailed sentencing memorandum on behalf of Thomas. ECF 115. He also filed numerous exhibits. ECF 115-1 to ECF 115-8; ECF 117; ECF 117-1 to ECF 117-3; ECF 118; ECF 118-1 to ECF 118-2. Among other things, he objected to the career offender designation, and argued that defendant's prior State felony drug convictions were unconstitutional. ECF 115 at 2-7. In addition, he provided Judge Quarles with a copy of the coram nobis petitions filed in the State court. ECF 117-1 (Case II, No. 203007032); ECF 117-2 (Case I, No. 801011024); ECF 117-3 (Case II, No. 203007032).

         The government also submitted a sentencing memorandum. ECF 119; ECF 148-4. There, the government disputed the defendant's contention that he did not qualify as a career offender because of a constitutionally defective conviction in State court.

         Judge Quarles proceeded to sentencing on February 13, 2013. ECF 120. At sentencing, several family members spoke on behalf of the defendant. See ECF 162 at 4-11. The defendant, who was then 51 years of age, also addressed the Court. Id. at 26-31.

         The government recommended a career offender guideline sentence. Id. at 13. It described Thomas as “the most culpable of the three defendants, ” with a “significant criminal history.” Id. at 11. The government also pointed out that the firearm was recovered from the defendant's vehicle, “next to the drugs.” Id. at 12. And, it described Thomas as “a recidivist drug trafficker.” Id.

         Defense counsel noted that the defendant had “a very small quantity of drugs” in his possession at the time of the vehicle stop. Id. at 16. And, with regard to Thomas's two prior State drug convictions, defense counsel indicated that they “speak of a person who is at the lowest level of being a drug dealer on the streets, ” consistent with his need to “feed the beast, ” i.e., his own heroin addiction, dating to when he was 17 years of age. Id. at 16-17.

         Mr. Ruter vigorously urged Judge Quarles to impose a variant sentence. See, e.g., ECF 162 at 26 (120 months); ECF 115 at 7 (60 months). According to defense counsel, a guidelines sentence would be “grossly out of proportion . . . ” to the underlying offense. ECF 162 at 19.

         Of relevance here, Judge Quarles found that defendant qualified as a career offender based on “his two previous felony narcotics convictions . . . .”, i.e., Case I and Case II. Id. at 31. After deductions, the Court determined that the defendant had an adjusted advisory sentencing guidelines range of 235 to 293 months of imprisonment. ECF 115 at 7; ECF 162 at 11. If the defendant were not a career offender, however, his guidelines would have been determined by U.S.S.G. § 2K2.4, i.e., the mandatory minimum of 60 months' imprisonment. ECF 115 at 7.

         Among other things, Judge Quarles stated that a variant sentence “would make a mockery . . . of the career criminal statute.” ECF 162 at 19. Moreover, the court observed that the defendant had received “breaks in the past that he didn't take seriously, ” adding: “[S]o I'm not so sure that . . . he should get breaks now.” Id. at 21.

         Thereafter, Judge Quarles sentenced Thomas to a period of incarceration of 235 months, corresponding to the bottom of the final advisory sentencing guidelines range. ECF 121 (Judgment of 2/19/13); ECF 122 (Statement of Reasons of 2/19/13).[5] In the Statement of Reasons (ECF 122 at 4), Judge Quarles stated: “Because of [Petitioner's] two previous felony narcotics convictions, he is a career offender and criminal history category VI.” Id. Judge Quarles also observed that the defendant began use of heroin at age fourteen. Id. And, he pointed out that Thomas is a high school graduate with a commercial driver's license. ECF 162 at 24.

         As noted, under the Plea Agreement, Thomas waived his right to appeal, subject to a caveat that is not applicable here. No. direct appeal was taken. However, on February 12, 2014, Thomas, then self-represented, moved to reduce his sentence. ECF 123. Judge Quarles denied that request. ECF 124. Then, on September 25, 2014, Thomas, still self-represented, filed another motion to reduce his sentence, under 18 U.S.C. § 3582(c), U.S.S.G. § 2D1.1, and Amendment 782. ECF 126. He complained, among other things, about the career offender designation. Id. at 2. The government opposed the motion. ECF 130. The Court denied the motion on March 28, 2016. ECF 131; ECF 132.

         In the meantime, following the ruling in the coram nobis proceeding in the Circuit Court for Baltimore City, an appeal was noted to the Maryland Court of Special Appeals. Unfortunately, the case was delayed because Thomas's lawyer suffered a stroke, was unable to practice law, and ultimately was disbarred by consent. ECF 142, ¶ 8(a). Mr. Thomas subsequently obtained new coram nobis counsel, who also represents him in this matter. ECF 149 at 2, ¶ 3.

         On February 23, 2016, in an unreported opinion, the Maryland Court of Special Appeals vacated the denial of coram nobis relief and remanded the matter to the Circuit Court for Baltimore City. See Thomas v. State, 2016 WL 706779 (Md. Ct. Spec. App. Feb. 23, 2016). The intermediate appellate court observed that, under Petitioner's federal plea agreement, the judge was required to take the federal sentencing guidelines into account, and Thomas faced a higher sentencing range because of his prior State convictions. Id. at *3. It added, id.: “Our conclusion is bolstered by the evidence . . . showing that [Thomas] received” a sentence of 235 months from the federal court. The court concluded that Thomas established “significant collateral consequences due to his prior [State] convictions.” Id.

         On remand to the Circuit Court for Baltimore City, that court scheduled a hearing for January 4, 2017. On that date, Judge Melissa Copeland signed a “Consent Order, ” granting coram nobis relief to Thomas as to Case I, No. 801011024, thereby vacating that conviction. ECF 144-1. That conviction corresponds to the offense referenced in paragraphs 22 and 23 of the PSR. See ECF 161. ...


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