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United States v. Thomas

United States District Court, D. Maryland, Southern Division

July 19, 2019

UNITED STATES OF AMERICA
v.
DAMIEN HENRY THOMAS, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         Damien Henry Thomas was charged in a six-count indictment for conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846 (Count 1); distribution of controlled substances, in violation of 21 U.S.C. § 841 (Counts 2, 3, 4, and 5); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 6). Superseding Indictment, ECF No. 22. On April 8, 2016, pursuant to a Fed. R. Crim. P.11(c)(1)(C) plea agreement (“Plea Agreement”) executed on March 17, 2016, Thomas entered a “guilty” plea as to Counts 1 and 6 and a “not guilty” plea as to Counts 2, 3, 4, and 5. Rearraignment, ECF No. 56. In the Plea Agreement, Thomas and the Government agreed to a sentence of 180 months' incarceration, consisting of a sentence of 180 months on Count 1 and a sentence of 120 months on Count 6, to be served concurrently. Plea Agr., ECF No. 57. As also agreed in the Plea Agreement, the Government moved to dismiss Counts 2, 3, 4, and 5 of the Superseding Indictment; the Court granted the Government's motion. Jmt., ECF No. 66.

         The Court accepted the terms of the Plea Agreement under Rule 11(c)(1)(C) and sentenced Thomas to 180 months' incarceration. Id. The Court constructed the sentence differently from the plea agreement (120 months for Count 1 and 180 months for Count 6, to be served concurrently), but nonetheless ordered the agreed-upon 180-month total sentence. Id. The Court also imposed a supervised release terms of five years as to the conspiracy count and five years as to the firearm possession count, to run concurrently; entered a $200 special assessment; and issued a Forfeiture Order for the firearm at issue in Count 6, five rounds of ammunition, and $2, 916 in connection with the charges. Id. Thomas appealed, ECF No. 68, and the Fourth Circuit affirmed his conviction and sentence on June 15, 2017. See United States v. Thomas, 691 Fed.Appx. 760 (4th Cir. 2017).

         Now pending is Thomas's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, ECF No. 84, [2] in which he contends that his trial counsel failed to provide effective assistance. However, Thomas has not shown that his trial attorney's performance was constitutionally deficient or demonstrated a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Accordingly, I will deny his § 2255 motion.

         Standard of Review

         28 U.S.C. § 2255(a) permits a prisoner to file a motion to vacate, set aside, or correct a sentence on the ground that it “was in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law . . . .” The prisoner must prove his case by a preponderance of the evidence. Brown v. United States, Civil No. DKC-10- 2569 & Crim. No. DKC-08-529, 2013 WL 4562276, at *5 (D. Md. Aug. 27, 2013). If the court finds for the prisoner, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Although “a pro se movant is entitled to have his arguments reviewed with appropriate deference, ” the Court may summarily deny the motion without a hearing “if the § 2255 motion, along with the files and records of the case, conclusively shows that [the prisoner] is not entitled to relief.” Brown, 2013 WL 4563376, at *5 (citing Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978); 28 U.S.C. § 2255(b).

         To prevail on a claim of ineffective assistance of counsel as the alleged Constitutional violation,

[t]he petitioner must show that counsel's performance was constitutionally deficient to the extent that it fell below an objective standard of reasonableness, and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687-91 (1984). In making this determination, there is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. Id. at 689; see also Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992). Furthermore, the petitioner “bears the burden of proving Strickland prejudice.” Fields, 956 F.2d at 1297. “If the petitioner fails to meet this burden, a reviewing court need not consider the performance prong.” Fields, 956 F.2d at 1297 (citing Strickland, 466 U.S. at 697). In considering the prejudice prong of the analysis, the Court may not grant relief solely because the petitioner can show that, but for counsel's performance, the outcome would have been different. Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998). Rather, the Court “can only grant relief under ... Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.'” Id. (quoting Lockhard v. Fretwell, 506 U.S. 364, 369 (1993)).

United States v. Lomax, Civil No. WMN-13-2375 & Crim. No. WMN-10-145, 2014 WL 1340065, at *2 (D. Md. Apr. 2, 2014).

         To show prejudice, the defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). A probability is reasonable if it is “sufficient to undermine confidence in the outcome.” Id. Additionally, the defendant must show that “the ‘result was fundamentally unfair or unreliable.'” Lomax, 2014 WL 1340065, at *2 (quoting Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhard v. Fretwell, 506 U.S. 364, 369 (1993))); see also Lockhard, 506 U.S. at 369 (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). If the defendant fails to show prejudice, the Court need not consider the performance prong. Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297 (4th Cir. 1992) (citing Strickland, 466 U.S. at 697).

         Discussion

         I. Sentence Above the Statutory Maximum

         Thomas argues that the assistance he received from his counsel was constitutionally deficient because his attorney did not object to the sentence ordered by the Court even though it exceeded the statutory maximum as to Count 6 for violation of 18 U.S.C. § 922(g). It is true that § 922(g) carries a maximum penalty of 120 months, and Thomas received a sentence of 180 months. But, the Court applied the armed career criminal[3] enhancement to Count 6, which enhances the penalty of § 922(g) from a maximum sentence of 120 months (ten years) to a minimum sentence of 180 months (fifteen years):

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall ...

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