United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Seth Linkous Thomas, a federal inmate proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government has filed a motion to dismiss, and the time allotted for Thomas to respond has elapsed, making this matter ripe for consideration. After reviewing the record, the court concludes that Thomas has not stated any meritorious claim for relief under § 2255 and that the government's motion to dismiss must be granted.
On March 18, 2010, a federal grand jury sitting in Roanoke, Virginia, charged Thomas in a four-count indictment with conspiracy to possess with intent to distribute a measurable quantity of fentanyl resulting in death or serious bodily injury of another, in violation of 21 U.S.C. § 846 ("Count One"); aiding and abetting in the distribution of fentanyl resulting in serious bodily injury of another, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count Two"); distributing fentanyl resulting in the death of another, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count Three"); and distributing morphine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count Four"). On December 9, 2010, Thomas pleaded guilty to Count Four of the indictment and the court accepted his plea. (ECF Nos. 137, 138.) He proceeded to trial on Counts One, Two, and Three. Thomas challenges his conviction only on Count Three.
Count Three stemmed from a fatal fentanyl overdose by Barry Duncan on November 29, 2007. The prosecution presented evidence at trial that Thomas provided Duncan with a fentanyl patch and helped Duncan apply it to Duncan's back. (Trial Tr. at 39, ECF No. 176.) Later, when the patch did not adhere well, Duncan ingested it. (Trial Tr. at 44, ECF No. 176.) He was found deceased the following morning. (Trial Tr. at 119-20, ECF No. 176.) Dr. Amy Tharp, the assistant chief medical examiner who performed Duncan's autopsy, testified that Duncan died from acute combined fentanyl and methadone poisoning. (Trial Tr. at 129, ECF No. 176.) Dr. Tharp explained that the amount of methadone in Duncan's body was small, and Duncan "had a clearly lethal level of fentanyl all by itself. Regardless of anything else that was in his blood, that was enough to have caused his death." (Id.) She went on to explain that the level of methadone in his body would not have been lethal, without the fentanyl. (Trial Tr. at 130, ECF No. 176.) However, because the two drugs have similar effects on the body, she could not discount methadone as "potentially making the situation worse." (Id.) In addition, Dr. James John Kuhlman, Jr. a forensic toxicologist, testified that the level of fentanyl found in Thomas's system was "clearly fatal." (Trial. Tr. at 19, ECF No. 175.)
The jury was instructed, with regard to Count Two, which involved a non-fatal fentanyl overdose by James Clarke, that it could only find Duncan guilty if the government established that the serious bodily injury "resulted from the use of fentanyl." (Trial Tr. at 15, ECF No. 177.) The court further defined "resulted from" as "the victim would not have suffered the serious bodily injury but for (had it not been for) the fentanyl. In other words, if the fentanyl was not used by the victim, the victim would not have suffered the serious bodily injury." (Id. at 16.) With regard to Count Three, the jury was instructed that the government must prove beyond a reasonable doubt that "the use of the fentanyl resulted in the death of another, " without additional explanation. (Trial Tr. at 16-17, ECF No. 177.)
The jury returned a guilty verdict on all three charges. (ECF No. 157.) On April 4, 2011, the court held a sentencing hearing. (ECF No. 197.) Thomas was sentenced to 300 months' imprisonment. (Judgment at 3, ECF No. 191.) Thomas appealed. (ECF No. 193.)
On July 25, 2012, the Fourth Circuit Court of Appeals reversed Thomas's conviction on Count One (conspiracy to possess with intent to distribute a measurable quantity of fentanyl resulting in death or serious bodily injury of another) and Count Two (aiding and abetting in the distribution of fentanyl resulting in serious bodily injury of another) for lack of evidence. United States v. Thomas. 489 F.App'x 688, 695 (4th Cir. 2012). The Fourth Circuit affirmed Thomas's conviction as to Count Three (distributing fentanyl resulting in the death of another). Id. at 693-94. The Fourth Circuit vacated Thomas's sentence and remanded for resentencing. Id. at 695. Thomas appealed the Fourth Circuit decision, but the Supreme Court denied his petition for a writ of certiorari. Thomas v. United States. 133 S.Ct. 588 (2012).
On September 12, 2012, the court resentenced Thomas to 240 months' imprisonment on Count Three and 120 months' imprisonment on Count Four to run concurrently. (Am. J. at 2, ECF No. 225.) As set forth in Thomas's original presentence report, Thomas's conviction on Count Three for drug distribution resulting in death required a mandatory minimum sentence of 240 months pursuant to 21 U.S.C. § 841(b)(1). (PSR at 16, ECF No. 195.) Thomas did not appeal his resentencing.
On January 28, 2015, Thomas filed the current § 2255 motion. Thomas argues that his motion was timely filed because the Supreme Court, in its recent decision in United States v. Burrage, ___U.S.___, 134 S.Ct. 881 (2014), recognized a new right that applies retroactively to him.
A viable petition under § 2255 must adhere to strict statute of limitations requirements. A person convicted of a federal offense must file a § 2255 motion within one year of the latest date on which:
(1) the judgment of conviction becomes final;
(2) the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from ...