United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
the Court is Antowan Thome's ("Thome" or
"movant") prose Motion to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
pursuant to 28 U.S.C. § 2255 ("§ 2255
Motion") [Dkt. No. 108] and the accompanying memorandum
("§ 2255 Memo.") [Dkt. No. 108-1], in which he
argues that he received constitutionally ineffective
assistance from his appointed attorney, Gregory Stambaugh
("Stambaugh" or "counsel"), and raises
several additional claims regarding errors allegedly
committed by the Court. The government has responded to the
motion and Stambaugh has filed a declaration pursuant to 28
U.S.C. § 1746 that addresses his alleged failure to
provide effective assistance. See Resp. in Opp'n [Dkt.
No. 114] ("Gov. Opp'n"); Decl. of Gregory
Stambaugh [Dkt. No. 113] ("Stambaugh Decl."). Thome
has filed a response to both the government's opposition
and Stambaugh's declaration. See Movant's Reply to
the Gov.'s Opp'n [Dkt. No. 119] ("Thome
reviewed the entire record, the Court finds no merit to
Thome's motion, which will be dismissed without the need
for an evidentiary hearing.
was indicted for Conspiracy to Distribute 100 Grams or More
of Heroin Resulting in Death, in violation of 21 U.S.C.
§ 846, and Possession of a Firearm in Relation to a Drug
Trafficking Crime, in violation of 18 U.S.C. §
924(c)(1)(A). Ind., [Dkt. No. 15]. According to the
indictment, Thome conspired to sell heroin to young adults in
Fairfax County, Virginia from 2012 to 2013. Id.
¶¶ 1, 4. On August 21, 2013, Thome sold heroin to a
group of four individuals: Zachary Power, Klye Alifom, Neemah
Zadeh, and Emylee Lonczak. Id. ¶ 9. Lonczak, a
16-year-old from McLean, Virginia and first-time heroin user,
became unconscious shortly after injecting the heroin and
died overnight. Id. An autopsy confirmed that a drug
overdose contributed to her death. Id. The
government alleged that Thome's conspiracy distributed at
least 720 grams of heroin, a Schedule I controlled substance.
Presentence Investigation Rep., [Dkt. No. 62] at 5.
16, 2014, Thome appeared with Gregory Stambaugh, his
appointed defense counsel, for arraignment on the indictment.
Minute Entry, May 16, 2014, [Dkt. No. 18].At the
arraignment, Thorne made an oral motion for new counsel,
explaining that Stambaugh was encouraging him to take a plea
but Thome preferred to go to trial. Tran., May 16, 2014,
[Dkt. No. 95] at 2-3. The Court explained that whether to
plead guilty was Thome's decision, but, finding no basis
for the request for new counsel, denied the motion and set
the case for a jury trial to begin on July 21, 2014.
Id. Thome's counsel subsequently filed a motion
to transfer venue pursuant to Fed. R.Crim. P. 21(b) and a
motion for a bill of particulars. [Dkt. Nos. 24, 25]. Thome,
acting pro se. filed motions to suppress items
seized during a warrant-authorized search of his home and to
dismiss his indictment on Due Process grounds. [Dkt. Nos. 31,
32]. The Court denied the motions to transfer venue, for a
bill of particulars, and to dismiss the indictment, but
granted Thome's motion to suppress on the basis of
staleness. Order, June 26, 2014, [Dkt. No. 36].
11, 2014, Thome waived his right to a jury trial. [Dkt. No.
39]. Three days later, at Thome's request, Stambaugh
filed a motion to withdraw and continue the trial date. [Dkt.
No. 42]. The Court heard the motion the following day, by
which time Thome had changed his mind and stated that he did
not want his counsel to withdraw. Minute Entry, July 15,
2014, [Dkt. No. 46]; Tran., July 15, 2014, [Dkt. No. 98] at
10. Based on that representation, the motion to withdraw and
continue the trial date was denied. Order, July 15, 2014,
[Dkt. No. 47]. A week before the scheduled trial, Thome's
counsel requested a continuance due to a family medical
emergency and the bench trial was continued to August 20,
2014. [Dkt. No. 49].
the one-day bench trial, the government's case in chief
included testimony from James Berthay, Thome's
co-conspirator who had pleaded guilty and agreed to cooperate
with the government, as well as Power, Alifom, and Zadeh,
three witnesses who were with Lonczak on the night of August
21, 2013, and Clancy Kelly (the girlfriend of Power) who
testified that she had purchased drugs from Thome in the
summer of 2013. At the close of the government's
evidence, the Court granted Stambaugh's motion for
judgment of acquittal with respect to the death-resulting
allegation. Tran., Aug. 20, 2014, [Dkt. No. 99] at 207-10
("Trial Trans."). Following the conclusion of the
evidence, the Court found Thome guilty of Conspiracy to
Distribute 100 Grams or More of Heroin and not guilty of
Possession of a Firearm in Relation to a Drug Trafficking
Crime. Order, Aug. 20, 2014, [Dkt. No. 55].
pro se. Thome filed motions to remove his attorney,
[Dkt. No. 56], and dismiss the case, [Dkt. No. 57]. Both
motions were denied as meritless. Order, Oct. 3, 2014, [Dkt.
No. 58]; Order, Nov. 14, 2014 [Dkt. No. 74]. At the
sentencing hearing, the Court calculated Thome's offense
level as 34 and his criminal history category as VI,
resulting in a guidelines range of 262-327 months of
imprisonment. [Dkt. No. 62] at 22. In advance of sentencing,
Stambaugh filed objections to the guidelines, including an
objection to the drug quantity attributed to movant.
Id. at 25. The Court sentenced Thome to 300 months
of imprisonment. Judgment, [Dkt. No. 70].
Stambaugh timely filed a notice of appeal, [Dkt. No. 77], he
moved to withdraw as counsel, [Dkt. No. 78], and the request
was granted, Order, Nov. 20, 2014, [Dkt. No. 79]. The Fourth
Circuit appointed new appellate counsel. Order of USCA, Nov.
25, 2014, [Dkt. No. 82]. On appeal, Thome argued that the
evidence was insufficient to sustain his conviction and that
the Court erred in finding that he was a career offender and
in applying firearm and obstruction of justice enhancements.
United States v. Thome, No. 14-4878, [Dkt. No. 25]
at 1 (4th Cir. Mar. 30, 2015). The Fourth Circuit affirmed
the conviction and the sentence, Opinion of USCA, [Dkt. No.
102], and the Supreme Court denied certiorari. United
States v. Thome. No. 15-6402. Thome, acting pro
se. timely filed the pending § 2255 motion.
raises sixteen claims of ineffective assistance of counsel,
as well as a sentencing challenge under Johnson v. United
States. 135 S.Ct. 2251 (2015), and three allegations of
error by the Court. As explained below, none of these claims
entitle movant to the relief sought.
Standard of Review
motion to vacate under 28 U.S.C. § 2255 provides for a
collateral attack on a conviction or sentence when the
conviction or sentence was imposed in violation of the United
States Constitution or laws, when the court lacked
jurisdiction to impose the sentence, when the sentence was in
excess of the maximum authorized by law, or when the
conviction or sentence is otherwise subject to a collateral
attack. See 28 U.S.C. § 2255(a). Relief under §
2255 is reserved for situations in which failing to grant
relief would be "inconsistent with the rudimentary
demands of fair procedure or constitute a complete
miscarriage of justice." United States v. Vonn.
535 U.S. 55, 64 (2002) (quoting United States v.
Timmreck. 441 U.S. 780, 783 (1979)). To prevail on a
§ 2255 motion, the movant bears the burden of proving
his grounds for collateral relief by a preponderance of the
evidence. See Jacobs v. United States. 350 F.2d 571,
574 (4th Cir. 1965).
§ 2255 motion "may not do service for an appeal,
" and claims that have been waived are therefore
procedurally defaulted unless the movant can show cause and
actual prejudice. United States v. Fradv. 456 U.S.
152, 165-67 (1982). Although procedural default generally
bars claims not previously raised, a freestanding claim of
ineffective assistance of counsel may properly be asserted
for the first time in a § 2255 petition. See United
States v. DeFusco. 949 F.2d 114, 120-21 (4th Cir. 1991).
§ 2255(b), a movant is to be granted an evidentiary
hearing on his motion "[u]nless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief." Summary dismissal of §
2255 allegations is "warranted only if a [movant's]
allegations when viewed against the record of the plea
hearing are palpably incredible or patently frivolous or
false." United States v. White. 366 F.3d 291,
297 (4th Cir. 2004) (quoting Blackledge v. Allison.
431 U.S. 63, 76 (1977)).
Ineffective Assistance of Counsel
establish ineffective assistance of counsel, Thorne must show
both (1) that "counsel's performance was
deficient" and (2) that he was prejudiced by that
deficient performance. Strickland v. Washington, 466
U.S. 668, 687 (1984). Deficient performance occurs when
"counsel's representation fell below an objective
standard of reasonableness" as established by
"prevailing professional norms." Id. at
687-88. Because it "is all too tempting for a defendant
to second-guess counsel's assistance after conviction or
adverse sentence" and because a wide range of legitimate
defense strategies are possible in a given case, there is a
"strong presumption" that counsel's conduct was
within the wide range of reasonable professional assistance
and "scrutiny of counsel's performance must be
highly deferential." Id. at 689-90. In keeping
with this standard, a court is to assess counsel's
conduct not with the benefit of hindsight, but from the
perspective of counsel at the time of the relevant action or
decision. Strickland. 466 U.S. at
the second prong, a movant can show prejudice when there is
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. A showing
that "the errors had some conceivable effect on the
outcome of the proceeding" is not enough; a reasonable
probability requires that the errors are "sufficient to
undermine confidence in the outcome, " Id. at
693, 694, or that the results of the proceeding were
fundamentally unfair, Lockhart v. Fretwell. 506 U.S.
364, 369 (1993). Assessing prejudice "requires the court
deciding the ineffectiveness claim to 'consider the
totality of evidence before the judge or jury.'"
Elmore v. Ozmint 661 F.3d 783, 858 (4th Cir. 2011)
(quoting Strickland. 466 U.S. at 695). "Failure
to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness
claim." Strickland 466 U.S. at 700.
Claim 1 (Motion to Suppress, Communication, and
Preparation for Trial)
claim, Thome alleges failure to move to suppress witness
testimony, the breakdown of communication between client and
counsel, and counsel's failure to prepare adequately for
respect to the suppression issue, "the threshold
question [in tainted fruit analysis] is whether testimonial
evidence is the product of an illegal search."
United States v. Gray,491 F.3d 138, 154 (4th Cir.
2007). Thorne argues that "statements glean [sic] from
interviews with the government witnesses is [sic] the product
of the search warrant namely, James Berthay, Kyle Alifom,
Neemah Zedah and Zachary Power, and because counsel did not
move to suppress the statements, Thorne was denied legal
effective assistance." § 2255 Memo, at 18. Contrary
to Thome's argument, these statements were not the
product of the search; instead they were part of the basis
upon which the search warrant was issued. As the government
explains, "[t]he affidavit in support of the search
warrant for [Thome's] residence included information
provided by Kyle Aliform, Neemah Zadeh, Zachary Power, and
James Berthay." Gov. Opp'n at 7. As such, the
statements of these witnesses were not fruits of the search
and there were no grounds for counsel to move to suppress
them. Moore v. United ...