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Thorne v. United States

United States District Court, E.D. Virginia, Alexandria Division

April 12, 2017

ANTOWAN THORNE, Movant,
v.
UNITED STATES OF AMERICA. Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge.

         Before 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 Reply").

         Having reviewed the entire record, the Court finds no merit to Thome's motion, which will be dismissed without the need for an evidentiary hearing.

         I. BACKGROUND

         Thome 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.

         On May 16, 2014, Thome appeared with Gregory Stambaugh, his appointed defense counsel, for arraignment on the indictment. Minute Entry, May 16, 2014, [Dkt. No. 18].[1]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].

         On July 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].

         During 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].

         Acting 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].

         After 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.

         II. DISCUSSION

         Thome 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.

         A. Standard of Review

         A 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).

         A § 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).

         Under § 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)).

         B. Ineffective Assistance of Counsel

         To 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 689-690.[2]

         As to 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.

         1. Claim 1 (Motion to Suppress, Communication, and Preparation for Trial)[3]

         In this 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 trial.

         With 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 ...


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