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United States v. Thomas

United States District Court, W.D. Louisiana, Lafayette Division

April 23, 2019

UNITED STATES OF AMERICA
v.
GORDON RAY THOMAS (01)

          WHITEHURST, MAGISTRATE JUDGE.

          MEMORANDUM RULING

          MICHAEL J. JUNEAU, UNITED STATES DISTRICT JUDGE.

         Before the court is the Motion to Vacate filed by petitioner, Gordon Ray Thomas (Thomas), pursuant to 28 U.S.C. § 2255. [Rec. Doc. 60');">60]. Thomas contends that his counsel was ineffective for failing to object to his sentence and that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2251 (2015). For the reasons enunciated below, Thomas's § 2255 motion is DENIED and DISMISSED WITH PREJUDICE for failing to state a claim for which relief may be granted.

         I. Factual Background

         The record reveals that on August 31, 1995, Thomas was convicted at trial on one count of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d) (Count 1); one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 2); and one count of transporting stolen vehicles, in violation of 18 U.S.C. § 2312 (Count 3). He was sentenced to a total of 327 months imprisonment, followed by five years supervised release. His sentence on the third count, an offense typically carrying a 10-year statutory maximum, was enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), based on four prior Louisiana convictions for “armed robbery.” [PSR at ¶¶ 36, 41 (Sealed)]. The Court expressly ordered that he serve his federal 327-month sentence consecutively to an undischarged state sentence, as required by a then-binding guideline provision cited in the PSR. Judgment was entered on September 5, 1995. [Rec. Doc. 50]. Thomas did not appeal.

         The Motion to Vacate presently before this Court was filed June 13, 2016, [Rec. Doc. 60');">60], raising two issues: (1) Defense counsel rendered constitutionally ineffective assistance of counsel in failing to object to Thomas's sentencing under the ACCA on the ground that some of the predicate convictions relied upon by the Court were actually part of the instant offense [Rec. Doc. 60');">60, pp. 8-12]; and (2) Thomas is entitled to relief under Johnson because, without the residual clause invalidated by Johnson, his armed robbery convictions do not constitute valid ACCA predicates. [Rec. Doc. 60');">60, pp. 13-16].

         The Court issued the standard administrative and procedural orders applicable to Johnson-based claims, which, among other things, appointed the Office of the Federal Public Defender to represent Thomas in connection with his motion. [Rec. Docs. 67 & 68]. The Court granted the Public Defender's Motion to Withdraw as Counsel on March 29, 2018. [Rec. Docs. 70 & 71].

         II. Law and Analysis

         a. The Law of § 2255 Actions, Generally

         There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” See 28 U.S.C. § 2255; United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert. denied, 504 U.S. 962 (1992). The scope of relief under § 2255 is consistent with that of the writ of habeas corpus. See Cates, 952 F.2d at 151; see also United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

         Thomas did not appeal his conviction and sentence. Relief under § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Non-constitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); see also United States v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995).

         A collateral challenge may not do service for an appeal. See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). After conviction and exhaustion or waiver of any right to appeal, the federal courts are entitled to presume that the defendant stands fairly and finally convicted. See Id. at 231-32. Even if a defendant raises a constitutional error, he may not raise an issue for the first time on collateral review without showing both cause for his procedural default and actual prejudice resulting from the error. See Id. at 232; see also United States v. Mimms, 43 F.3d 217, 219 (5th Cir. 1995). Absent exceptional circumstances, establishment of ineffective assistance of counsel satisfies cause and prejudice. See United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995).

         b. Thomas's § 2255 Motion Is Untimely.

         The § 2255 motion before this Court is untimely and, therefore, should be dismissed. Title 28 U.S.C. § 2255 provides a one-year statute of limitations for the filing of motions pursuant to § 2255. This limitation period generally runs from the date that the conviction becomes final. 28 U.S.C. § 2255(f)(1). Petitioner's conviction became final on September 19, 1995, ten days (excluding holidays and weekends) after petitioner's judgment of conviction was entered on this Court's docket. See United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). Petitioner therefore had one year, or until September 19, 1996, to file his § 2255 motion in this Court. The instant motion was not filed until June 13, 2016. Thus, Petitioner's claims cannot be considered under the period established by 28 U.S.C. § 2255(f)(1). Rather, petitioner must rely on one of three statutory exceptions to the general rule which can, in ...


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