United States District Court, N.D. Indiana, South Bend Division
ROBERT J. THOMAS, Petitioner,
UNITED STATES OF AMERICA, Respondent. No. 3:09-CR-134 RM.
OPINION and ORDER
ROBERT L. MILLER, Jr., District Judge.
When Robert J. Thomas walked into court on March 10, 2010, he had an attorney he had hired, a plea agreement, and a trial date six days away. He walked out of the courtroom with his attorney and his trial date. As the change of plea dialogue neared its end, the court asked Mr. Thomas, "Do you still want to plead guilty, sir?" Mr. Thomas responded: "I really don't want to be plead guilty, to be honest with you. I don't feel like all - I don't feel like I can be proven beyond a reasonable doubt by all those essentials or whatever you have."
When Mr. Thomas walked into court for trial six days later, it turned out that he had more lawyers, and a firmer trial date, than he thought he had. Mr. Thomas presented a letter to attorney Timothy P. McLaughlin, who had represented Mr. Thomas since the previous October 2, discharging Mr. McLaughlin as his attorney. Mr. Thomas's family brought attorney Richard M. Adams, a Birmingham, Alabama attorney whom the family had hired to represent Mr. Thomas. But Mr. Adams would need time to prepare for trial, so Mr. McLaughlin moved for a 60-day continuance when he moved to withdraw his appearance as counsel for Mr. Thomas. The court analyzed the seven-factor test laid out for eve (or morn) of trial continuance motions in United States v. Miller , 327 F.3d 598, 601 (7th Cir. 2003), and denied the motion for continuance.
After a recess to allow Mr. Thomas to discuss with his myriad counsel how to proceed, Mr. McLaughlin said he would remain as Mr. Adams's cocounsel or second chair (implicitly withdrawing the motion to withdraw he made less than an hour before), but asked for a recess until the next morning to allow the attorneys to work out how they would proceed. The court granted that request.
Trial resumed the next day. After three days of evidence, the jury disagreed with Mr. Thomas's earlier evaluation of the government's ability to prove its case beyond a reasonable doubt. The jury found Mr. Thomas guilty on all five counts: two counts of possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), one count of possession of a firearm while a user of a controlled substance, 18 U.S.C. § 922(g)(3), one count of possession of a firearm after conviction for a felony, 18 U.S.C. § 922(g)(1), and one count of possessing a firearm in furtherance of a drug trafficking crime. 18 U.S.C. § 924(c).
The court eventually sentenced Mr. Thomas to an aggregate sentence of 240 months' imprisonment, consisting of 180 months on Count 1 (with concurrent 51-month sentences on each of Counts 2-4) to be followed by 60 months on Count 5. An eight-year supervised release term was to follow Mr. Thomas's release from custody.
Mr. Thomas appealed, and attorney Lu Han of Chicago agreed to represent him on the appeal. The only appellate issue Mr. Thomas presented was the claim that his conviction on Count 3 - possession of a firearm while a user of illegal controlled substances - ran afoul of the Second Amendment as read in District of Columbia v. Heller , 554 U.S. 570, 628-629 (2008). The court of appeals rejected that argument, but the government pointed out that Mr. Thomas had been impermissibly convicted of violating two sections of the same law with the same conduct. Because user-in-possession and felon-inpossession both are criminalized by 18 U.S.C. § 922(g), the same conduct can't constitute two separate crimes. The court of appeals remanded the case "with instructions to VACATE the sentence on one of the firearm possession counts and merge the two convictions, " and affirmed the conviction in all other respects. United States v. Thomas, No. 10-2996, 426 F.Appx. 459, 461 (7th Cir. 2011) (emphasis in original).
Upon receiving the mandate from the court of appeals, this court vacated the conviction and sentence on Count 4, the felon-in-possession count. No hearing was held because the court of appeals' instruction was very clear and the amendment to the judgment didn't affect the sentence because the 51-month sentence on Count 4 had been concurrent with the 180-month sentence on Count 1. Mr. Thomas ventured an appeal from that ruling, but the court of appeals dismissed the appeal for untimeliness.
This brings us to the matter now before the court: Mr. Thomas's petition under 28 U.S.C. § 2255, in which he raises nine claims (plus a later tenth) of ineffective assistance of counsel or prosecutorial misconduct. In each of the claims, Mr. Thomas either misunderstands the law or remembers the events in this court incorrectly.
The court addresses the claims in the order in which the errors are alleged to have been committed. To prove ineffective assistance of counsel, a petitioner must persuade the court that (1) his lawyer made errors, and the errors were so serious that the lawyer can't be said to have been providing the petitioner with the counsel the Constitution guarantees to everyone, and (2) as a result, the petitioner's defense was prejudiced to the point he was deprived of a trial with a reliable result. Strickland v. Washington , 466 U.S. 668, 687 (1984). This is no small task. See Yu Tian Li v. United States , 648 F.3d 524, 527-528 (7th Cir. 2011) ("To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, our review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.").
Two of Mr. Thomas's claims posit that his change of plea fizzled out because of his attorney - more particularly, his first attorney, Mr. McLaughlin. Mr. Thomas says Mr. McLaughlin fumbled the ball at two points: first, that when discussing the plea offer with Mr. Thomas, Mr. McLaughlin assured him that the federal sentence would run concurrently with his state sentence, and that was the only reason Mr. Thomas agreed to plead guilty; and second, after Mr. Thomas signed the plea agreement, Mr. McLaughlin changed the plea agreement so the state and federal sentences would run consecutively. This claim falls short at the second part of the two-part test for ineffective assistance of counsel: Mr. Thomas can't show any prejudice from Mr. McLaughlin's alleged actions with respect to the plea agreement.
The plea agreement that was filed with the court contained Mr. Thomas's agreement that his federal sentence would be consecutive to his state sentence, and Mr. Thomas told the court, while under oath, that he had read the plea agreement before signing it. The court asked the attorneys to outline the terms of the plea agreement as they understood it, and the prosecutor said Mr. Thomas had agreed to admit that he violated the conditions of his state home detention sentence and serve the resulting sentence consecutively to the federal sentence; Mr. Thomas told the court that's how he understood things, too. The court then went through various terms of the plea agreement with Mr. Thomas, including the provision that both sides agreed the federal sentence would be consecutive to the state sentence; when the court asked if that was correct, Mr. Thomas responded, "Yeah, I understand. Yeah. Now, I do, yes."
At the beginning of the change of plea hearing, the court told Mr. Thomas that he was free to ask for time to confer with his attorney before answering any question. Mr. Thomas made one such request during the hearing when the court erroneously described the handgun as a nine millimeter; after Mr. Thomas and Mr. McLaughlin conferred, Mr. McLaughlin said it was a.40 caliber handgun, not a nine millimeter. Mr. Thomas ...