Thompson v. United States

88 F. App'x 63
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 30, 2004
DocketNo. 02-5564
StatusPublished
Cited by1 cases

This text of 88 F. App'x 63 (Thompson v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. United States, 88 F. App'x 63 (6th Cir. 2004).

Opinion

OPINION

TARNOW, District Judge.

Kevin Thompson appeals from the district court’s denial of his habeas petition, filed under 28 U.S.C. § 2255. Thompson argues that his trial attorneys erroneously calculated his potential sentence, and, on the basis of this erroneous calculation, he rejected the government’s plea offer. The dispositive issue on appeal is whether the district court’s finding that Thompson was aware of the potential for life imprisonment at the time he rejected the offer is clearly erroneous. We conclude it is not and AFFIRM the district court’s order.

I. BACKGROUND

On June 19, 1996, Thompson and two codefendants, Barbara Thompson and Richard LeMonde, were indicted in a multiple-count indictment by a federal grand jury in the Western District of Kentucky. Count I of the indictment charged Thompson with conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count III of the indictment charged him with attempt to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. A jury trial took place in December 1996.

Thompson was represented by two attorneys, James Howard and Charles English. According to Thompson and his attorneys, the government made Thompson an offer on the first day of trial: eight years and one month imprisonment in exchange for a guilty plea.1 The trial court postponed the trial for one day to allow Thompson to consider the offer.

Despite his attorneys’ advice to the contrary, Thompson rejected the government’s offer.2 Howard then drafted the [65]*65following letter, which was signed and dated by Thompson:

I have been advised by my attorneys. Jim Howard and Charles “Buzz” English, Jr., that if I am convicted on either of the two charges against me in the United States District Court, Case No. 1:96CR-17-M, the sentencing guidelines and mandatory minimum sentencing laws will require that I serve from 20 to approximately 25 years in prison, with no chance of probation or parole. (Emphasis supplied by undersigned). They have also advised me that the Government has substantial evidence against me, and that there is a great chance, probably greater than 50%, that I will be convicted if this case goes to trial.
I have been advised that the Government has made an offer of 8 years, 1 month if I were to plead guilty. Both state and federal officials have discussed the possibility of including any other charges I am charged with or being investigated for in with such a deal, without any additional time, in exchange for the forfeiture of one piece of property-
After considering all of these factors, I have advised my attorneys that I am not guilty of the charges, and do not wish to plead guilty, but rather wish to go forward to trial.

Thompson admits signing the letter but denies reading the letter prior to signing it or knowing the letter’s content.3

On December 18, 1996, the first day of Thompson’s trial, the government filed a notice of a prior felony drug conviction, pursuant to 21 U.S.C. § 851. This notice subjected Thompson to a mandatory minimum sentence of twenty years and a maximum sentence of life in prison.4

Thompson maintained his innocence throughout the trial but was convicted of both counts on December 23, 1996. He subsequently admitted his involvement in the charged offenses but denied full responsibility.

During sentencing, the trial court found that Thompson’s criminal conduct involved eighty pounds of methamphetamine, which resulted in a base offense level of thirty-eight. However, because Thompson committed perjury in denying guilt at trial, the court imposed a two-level obstruction-of-justice adjustment. Thus, the total offense level was forty. The court sentenced Thompson at criminal history category III. for which the sentencing guidelines mandated a sentence of 360 months (or thirty years) to life. The court imposed a sentence of thirty years.

Thompson appealed his conviction, but not his sentence, to this Court. In an unpublished opinion filed September 2, 1999, we affirmed the conviction in its entirety. See United States v. Lemonde, 188 F.3d 509 (6th Cir.1999). On August 30, 2000, Thompson filed the instant section 2255 motion to vacate or set aside his sentence on the ground of ineffective assistance of counsel. Thompson also argued that the sentence imposed by the trial court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the drug quantity was nei[66]*66ther charged in the indictment nor submitted to the jury as a fact question.

On November 30, 2000, the district court referred the matter to a magistrate. In a report and recommendation (R & R) dated July 16, 2001, the magistrate determined that the rule announced in Apprendi does not apply retroactively on collateral review. Thus, review of Thompson’s Apprendi claim was barred because he failed to show cause and prejudice to excuse his procedural default. The magistrate also found that, at the time Thompson rejected the government’s plea offer, he was fully informed of the maximum sentence he could receive. Accordingly, the magistrate concluded that Thompson could not establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Thompson timely filed objections to the R & R. The district court denied Thompson’s objection with respect to the Apprendi claim but remanded the case to the magistrate for an evidentiary hearing on the ineffective assistance of counsel claim. The magistrate conducted the evidentiary hearing on October 17, 2001. In a second R & R filed March 18, 2002, the magistrate found that the performance of Thompson’s trial attorneys was deficient under Strickland. The magistrate concluded, however, that Thompson did not satisfy Strickland’s prejudice prong, i.e., he failed to show that there was a “reasonable probability” that, but for his attorneys’ error, he would have accepted the government’s offer. The magistrate recommended denying Thompson’s motion. In an order entered on April 18, 2002, the district court concluded:

Thompson has not established his trial counsel was constitutionally ineffective, or that but for his attorneys’ alleged mistake in calculation of the sentencing guidelines, he would have accepted the United States’ plea offer. Therefore, Thompson’s motion under [2]8 U.S.C. § 2255

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Bluebook (online)
88 F. App'x 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-united-states-ca6-2004.