Thomas v. United States

Background

Dwayne Thomas moved under 28 U.S.C. § 2255, a federal procedure allowing a person in custody to ask the sentencing court to vacate, set aside, or correct a sentence. A jury had convicted Thomas in Case One of conspiracy to commit Hobbs Act robbery, two Hobbs Act robberies, two firearm counts under 18 U.S.C. § 924(c), possessing a firearm as a convicted felon, and conspiracy to kidnap. The court later vacated one robbery conviction and the related firearm conviction. The Government withdrew its appeal and declined to retry Thomas on those two counts.

On October 31, 2014, the court sentenced Thomas principally to 228 months of incarceration. That sentence included an 84-month sentence on one § 924(c) firearm conviction, running consecutively to the sentences on the other counts. In a later criminal case, identified in the opinion as Case Two, Thomas pleaded guilty to conspiracy to commit Hobbs Act robbery. Judge Ronnie Abrams sentenced him to 240 months, including 180 months running consecutively to any undischarged sentence from Case One.

Thomas filed this petition before he was sentenced in Case Two. He raised two grounds for relief: first, that his § 924(c) conviction should be vacated because Hobbs Act robbery no longer qualified as a crime of violence after Johnson v. United States; and second, that he should be resentenced so that the consecutive § 924(c) sentence would be served before his sentences on the other substantive counts in Cases One and Two. The Government argued that the requested relief was improper under § 2255 and that the sentencing claim was procedurally defaulted because Thomas had not raised it on appeal.

Crime-of-Violence Claim

Section 924(c) prohibits using or carrying a firearm during and in relation to a crime of violence. The statute defines a crime of violence through an “elements clause,” covering a felony that has as an element the use, attempted use, or threatened use of physical force, and a “residual clause,” covering an offense that involves a substantial risk that physical force may be used.

The Supreme Court held in United States v. Davis that the residual clause is unconstitutionally vague, but did not invalidate the elements clause. The Second Circuit had held in United States v. Barrett that substantive Hobbs Act robbery qualifies as a crime of violence under the elements clause. Thomas acknowledged Barrett and conceded that this ground should be denied. The court therefore held that his Hobbs Act robbery conviction qualified under the elements clause and rejected his first claim.

Sentencing-Order Claim

The court first held that Thomas’s challenge to the way and order in which the sentences were imposed was procedurally foreclosed. Section 2255 generally does not provide relief for every claimed sentencing error; absent a constitutional or jurisdictional issue, a claim generally cannot be raised in a § 2255 proceeding if it was not raised on direct appeal. The court found that Thomas had not shown a fundamental miscarriage of justice or presented a constitutional or jurisdictional argument.

The court also held that Thomas had procedurally defaulted the claim by failing to timely appeal the sentencing issue. To overcome that default, Thomas had to show a legally sufficient reason for not appealing and actual prejudice, or show that he was actually innocent. The court found none of those circumstances. It rejected Thomas’s argument that he could not have raised the issue in Case One because Case Two had not yet been charged, explaining that he could have raised it in a direct appeal from Case Two.

Alternative Merits Analysis

The court stated that Thomas’s claim would fail even apart from the procedural obstacles. Judge Abrams had considered whether the Case Two sentence could run concurrently with the 84-month § 924(c) sentence from Case One. She decided that she did not need to resolve that legal question because she found the sentence reasonable and appropriate, and ordered that the Case One § 924(c) sentence would not be credited against the Case Two sentence.

The court also relied on the text of § 924(c), which requires the firearm sentence to be imposed in addition to the punishment for the underlying crime and to run consecutively to any other term of imprisonment. The court described the § 924(c) sentence as the “caboose” to the other sentences. It therefore rejected Thomas’s requested resentencing.

Disposition

The court denied Thomas’s post-conviction petition. Because Thomas had not made a substantial showing that a constitutional right was denied, the court stated that it would not issue a certificate of appealability. It directed the Clerk of Court to terminate all pending motions and mark case number 17-cv-781 as closed.