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United States v. Throckmorton

October 22, 2009

UNITED STATES OF AMERICA
v.
THOMAS EDWARD THROCKMORTON



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER

Presently before the Court for disposition is the MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY filed pro se by Petitioner / Defendant Thomas Edward Throckmorton ("Throckmorton") (Document No. 106), the RESPONSE in opposition filed by the government (Document No. 114), and the REPLY filed by Throckmorton, pro se (Document No. 121). For the reasons discussed below, the Court will deny the § 2255 motion without holding an evidentiary hearing.

The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Section 2255 provides, in relevant part:

A prisoner in custody under sentence of a [federal] court ... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Although § 2255 includes a provision for a prompt evidentiary hearing, a federal court may deny a § 2255 motion without holding an evidentiary hearing if the "motion and the files and records of the case conclusively show" that the petitioner is not entitled to relief. 28 U.S.C. § 2255 ; see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005); Rule 8(a), 28 U.S.C. foll. § 2255.

Procedural and Factual Background

The parties and the Court are familiar with the extensive background facts of Throckmorton's criminal prosecution, conviction, and sentence. Therefore, the Court will not detail the facts again. However, the following is a brief recitation of the procedural facts salient to the issues presently pending before the Court.

On July 26, 2005, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment in which Throckmorton was charged with possession with intent to distribute in excess of 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(vii).

On August 16, 2005, Defendant, with counsel, appeared at an arraignment and pled Not Guilty to the charge. Attorney Charles F. Bowers, III, of the law firm Bowers & Ross, Ambridge, PA, entered his appearance on behalf of Defendant that same day.

On September 28, 2005, Defendant, through counsel, filed an omnibus pretrial motion, which included motions for discovery (including release of Brady material), a bill of particulars, notice of the Government's intention to introduce uncharged misconduct, to preclude audio recordings as inaudible, to suppress all items seized from the search of Defendant's business and residence, to suppress all items seized from the 1988 GMC 2500 3/4 ton truck, for an Order directing officer / agents to retain rough notes, and to suppress audio tapes. See Document No. 17. The government filed a response to the omnibus motion on November 14, 2005. See Document No. 23.

On November 15, 2005, the Court held an evidentiary hearing on Throckmorton's omnibus motion. At that hearing, Throckmorton withdrew his motion to suppress all items seized from the search of his residence. At the hearing, Defendant was represented by Attorneys James J. Ross and Charles F. Bowers, III, of the law firm Bowers and Ross, Ambridge, Pennsylvania.

On December 21, 2005, the Court denied Defendant's suppression motions and denied the other motions contained in the omnibus pretrial motion, with the exception of Defendant's request to require the government to give notice of its intent to introduce evidence of uncharged misconduct and the request that government agents be required to retain their rough notes. See Document No. 26, 27, and 28.

A pretrial conference was conducted on January 9, 2006, at which time the case was scheduled for jury trial on February 13, 2006. At the request of Defendant, the scheduled trial date was continued until March 10, 2006. See Document No. 31.

On March 7, 2006, Attorney Paul D. Boas entered his appearance on behalf of Defendant. On that same day, Attorney Boas moved to postpone and/or reschedule the trial. On March 8, 2006, the Court granted the request and the jury selection and trial were rescheduled to April 24, 2006.

On March 21, 2006, Attorneys Ross and Bowers filed a Motion to Withdraw as Attorneys, which was granted by Text Order on March 22, 2006. See Document No. 52 and Text Order of 3/22/06.

On April 21, 2006, Defendant, through counsel, filed additional pretrial motions, including a motion for reconsideration of exclusion of tapes based on inaudibility. See Document Nos. 57, 58, and 60. The motion was denied by the Court on April 25, 2006. The Court informed all counsel that it would give the jury a curative instruction before it was provided a copy of the transcript and that the transcript would be retrieved from the jury after the recording had been played. See Transcript of Jury Trial, April 25, 2006, at 8-9 (Document No. 93).

Jury selection and voir dire commenced on April 24, 2006. On April 28, 2006, after a four-day trial, a federal jury found Throckmorton Guilty Beyond A Reasonable Doubt as to the single-count indictment.

A sentencing hearing was conducted on August 14, 2006, at which Throckmorton was sentenced to a term of imprisonment of 87 months, to be followed by 5 years of supervised release. Judgment was entered the following day. See Document No. 81.

On August 18, 2006, Throckmorton, through counsel, filed a timely notice of appeal, in which he raised the following five issues:

(i) whether the district court erred in failing to instruct the jury on a lesser included offense that was not charged in indictment;

(ii) whether the district court erred in not instructing the jury that George Gailey was Throckmorton's accomplice;

(iii) whether the district court erred in prohibiting Throckmorton from cross-examining the government's cooperating accomplice witness, Robert Gailey, about the possibility of receiving a sentence reduction;

(iv) whether the district court erred in allowing the government's witness to give expert opinion about "owe" sheets;" and

(v) whether the district court erred in providing the jury with an unofficial transcript of the audiotapes.

See Attachment A, Motion Under 28 U.S.C. § 2255, at 3.

On March 18, 2008, the United States Court of Appeals for the Third Circuit affirmed Throckmorton's conviction and sentence. The appellate court found that the trial court erred when it permitted the government's witness to opine on the general format of an owe-sheet and that the district court erred when it refused to permit Throckmorton's attorney to cross-examine Robert Gailey about the period of incarceration he would be facing had he not cooperated with the authorities. However, the appellate court found as follows:

[W]e can say with confidence that both errors were harmless in the context of the record as a whole. The evidence was overwhelming. Throckmorton had accepted delivery of 233 pounds of marijuana, and while doing do, was caught on tape having an extensive discussion about the trafficking operation. Further, at trial, not only did Robert Gailey testify to Throckmorton's involvement, so did his brother George, who had seen evidence of the operation first-hand. Accordingly, we have no doubt that the jury's verdict would remain the same even in the absence of these errors, and therefore conclude that they were harmless.

Opinion, Filed March 18, 2008.

On May 14, 2008, Throckmorton's petition for rehearing was denied and the mandate issued on May 22, 2008. On May 1, 2009, Throckmorton timely filed the instant motion in which he raises eight (8) claims of ineffective assistance of counsel against his trial and appellate attorney, Paul D. Boas.

Evidentiary Hearing

Under 28 U.S.C. § 2255, a judge must determine whether to summarily dismiss the petition under Rule 4(b) of the Rules Governing § 2255 Proceedings ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party."), or to order an evidentiary hearing under Rule 8 of the Rules Governing § 2255 Proceedings.

A district court should hold an evidentiary hearing in section 2255 cases unless "the motion, files and records show conclusively that the movant is not entitled to relief." United States v. Nahodil, 36 F.3d 323 (3d Cir. 1994). In deciding whether to hold a hearing, a judge may draw upon personal knowledge and recollection of the events that occurred in his or her presence. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3d Cir. 1985).

After reviewing the filings in this case, the record, and drawing upon the Court's personal knowledge and recollection of the events that occurred in its presence, the Court finds that an evidentiary hearing is not required because Throckmorton has failed to raise any genuine issue of material fact. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). Additionally, the files and records of the case conclusively establish that Throckmorton is not entitled to relief. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); ...


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