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United States of America v. Kenneth Thompson and Romel Bolger

May 2, 2012


The opinion of the court was delivered by: Savage, J.


Kenneth Thompson and Romel Bolger, who were convicted of various drug offenses,*fn1 have filed motions under 28 U.S.C. § 2255. Both contend that their attorneys were ineffective at the suppression hearing because they had failed to conduct an investigation. They argue that a proper investigation would have uncovered evidence that could have been used to contradict the asserted basis for the search of the residence in which incriminating drug evidence was found. Bolger also claims that his attorney was ineffective at his sentencing. He contends that his attorney failed to use certain information to impeach the agent whose testimony was proffered to support a two-level enhancement for possession of a firearm in connection with a drug trafficking offense.

After reviewing the record of the suppression hearing, the trial and the sentencing hearing, we conclude that the attorneys' performance was not deficient; and, even if it was, the defendants suffered no prejudice. Therefore, the motions will be denied.


Responding to a report of gun shots, police found Bolger, who was bleeding and suffering from a gunshot wound, in the middle of Levick Street in Philadelphia. Almost contemporaneously, other officers arrived at the driveway in the rear of 1053 Levick Street where they found evidence of a gun fight. They observed a discarded hand gun, spent shell casings and two cars with bullet holes in the doors. The front door of one of the cars was open.

Witnesses at the scene described a shoot-out between two groups of men. According to police, one of the witnesses told them that a male pulled a small child from one of the shot-up vehicles and went into 1053 Levick Street. When the officers received no response to knocking and heard water running in the house, they concluded that someone who may have been injured in the shoot-out might be inside.

When a supervisor arrived at the scene, he decided to enter the building to determine whether an injured person was inside. He determined that it would take too much time to secure a warrant. Therefore, he ordered officers to forcibly enter the property.

Immediately inside the door, the officers found a hand gun. In the basement level, they discovered two more guns, a quantity of cocaine, bags of crack cocaine, a scale, a substantial sum of currency, and drug packaging materials.

The defendants moved to suppress the evidence found in the house, arguing that it was the product of an illegal warrantless search. They specifically argued that it was unreasonable for the police to believe that an injured person might have been inside the property. Finding that the witnesses who testified at the suppression hearing were credible and the conflicting testimony explicable, we determined that exigent circumstances existed to justify a warrantless entry into the property. Therefore, the motions to dismiss were denied.

At the trial, the evidence against the defendants consisted primarily of the items, including guns, drugs, and drug paraphernalia, found by the police after they forcibly entered 1053 Levick Street. Based upon this evidence, the jury convicted the defendants.

The defendants appealed the denial of their suppression motions and the sufficiency of the evidence. The Third Circuit Court of Appeals affirmed. United States v. Thompson, 357 Fed. App'x 406 (3d Cir. 2009). The defendants then filed timely § 2255 motions, raising ineffectiveness of counsel.

Legal Standard

Ineffective assistance of counsel claims are evaluated under the familiar two part standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First, the petitioner must demonstrate that his attorney's performance was deficient, that is, "counsel's representation fell below an objective standard of reasonableness," considering all of the surrounding circumstances of the particular case and the facts viewed at the time of counsel's conduct. Strickland, 466 U.S. at 687-89. Second, if there was deficient performance, he must show that it prejudiced his defense. Id. at 691-92. The prejudice prong requires a showing that as a result of the deficient representation, a reasonable probability exists that the results of the proceedings would have been different. Id. at 694. A reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id. In other words, the prejudice component focuses on whether counsel's deficient performance renders the result of the proceedings unreliable or the proceeding fundamentally unfair. Williams, 529 U.S. at 393 n.17.

Counsel's performance is deficient only where the defendant can show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. Where counsel's conduct falls within the wide range of reasonable professional assistance ...

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