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United States v. Thompson

United States District Court, Third Circuit

November 13, 2013

UNITED STATES OF AMERICA
v.
RODNEY THOMPSON

OPINION

GUSTAVE DIAMOND, District Judge.

Presently before the court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Document No. 813 at Criminal No. 08-168-2; Document No. 22 at Criminal No. 09-91) filed by Rodney Thompson ("petitioner"). Because it is untimely, and there are no grounds for tolling of the limitation period, petitioner's motion will be dismissed[1]

On April 15, 2008, a grand jury returned a five-count indictment at Criminal No. 08-168 charging petitioner and 14 others at Count One with conspiracy to distribute and possess with intent to distribute 1 kilogram or more of heroin in violation of 21 U.S.C. § 846.[2] On March 17, 2009, the government filed an information pursuant to 21 U.S.C. § 851 charging that defendant had been convicted of a prior felony drug offense (possession with intent to distribute cocaine) in the Allegheny County Court of Common Pleas on October 6, 1989.

Following the filing of the § 851 information on the morning of March 17, 2009, petitioner appeared before this court that afternoon and changed his plea to guilty at Count One at Criminal No. 08-168 pursuant to a written plea agreement. At that same hearing, and pursuant to the same plea agreement, petitioner also waived his right to indictment and pled guilty to a one-count information at Criminal No. 09-91 charging him with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).

Under the terms of the plea agreement, petitioner waived his right to take a direct appeal from his conviction or sentence, subject to several enumerated exceptions, and further waived his right to file a § 2255 motion or any other collateral proceeding attacking his conviction or sentence. Plea Agreement, ¶ A 15. The plea agreement also contained a provision expressly recognizing the government's right to file an information pursuant to 21 U.S.C. § 851 stating petitioner's one prior conviction as a basis for increased punishment. Id. at ¶ B6. However, the agreement further provided that: "[a]t the time of sentencing... or within 1 year of the imposition of sentence... the United States Attorney may, in her discretion, file a motion pursuant to § 5K1.1 of the Sentencing Guidelines... or under Rule 35(b), Federal Rules of Criminal Procedure." Plea Agreement, ¶ B5.

In accordance with the terms of the plea agreement, the government filed a motion pursuant to § 5K1.1 of the United States Sentencing Guidelines on August 25, 2009. At a sentencing hearing held that same day, the government's motion was granted and petitioner was sentenced to a term of imprisonment of 120 months at each of Count One of the Indictment at Criminal No. 08-168 and Count One of the Information at Criminal No. 09-91, to be served concurrently, to be followed by a term of supervised release of 5 years at Count One at Criminal No. 08-168 and 3 years at Count One at Criminal No. 09-91, to be served concurrently.[3] Petitioner did not file a direct appeal from his judgment of conviction and sentence.

On October 5, 2012, notwithstanding the condition of his plea agreement waiving the right, petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, [4] alleging "ineffective assistance of counsel and prosecutorial misconduct" during the "plea bargaining process." After receipt of this court's notice pursuant to United States v. Miller , 197 F.3d 644, 649 (3d Cir. 1999) advising him that he must bring all claims in a single motion, petitioner reported that he wished to have his petition adjudicated as filed. The government filed a response and petitioner filed a reply. Upon consideration of petitioner's motion and brief, the government's response, petitioner's reply and the record as a whole, this court finds that petitioner's motion is untimely and that there is no basis for tolling of the applicable one-year limitation period.

Section 2255 motions are subject to a one-year period of limitation established by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"); Kapral v. United States , 166 F.3d 565, 567 (3d Cir. 1999). Generally, the limitation period begins to run on "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1).

Here, petitioner was sentenced on June 17, 2009, and he did not file a direct appeal. Accordingly, his conviction became final when the time period for filing a notice ofappeal expired on July 1, 2009. See, United States v. Delgado , 363 Fed.Appx. 853, 854 (3d Cir. 2010); F.R.A.P. 4(b)(1)(A). The AEDPA's one-year limitation period for filing a § 2255 motion therefore expired on July 1, 2010. However, petitioner did not file his pending § 2255 petition until October 5, 2012, more than 2 years and 3 months after the expiration of the limitation period. Accordingly, absent a basis for tolling of the limitation period, petitioner's motion clearly is time-barred under § 2255(f).

Petitioner acknowledges that his motion was not filed within one year of the date his conviction became final but instead argues that he is entitled to tolling of the limitation period under 28 U.S.C. § 2255(f)(3), [5] which extends the limitation period from the date on which the judgment of conviction becomes final to the "date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Petitioner alleges that the right that he is asserting - the right to effective assistance of counsel during plea bargaining - was "initially recognized" by the Supreme Court on March 21, 2012, in the cases of Lafler v. Cooper, ___ U.S. ___ , 132 S.Ct. 1376 (2012) and Missouri v. Frye, ___ U.S. ___ , 132 S.Ct. 1399 (2012), and that he therefore had one year from that date to file his motion. Petitioner's argument is without merit.

Contrary to petitioner's assertion, the right to effective assistance of counsel during plea bargaining was not "newly recognized" in either Lafler or Frye. In fact, the right to effective assistance of competent counsel during plea negotiations was recognized as far back as 1970 in McMann v. Richardson , 397 U.S. 759 (1970). Fifteen years later, in Hill v. Lockhart , 474 U.S. 52, 58 (1985), the Supreme Court held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel" and that in the context of a guilty plea, the prejudice prong of that test can be met by a showing that, but for counsel's errors, petitioner would have proceeded to trial instead of pleading guilty. Hill v. Lockhart , 474 U.S. 52, 56-59 (1985).[6] In addition, in Padilla v. Kentucky, ___ U.S. ___ , 130 S.Ct. 1473, 1486 (2010), the Supreme Court again made clear that "the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel."

Accordingly, rather than "creating" a newly recognized right to the "effective assistance of counsel during the plea bargaining process, " both Lafler and Frye merely applied the long-standing test for ineffective assistance of counsel that was adopted in Strickland, and subsequently held in Hill and Padilla to govern claims of ineffective assistance during the critical plea bargaining phase, to different legal questions. Unlike Hill and Padilla, in which the defendants alleged that their counsel provided incorrect legal advice resulting in their acceptance of unfavorable plea agreements, the defendant in Lafler alleged that ineffective assistance of counsel caused him to reject a favorable plea offer leading to a conviction following a trial and a significantly higher sentence than had been offered in the rejected plea, while the defendant in Frye alleged ineffective assistance where his counsel failed to inform him of a favorable plea offer, which subsequently lapsed, resulting in the defendant ultimately accepting a less favorable plea deal.

Although the Court of appeals for the Third Circuit has not yet addressed this issue, every appellate court that has considered it has concluded: without exception, that neither Lafler nor Frye recognized a new right "made retroactively applicable to cases on collateral review" for purposes of § 2255(1)(3). See In re King , 697 F.3d 1189 (5th Cir. 2012); Hare v. United States , 688 F.3d 878, 880 (7th Cir. 2012); Bucnrostro v. United States , 697 F.3d 1137, 1140 (9th Cir. 2012); In re Perez , 682 F.3d 930, 932-34 (11th Cir. 2012); United States v. Lawton 506 Fed.Appx. 722, 725-26 (10th Cir. 2012); see also Williams v. United States , 705 F.3d 293, 294 (8th Cir. 2013)(Lafler and Frye analysis consistent with prior precedent and did not announce anew rule of constitutional law such that would permit the tiling of a successive § 2255 motion). Likewise, several courts within the Third Circuit also have held that Lafler and Frye did not initially recognize a new right retroactively applicable to cases on collateral review which would permit tolling of the limitation period under § 2255(f)(3). See Sayles v. United States, 2013 WL 4523593 (W.D.Pa., Aug. 27, 2013)(J. Conti); Cole v. United States 2013 WL 3989069 (W.D.Pa., Aug. 2, 2013)(J. Conti); United States v. Denson , 2013 WL 588509 (W.D.Pa. Feb. 11, 2013)(J. McVerry).

Moreover, even if Lafler and Frye had initially recognized a new right made retroactively applicable to petitioner's ease, petitioner would receive no benefit from those decisions. Petitioner is not alleging here either that his defense counsel failed to infirm, him of a favorable plea offer that subsequently lapsed, as in Frye or that his counsel provided incorrect legal advice that resulted in petitioner rejecting a favorable plea oiler, as in Lafler. Instead, petitioner alleges that his counsel provided "had advice" that caused him to accept a plea offer instead of proceeding to trial. Accordingly, petitioner's claim falls squarely within the realm of Hill and Padilla, not Lafler or Frye. ...


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