United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
J. NATHAN, DISTRICT JUDGE.
the Court are pro se Petitioner John Thompson's
("Petitioner" or "Thompson") objections
to a report and recommendation (the "Report" OR
"R&R") issued by the Honorable Kevin Nathaniel
Fox, United States Magistrate Judge, recommending that
Thompson's motion to vacate his conviction and sentence
under 28 U.S.C. § 2255 be denied, see Dkt. No.
as well as two outstanding motions for leave to amend,
see Dkt. Nos. 19 & 28, and one motion for the
appointment of pro bono counsel, see Dkt. No. 24.
For the following reasons, the Court adopts the Report in its
entirety and denies Thompson's petition. The Court also
denies Thompson's motions for leave to amend and for the
appointment of counsel.
2013, Petitioner was arrested and charged with three total
counts: 1) one count of conspiracy to distribute and possess
with intent to distribute five kilograms and more of cocaine
and one kilogram and more of heroin, in violation of 21
U.S.C. §§ 846 and 841(a) and (b)(1)(A), and 2) one
count of conspiracy to commit a Hobbs Act robbery in
violation of 18 U.S.C. §§ 1951 and 2; and 3) one
count of using and carrying a firearm during and in relation
to a crime of violence, namely the Hobbs Act conspiracy, and
possessing a firearm in furtherance of that crime, in
violation of 18 U.S.C. §§ 924(c) and 2. No.
13-CR-378, Dkt. No. 13. On January 21, 2014, pursuant to a
plea agreement with the respondent, Petitioner pleaded guilty
before this Court to a lesser-included offense of Count One,
that is, a violation of §§ 846 and 841(b)(1)(B),
and to Count Two. No. 13-CR-378, Dkt. No. 80. On May 28,
2014, Petitioner was sentenced to 188 months imprisonment.
Id. Thompson appealed his sentence, but the Second
Circuit Court of Appeals affirmed the judgment of this Court.
No. 13-CR-378, Dkt. No. 121.
9, 2016, Petitioner, now proceeding pro se, filed a
motion to vacate his conviction and sentence pursuant to 28
U.S.C. § 2255. Dkt. No. 1; No. 13-CR-378, Dkt. No. 126.
By Order dated June 7, 2016, the Court referred this matter
to the Magistrate Judge for supervision of habeas
corpus proceedings. Dkt. No. 5. After the Government (or
"Respondent") filed its answer, see Dkt.
No. 6, Petitioner moved for leave to amend his motion for
habeas relief. Dkt. No. 13. On March 20, 2017, Magistrate
Judge Kevin Fox issued a memorandum and order denying
Petitioner leave to amend as futile. Dkt. No. 17. Petitioner
then filed objections to the Magistrate's order, arguing
that the Magistrate erred in construing his motion under
Federal Rule of Civil Procedure 15(a) instead of 15(c), and
erred in his evaluation of the Petitioner's proposed
amendments. Dkt. No. 18. On June 19, 2017, this Court
reviewed Judge Fox's March 20 Order and denied
Petitioner's objections. Dkt. No. 26. Petitioner has
moved for leave to amend or supplement his habeas petition
two more times, see Dkt. Nos. 19 & 28, which
remain pending. Petitioner also appealed the Court's June
19 Order denying him leave to amend to the Second Circuit,
which remains pending as well. See Thompson v. United
States, No. 17-2386 (2d Cir. Aug. 3, 2017).
on April 18, 2017, Magistrate Judge Fox issued a Report and
Recommendation ("R&R") on Petitioner's
original motion to vacate his sentence under 28 U.S.C. §
2255. Dkt. No. 21. Judge Fox recommended that
Petitioner's motion be denied. Id. at 11.
Petitioner filed objections to Judge Fox's R&R, Dkt.
No. 23, and Judge Fox's R&R and Thompson's
objections are now before the Court.
Summary of Judge Fox's Report and Recommendation
Court assumes familiarity with the facts as stated in the
R&R. Briefly, in March 2013, a cooperating witness, Jose
Rodriguez, identified Thompson to law enforcement as an
individual who robbed drug dealers. At the direction of law
enforcement, Rodriguez called Thompson claiming to have
information about a drug trafficking organization that could
be robbed. At a meeting in New York City with Rodriguez and
an additional confidential informant ("CI") working
with law enforcement, Thompson expressed interest in helping
the CI with the robbery of a shipment of drugs coming up from
Florida. At a meeting on or about March 29, 2013, Thompson
told Rodriguez and the CI that he had assembled a robbery
meeting held on or about April 19, 2013, Thompson was
informed that the shipment would arrive on April
22nd. In recorded telephone conversations on April
22, 2013, Thompson indicated the he and his crew were ready
to carry out the robbery and were on their way to New York
City to meet Rodriguez and the CI. When Thompson and his
accomplices reached the designated meeting location, they
were arrested, and evidence and firearms were seized incident
to the arrest.
recounted above, Thompson was charged with three counts, and
ultimately pleaded guilty to a drug conspiracy in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(B) and to a Hobbs
Act conspiracy in violation of 18 U.S.C. §§ 1951
present habeas petition, Thompson principally asserts: (1)
that he is actually innocent of conspiracy to commit a Hobbs
Act robbery, because law enforcement "concocted" a
fictitious robbery, and, as a result, interstate commerce was
not affected; (2) that his guilty plea was not knowing and
voluntary because defense counsel "forced" him to
enter it, and (3) that the Government "[manufactured
jurisdiction" by having a CI contact him to travel to
New York to "rob a fictitious drug dealer, "
inducing and entrapping him to commit a crime that did not
affect interstate commerce. See generally Dkt. No.
Fox concluded that all three arguments were without merit.
First, Judge Fox found that "factual impossibility"
is no defense to Hobbs Act conspiracy. Dkt. No. 21 at 6-7
(quoting United States v. Clemente, 22 F.3d 477,
480-81 (2d Cir. 1994)). The fact that no robbery took place
or could have taken place is immaterial given that the
Government's evidentiary proffer included that Thompson
conspired to conduct a robbery using firearms that traveled
in interstate commerce to steal narcotics which were in and
affecting interstate commerce. Id. at 7. Second,
applying the test set out by the Supreme Court in
Strickland v. Washington, Judge Fox determined that
Thompson had not shown how his attorney's representation
fell below "an objective standard of reasonableness,
" how counsel had "coerced him, " nor how he
was "prejudiced" by counsel's errors,
concluding that "no grounds exist for vacating the
movant's sentence on the basis of ineffective assistance
of counsel." Id. at 8-9 (quoting 104 S.Ct. 2052
(1984)). As a result, Judge Fox also found Thompson's
motion was procedurally barred by the waiver provision of his
plea agreement. Id. at 10-11. Third, Judge Fox,
noting that a valid entrapment defense includes an element of
"a lack of predisposition on the part of the defendant
to engage in criminal conduct, " concluded that Thompson
repeatedly expressed "his willingness to participate in
the robbery scheme, " leaving his entrapment claims
"unfounded." Id. at 9-10 (citing
United States v. Cromitie, 727 F.3d 194, 204 (2d
Cir. 2013) and United States v. Salerno, 66 F.3d
544, 547 (2d Cir. 1995)).
Court will address the R&R and Petitioner's
objections first, followed by Petitioner's two motions
for leave to amend, and his motion for the appointment of pro
Review of the Report and Recommendation on Thompson's