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Thompson v. United States

United States District Court, S.D. New York

January 3, 2018

John Thompson, Petitioner,
v.
United States of America, Respondent.

          MEMORANDUM OPINION & ORDER

          ALISON J. NATHAN, DISTRICT JUDGE.

         Before 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. 23[1], 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.

         I. Background

         A. Procedural History

         In 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.

         On May 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).

         Separately, 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.

         B. Summary of Judge Fox's Report and Recommendation

         The 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 crew.

         At a 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.

         As 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 and 2.

         In his 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. 1.

         Judge 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)).

         The 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 bono counsel.

         II. Discussion

         A. Review of the Report and Recommendation on Thompson's Habeas Petition

         1. ...


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