Nichols v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

THOMAS ALBERT NICHOLS, )

)

Petitioner, )

) NO. 3:19-cv-00336

v. )

) JUDGE CAMPBELL

)

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM

Pending before the Court is Petitioner Thomas Albert Nichols’ motion to vacate, set

aside, or correct his sentence under 18 U.S.C. § 2255 based on newly discovered evidence.

(Doc. No. 1). The United States responded to the motion, acknowledging that, under the

circumstances, it would be appropriate for the Court to hold a hearing. (Doc. No. 23). The Court

held a hearing on March 7, 2022, and July 8, 2022.1 The parties filed additional briefing to

address evidence presented at the hearing. (Doc. Nos. 82, 90).

For the reasons stated herein, Petitioner’s motion to vacate, set aside, or correct his

sentence under 18 U.S.C. § 2255 will be DENIED.

1 The hearing transcript is filed at Doc. No. 78 (Vol. I) and Doc. No. 79 (Vol. II). Citations to

the hearing transcript are as follows: “Tr. at PageID# __.”

I. BACKGROUND

A. Evidence Presented at Trial2

In 2002, a jury found Petitioner Thomas Albert Nichols and co-defendant Carlton Smith

guilty of bank extortion.3 The Sixth Circuit summarized the factual basis of the conviction as

follows:

This case involves a home invasion and bank robbery in

Clarksville, Tennessee. Carolyn Pierce is an area manager for First

American Bank. On December 12, 1996. Douglas Daigle and Smith went

to the Pierce household and took Mark Pierce, a seven-year old, and his

grandparents, Leonard and Nancy Beaudoin, hostages. Daigle and Smith

also took Don Pierce hostage when he came home from work. At

approximately 7:30 p.m., Ms. Pierce called home and spoke to her son.

She later arrived home and was taken hostage. During the night, Ms.

Pierce and her family were threatened with harm unless she delivered

money to the men holding her and her family captive. Ms. Pierce was told

that a bomb would be strapped to her husband and that if she successfully

delivered the money from the bank, she would be able to defuse the bomb

and save her husband.

The next morning, December 13, 1996, around 4:00 a.m. or 5:00

a.m., Mr. Pierce was bound and gagged and tied to his Jeep Grand

Cherokee and was left outside a Waffle House on Riverside Drive in

Clarksville. Ms. Pierce went to the bank and emptied out the vault in the

amount of $851,000. Two bags she had filled with the money were placed

in the back of Ms. Pierce’s truck. Daigle told her that there would be an

envelope in the glove box which contained the directions of where to park

the truck. Ms. Pierce parked the truck a short distance from the bank. As

she was walking back to the bank, she observed a black convertible

2 The background of this case is set forth in detail in prior judicial opinions. See United States v.

Nichols, 100 F. App’x 524 (6th Cir. 2004); United States v. Smith, 320 F.3d 647 (6th Cir. 2003).

3 Nichols was convicted of extortion with use of a dangerous weapon and aiding and abetting in

violation of 18 U.S.C. §§ 2113(d), and bank extortion by forced accompaniment aiding and abetting in

violation of 18 U.S.C. §§ 2113(e). He was sentenced to serve 405 months in prison. United States v.

Nichols, 3:00-cr-00095 (M.D. Tenn.), Doc. Nos. 155, 205. Citations to the trial transcript in the

underlying criminal case are to “Tr. Trans., Vol. __, at PageID# __.”

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Mustang drive past her which eventually parked next to her pick-up

truck. Ms. Pierce returned to the bank, waiting for a call which never

came. At 9:30 a.m., bank security was contacted. Mr. Pierce was located,

unharmed, by some private citizens, freed by officers of the Clarksville

Police Department and reunited with his wife.

The widow of [Douglas] Daigle, Capri Seiber, testified at trial that

Mr. Nichols was driving the Mustang. Ms. Seiber testified that she heard

her husband and Smith over two-way radios talking about the money they

obtained from Ms. Pierce’s delivery. Ms. Seiber stated that she and

[Douglas] Daigle in one car, and Smith and Nichols in a black Mustang,

drove to Goodlettsville where they divided up the money in a hotel room

at approximately 9:30 a.m. that morning.

United States v. Nichols, 100 F. Appx. at 526.

At trial, evidence against Nichols included Capri Seiber’s testimony that Douglas

Daigle told her Nichols would be working as the “outside man” at the Clarksville robbery.

Seiber also testified that Nichols and Smith stayed at a Shoney’s Inn in Goodlettsville and that

Douglas Daigle was upset one of them used their real name at the hotel. (Tr. Trans., Vol. V,

PageID# 616). The Government introduced a receipt showing that someone name “Terry

Nichols” stayed in the hotel for two days shortly before the robbery. (Tr. Trans., Vol. VIII,

PageID# 1797-98 (describing Ex. 36)). The receipt was signed “Thomas Nichols” in Nichols’

distinctive signature, and listed an address similar to Nichols’ address and the license plate

number of a car associated with him. (Id. (describing Ex. 50)).

In addition, Seiber testified that Nichols and Smith left the hotel around 9:00 or 9:30

a.m. to drive the black Mustang to Smith’s house, which was about 170 miles to the east. (Tr.

Trans., Vol. V, PageID# 634-35, 695). Approximately three hours later, Nichols was pulled

over driving a black Mustang less than 10 miles from Smith’s house. (Tr. Trans., Vol. VIII,

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PageID# 1801-04).

Evidence at trial also showed that shortly after the robbery, Nichols, who was

unemployed and lived with his mother, purchased a Harley-Davidson motorcycle, and Nichols’

mother had $48,000 deposited into her bank account. (Id. at PageID# 1804).

B. Evidence Presented at the Hearing

Petitioner maintains that he is innocent of the crimes for which he was convicted and

that, serendipitously, while incarcerated at FCI-Elkton, he encountered and befriended the

person who actually drove the black Mustang during the Clarksville robbery. The person he

met in prison was Gordon Daigle (“Daigle”), the son of Douglas Daigle, who was the

undisputed ringleader of the Clarksville bank extortion. Petitioner presented an affidavit signed

by Daigle which states that that Daigle, not Nichols, drove the black Mustang, that Nichols “did

not plan, aid, or assist in the planning or execution of this robbery,” and that Capri Seiber falsely

testified that Nichols was involved in order to protect Daigle. (Doc. No. 1-1, ¶¶ 3-5, 12). The

affidavit also states that the hotel room that appeared to have been rented by Nichols was

actually rented by Douglas Daigle using a Tennessee driver’s license bearing Thomas Albert

Nichols’ name. The affidavit stated that Douglas Daigle used the same false identification to

purchase a shotgun that was used in the robbery in the name of Thomas Albert Nichols. (Id. ¶¶

13- 14).

At the hearing, the Court heard testimony from Thomas Albert Nichols, Gordon Daigle,

Carlton Smith, and the two people who signed the affidavit as witnesses – Mark Wasco and

Bryan Noel. Gordon Daigle testified that, for the most part, the statements in the affidavit were

false. He testified that he did not serve as the getaway driver and had no knowledge of the

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robbery. He stated that he had spoken with Nichols about his father, but did not tell Nichols

that he was part of the Clarksville robbery. Daigle testified that he had no part in drafting the

affidavit and that he signed it because Nichols, Wasco, and Noel kept asking him to. He stated,

“I remember having the paper shoved under my nose and signing it on like – I think I might

have even signed it on the wall or on a window. I don’t even remember.” (Tr. at PageID# 196,

223).

Mark Wasco and Bryan Noel, both friends of Nichols, signed the affidavit as witnesses.

(Id. at PageID# 254, 256). Noel, who was serving a lengthy sentence for money laundering,

bankruptcy fraud, and conspiracy, testified he and Daigle drafted the affidavit together and that

Nichols was not involved. (Id. at PageID# 291, 297-98). Noel testified that, long before Gordon

Daigle arrived at FCI-Elkton, he was generally familiar with the underlying facts of the robbery

and Nichols’ criminal case based on his conversations with Nichols and review of Nichols’

presentence report. (Id. at PageID# 325-26). Wasco recalled that Daigle and Nichols discussed

the affidavit in advance and that Daigle, Nichols, and Noel reviewed the affidavit together. (Id.

at PageID# 249-50). Wasco testified that Nichols tried to dissuade Daigle from signing the

affidavit, but Noel did not recall any such efforts. (Id. at PageID# 274). For his part, Nichols

claimed he had no part in drafting the affidavit and did not know anything about Daigle’s role

in the robbery until he was presented with the prepared affidavit. (Id. at PageID# 364).

The last witness was Nichols’ co-defendant, Carlton Smith. Smith testified that Nichols

and Douglas Daigle were involved in the crime. (Id. at PageID# 412-13). Smith said he did not

know Gordon Daigle. (Id.).

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II. LEGAL STANDARD

Petitioner brings this action pursuant to 28 U.S.C. § 2255. Section 2255 provides a

statutory mechanism for challenging the imposition of a federal sentence:

A prisoner in custody under sentence of a court established by Act of Congress

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.

28 U.S.C. § 2255(a). In order to obtain relief under Section 2255, a petitioner “must demonstrate

the existence of an error of constitutional magnitude which had a substantial and injurious effect

or influence on the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855,

858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

A petitioner seeking to file a second or successive motion to vacate his sentence must

first seek authorization from the Court of Appeals under 28 U.S.C. §§ 2255(h) and 2244(b)(3).

Authorization is available only if the petitioner’s application contains either “(1) newly

discovered evidence that, if proven and viewed in the light of the evidence as a whole, would

be sufficient to establish by clear and convincing evidence that no reasonable factfinder would

have found the movant guilty of the offense; or (2) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h).

Petitioner’s burden at the authorization stage is not onerous and requires only a prima

facie showing of entitlement to file a second or successive Section 2255 motion. See 28 U.S.C.

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§ 2244(b)(3)(C). The Sixth Circuit found Petitioner made the requisite prima facie showing that

his petition contains newly discovered evidence that, if proven and viewed in the light of the

evidence as a whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found him guilty and authorized him to file this second or

successive petition under Section 2255. In re: Thomas Albert Nichols, No. 18-5838 (6th Cir.

April 24, 2019). Petitioner’s Section 2255 claim is therefore properly before the Court.

As an initial matter, it is not clear that a free-standing claim of actual innocence – i.e., a

claim of actual innocence not grounded in constitutional or statutory error – is cognizable under

Section 2255. See Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52,

71-72 (2009) (“Whether [a federal constitutional right to be released upon proof of ‘actual

innocence’] exists is an open question. We have struggled with it over the years, in some cases

assuming, arguendo, that it exists while also noting the difficult questions such a right would

pose and the high standard any claimant would have to meet.”). In Herrera v. Collins, the

Supreme Court left open the possibility of federal habeas relief in a capital case where a “truly

persuasive demonstration of ‘actual innocence’ made after trial would render the execution of

defendant unconstitutional,” but qualified that “the threshold showing for such an assumed right

would be extraordinarily high.” 506 U.S. 390, 417 (1993).

The United States takes the position that, in a non-capital case, such as this one, a

freestanding claims of actual innocence is not cognizable under Section 2255. (Doc. No. 90 at

14, n.8 (citing Harris v. Warden, 801 F.3d 1321, 1324 n.5 (11th Cir. 2015) (“A § 2255(h)(1)

showing serves only to allow courts to consider the merits of a petitioner’s constitutional [and

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statutory] claims;” it is “not an invitation to file freestanding claims of actual innocence.”))).

The Government argues that the Court needs to decide this issue because even if such relief

were available, Petitioner does not meet the “extraordinarily high showing” to merit such relief.

The Government appears to assume that the “extraordinarily high showing” is the

standard articulated in 28 U.S.C. § 2255(h)(1), under which the Defendant must “establish by

clear and convincing evidence that no reasonable factfinder would have found him guilty of the

offense.” (Doc. No. 90 at 13). By its terms however, the certification requirement of Section

2255(h)(1) is just that – a prerequisite to bringing a second or successive claim. The language

of the statute does not suggest that, if certification is granted, the Court must apply this standard

to the habeas claim.

Defendant cites the standard for considering a habeas claim in which a federal statute,

but not the Constitution, is the basis for seeking post-conviction relief. (See Doc. No. 82 at 5

(citing United States v. Brown, 62 F.3d 1418 (Table), No. 94–5917, 1995 WL 465802, (6th Cir.

1995) (citing Reed v. Farley, 512 U.S. 339, 353-54 (1994))). In Reed, in the context of

discussing habeas petitions where statutory violations are at issue, the Supreme Court explained

that the “established rule” with respect to habeas claims based on nonconstitutional claims is

that such claims “can be raised only if the alleged error constituted a ‘fundamental defect which

inherently results in a complete miscarriage of justice.’” 512 U.S. at 354 (citing Stone v. Powell,

428 U.S. 465, 477 n.10 (1976)).

Under the circumstances of this case, it is unnecessary to decide whether Petitioner may

pursue a freestanding claim of actual innocence, and, if so, what the precise legal standard is

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for evaluating such a claim. If such a claim may proceed, it undoubtedly faces a high bar for

relief. See Herrera, 506 U.S. at 417 (finding that the threshold showing for a freestanding actual

innocence claim “would necessarily be extraordinarily high”). Petitioner’s claim fails under

both the miscarriage of justice standard advanced by Petitioner and the clear and convincing

standard asserted by the United States.

III. ANALYSIS

In reviewing Petitioner’s claim of actual innocence based on new evidence, the Court

must consider the “evidence as a whole.” See e.g., House v. Bell, 547 U.S. 518, 538, 39 (2006).

The Court will state at the outset that none of the witnesses were particularly credible. Not only

do all of the witnesses have significant criminal history bearing on their credibility, but their

stories about the course of events leading to the execution of the affidavit are inconsistent. Even

if the witnesses were entirely credible and their testimony consistent so that the Court could

find that Daigle helped draft the affidavit and voluntarily signed it (which was not established),

given that Daigle now denies any part in the affidavit and any role in the Clarksville robbery, it

is difficult to fathom how a reasonable jury would find that the repudiated affidavit establishes

Nichols’ innocence.

Moreover, if Daigle had testified consistent with the affidavit, which he did not, such

testimony would not negate other evidence adduced at trial, such as Nichols’ traffic violation

while driving a car matching the description of the car used in the robbery at a time and location

fitting the timeline of the robbery; his signature on the hotel receipt; the purchase of a Harley

Davidson motorcycle; and the deposit of a large sum into his mother’s bank account shortly

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after the robbery. And the assertion that Capri Seiber lied about Nichols’ involvement in the

robbery to protect Daigle would merely be one consideration for the jury to weigh in

considering the credibility of Seiber’s testimony; it does not unequivocally establish that she

was lying. Finally, the Court considers that Carlton Smith affirmed Nichols’ role in the robbery

and said Daigle was not involved.

IV. CONCLUSION

In light of the foregoing, the Court finds that Petitioner has not satisfied the high

evidentiary burden to warrant the exceptional relief of vacating his 20-year-old conviction and

holding a new trial. Accordingly, Petitioner’s Motion to Vacate, Set Aside or Correct Sentence

under 28 U.S.C. § 2255 will be DENIED, and this action DISMISSED.

An appropriate Order shall enter.

Vi x C-

WILLIAM L. CAMPBELL, JR.

UNITED STATES DISTRICT JUDGE

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