The opinion
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
UNITED STATES OF AMERICA
v. CRIMINAL ACTION NO. 3:14-00045
CIVIL ACTION NO. 3:16-02049
DEMETRIUS D. THOMAS
MEMORANDUM OPINION AND ORDER
Pending before this Court are Defendant’s four related motions: his Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 83), his Motion to Amend his
§ 2255 Motion (ECF No. 86), his first Amendment to his § 2255 Motion (ECF No. 92), and his
second Amendment to his § 2255 Motion (ECF No. 105).
Pursuant to an Order issued on March 7, 2016, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for proposed findings of fact and recommendation for
disposition. ECF No. 84. On January 14, 2019, the Magistrate Judge submitted proposed findings
and recommended that this Court deny Defendant’s motions and dismiss this civil action from the
Court’s docket. Proposed Findings and Recommendation, ECF No. 108, at 14. Defendant now
objects to the findings and recommendation. Objections to Proposed Findings and
Recommendations, ECF No. 109 [hereinafter Objections]. For the reasons below, the Court adopts
the proposed findings and recommendations of Magistrate Judge Tinsley, denies Defendant’s
motions, and dismisses this action from the Court’s docket.
I. BACKGROUND
A. Plea and Sentencing
On February 25, 2014, Defendant Demetrius Thomas was named in an indictment charging
various controlled substance offenses. Indictment, ECF No. 16. Throughout his district court
proceedings, Defendant was represented by court-appointed counsel, Sebastian M. Joy. See
Transcript, ECF Nos. 66, 68.
On May 5, 2014, Defendant entered into a written plea agreement in which he pleaded
guilty to one count of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Agreement, ECF
No. 43. In the written plea agreement Defendant expressly waived his right to appellate review of
his conviction and his sentence—so long as the sentence did not exceed the maximum statutory
penalty prescribed by law—and waived his right to a post-conviction collateral attack—except for
any claim based upon ineffective assistance of counsel. Id. at ¶ 10.
On May 5, 2014, Defendant pleaded guilty, in accordance with the written plea agreement,
to the charge in the indictment. ECF Nos. 39, 42, 46. This Court conducted a thorough plea
colloquy in accordance with Rule 11 of the Federal Rules of Criminal Procedure, including
receiving Defendant’s acknowledgement of the rights he was waiving and his satisfaction with his
attorney’s representation. Transcript, ECF No. 66, at 7. Additionally, this Court specifically
discussed with Defendant the appellate and collateral attack waivers, and Defendant acknowledged
that he understood the effects of the waiver provision and the effect of his guilty plea. Id. at 11–
12.
On August 4, 2014, Defendant appeared for sentencing. Transcript, ECF No. 68. This
Court determined that Defendant’s total offense level under the United States Sentencing
Guidelines was 29, with a criminal history category of VI, yielding a guideline range of 151-188
months of imprisonment. Id. at 5. This calculation included an enhancement under U.S.S.G. §
4B1.1 after this Court found that Defendant qualified as a career offender based upon two prior
controlled substance offenses. Id. at 4–5. However, this Court varied downward from the guideline
range and sentenced Defendant to 120 months of imprisonment, followed by supervised release
for three years. Id. at 17–19. A Judgment was entered on August 6, 2014. ECF No. 53.
B. Appeal
Defendant then appealed to the United States Court of Appeals for the Fourth Circuit. ECF
Nos. 59, 62. However, his attorney, Mr. Joy, filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that he believed there were no meritorious grounds for appeal, but
questioning whether the sentence was reasonable. Opinion, ECF No. 72, at 2. Defendant filed a
pro se supplemental brief in which he asserted the following: (1) his guilty plea was not knowing
and voluntary; (2) his sentence was not reasonable; (3) he was improperly designated as a career
offender; and (4) his counsel provided ineffective assistance of counsel. Id.
On February 24, 2015, the Fourth Circuit affirmed Defendant’s conviction and sentence.
United States v. Thomas, No. 14-4656, (4th Cir. Feb. 24, 2015). The Court held that Defendant’s
guilty plea satisfied Rule 11 of the Federal Rules of Criminal Procedure and was knowing,
voluntary, and supported by a sufficient factual basis. Opinion, at 2–3. The Court also found that
Defendant’s sentence was reasonable. Id. at 3. However, the Court declined to address Defendant’s
claims of ineffective assistance of counsel, finding that because there was no evidence of
ineffective assistance of counsel on the face of the record, the claim was better suited for review
in a § 2255 motion. Id. at 5.
C. Motion to Vacate Arguments
1. Original Motion
On March 3, 2016, Defendant, acting pro se, filed his first motion—a Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 83. In the motion,
Defendant asserts the following two grounds for relief: (1) ineffective assistance of counsel during
plea negotiation/hearing, and (2) ineffective assistance of counsel during sentencing. Id. at 4–5.
2. Motion to Amend
On March 7, 2016, Defendant filed a Letter-Form Motion to Change or Amend his § 2255
Motion. ECF No. 86. However, the motion did not include any amendments or additional grounds
for relief, but merely stated that Defendant did not have access to the law library and materials to
file additional claims. See id. Thus, he sought leave to amend his motion once he was returned to
the general population. See id.
3. First Amendment to Motion to Vacate
On June 20, 2016, Defendant filed a Supplement to Motion to Vacate Sentence § 2255.
ECF No. 92. In this motion, Defendant raises an additional claim that he is entitled to have his
judgment set aside pursuant to the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015). Id. at 1.
4. Second Amendment to Motion to Vacate
On May 22, 2018, Defendant filed a second Motion to Amend his § 2255 Motion. ECF
No. 105. In this motion to amend, Defendant asserts that his sentence is improper because his prior
West Virginia conviction for conspiracy to possess with intent to deliver a controlled substance
cannot count as a predicate offense for the career offender enhancement, because it is broader than
the definition of a “controlled substance offense” contained in U.S.S.G. § 4B1.2. See id. at 1.
Because the Magistrate Judge found that it is apparent from the face of Defendant’s
motions that he is not entitled to any relief under § 2255, the United States of America was not
required to file a response to any of the motions. Proposed Findings and Recommendation, at 6.
II. STANDARD OF REVIEW
This Court must “make a de novo determination of those portions of the ... [Magistrate
Judge’s] proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C); see e.g., Berry v. Colvin, No. 14-9859, 2015 WL 1506128, at *1 (S.D. W. Va. Mar.
31, 2015).
III. DISCUSSION
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held
that, in order to state a claim for ineffective assistance of counsel, a defendant must “show that
counsel’s performance was deficient,” and also show “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
687, 694. The Supreme Court also held that “there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in [this particular] order or even to address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 698.
In Lafler v. Cooper, 566 U.S. 156 (2012), the Supreme Court confirmed that “[i]n the
context of pleas a defendant must show the outcome of the plea process would have been different
with competent advice.” Id. at 163 (emphasis added). Therefore, a defendant who pleaded guilty
must demonstrate that “there is a reasonable probability that, but for counsel’s errors, he would
not have pled guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985).
Importantly, “[a]bsent clear and convincing evidence to the contrary, a defendant is bound
by the representations he makes under oath during a plea colloquy.” Fields v. Attorney Gen., 956
F.2d 1290, 1299 (4th Cir. 1992). Further, In United States v. LeMaster, 403 F.3d 216, 221 (4th
Cir. 2005), the Fourth Circuit held that, absent extraordinary circumstances, a district court is not
required to conduct an evidentiary hearing concerning a challenge to a guilty plea where the
defendant’s allegations contradict the defendant’s sworn statements made during a proper Rule 11
colloquy. See id. Rather, the district court may find that such allegations are “palpably incredible”
and “patently frivolous and false.” Id.
A. Ineffective Assistance at Plea Hearing
In Defendant’s original § 2255 motion, he first argues that he is entitled to relief because
he received ineffective assistance of counsel at his plea hearing. ECF No. 83, at 4. More
specifically, Defendant claims that he received ineffective assistance of counsel because his
attorney represented to him that as a result of a deal with the prosecutor the “career offender
enhancement would not be sought after.” See id. Defendant also claims that his attorney gave him
the plea agreement only moments before the plea hearing, “without sufficient time to understand
and digest [the] plea agreement.” Id. Defendant claims that as a result of these facts he did not
knowingly, willingly, or intelligently enter into the plea agreement. See id. The Court disagrees
with Defendant and adopts the Magistrate Judge’s findings as to this issue.
1. Career Offender Enhancement Argument
Regarding Defendant’s first argument that he received ineffective assistance of counsel at
the plea stage because his attorney stated that the “career offender enhancement would not be
sought after,” the Court finds that Defendant was not prejudiced by this statement, as required
under Strickland. Even assuming Defendant’s attorney was deceptive or misleading, and
Defendant interpreted his attorney’s statement as pertaining to the sentencing guidelines
enhancement, any prejudice was cured via the plea agreement and during the plea hearing.
First, Defendant’s signed plea agreement stated that “the matter of sentencing is within the
sole discretion of the Court,” that the “United States has made no representations or promises as
to a specific sentence,” and that “no promises or inducements have been made to me other than
those in this agreement ….” ECF No. 43, at 5, 7 (emphasis added). These facts, which Defendant
acknowledged, would necessarily eliminate any belief that the prosecution agreed to take the
career offender provision “off the table,” or any belief that such an agreement would be meaningful
at sentencing. Objections, at 2.
Second, even if Defendant was somehow still under the impression that an ancillary
agreement existed with the prosecution regarding his sentencing, Defendant’s acknowledgments
during his plea hearing must have cured that mistaken belief as well. Defendant confirmed in his
plea colloquy that he understood “[at sentencing] the Court cannot be bound by any agreement
reached by any parties in this matter,” and that “the sentence [the Court] may impose could be
different from any estimate [his] lawyer has given [him.]” Transcript, ECF No. 66, at 11, 31
(emphasis added). Therefore, because the signed agreement and statements Defendant made under
oath completely contradicted his lawyer’s alleged claim, and Defendant nonetheless chose to plead
guilty, Defendant cannot prove there is any probability that, but for counsel’s errors, he would not
have pleaded guilty.
2. Timing Argument
Defendant also argues that he received ineffective assistance of counsel at the plea stage
because his attorney gave him the plea agreement without sufficient time to understand the
agreement. The Court again finds that—assuming counsel’s performance was deficient—
Defendant did not suffer any prejudice. The Fourth Circuit previously addressed Defendant’s
argument “that he lacked sufficient time and knowledge to understand the plea agreement,” and
found this assertion to be “without merit.” ECF No. 72, at 3. The Fourth Circuit reached this
conclusion because it held that this Court “conducted a thorough plea colloquy, fully satisfying
the requirements of Rule 11 and ensuring that [Defendant’s] plea was knowing, voluntary, and
supported by a sufficient factual basis.” Thus, even if the Court accepts that Defendant’s attorney
gave him the plea agreement without sufficient time to understand it, this defective assistance did
not cause any prejudice to Defendant as a result of the thorough plea colloquy.1 As a result,
Defendant cannot state a claim for ineffective assistance of counsel at the plea stage.
B. Ineffective Assistance at Sentencing
Next, Defendant argues in his original § 2255 motion that he is entitled to relief because
he received ineffective assistance of counsel at his sentencing hearing. ECF No. 83, at 5. Defendant
claims he received ineffective assistance at his sentencing because his counsel failed to argue that
Defendant was addicted to heroin, and failed to argue that the government did not file an 851
information. See id. The Court finds that Defendant simply misunderstands the facts and the law,
and therefore disagrees.
As state above, in Strickland v. Washington, the United States Supreme Court held that, in
order to state a claim for ineffective assistance of counsel, a defendant must first show that
counsel’s performance was deficient. In this case, any argument that Defendant’s attorney was
deficient because he failed to argue that Defendant was addicted to heroin must be rejected,
regardless of the standard deficiency, because such an assertion is simply untrue. First,
1 The Court also notes that Defendant confirmed under oath at his plea hearing that he “had enough time to
discuss [his] case with [his] lawyer,” contradicting his claim that his counsel was deficient. Transcript, ECF No. 66,
at 7.
Defendant’s attorney addressed Defendant’s addiction to heroin, and other drugs, numerous times
in his sentencing memorandum,2 and referred to Defendant’s drug addiction during the sentencing
hearing.3 Second, Defendant’s argument that his counsel was deficient because he did not object
to the government’s failure to file an “851 information” is based on Defendant confusing statutory
and guideline enhancements. An information filed under 21 U.S.C. § 851 sets forth the procedure
required to establish that the defendant has been convicted of a prior felony drug offense in order
to create a statutory enhancement, not a guideline enhancement. See 21 U.S.C. § 851. Because the
prosecution did not attempt to create a statutory enhancement, and because the prosecution does
not need to file an information under 21 U.S.C. § 851 for a court to impose a career offender
guidelines enhancement, any objection by Defendant’s attorney would have been frivolous.
In his second motion to amend, Defendant also argues that he received ineffective
assistance of counsel at sentencing because his attorney failed to argue that his “conspiracy to
possess with intent to deliver a controlled substance” conviction from 2003 does not fit the
definition of a controlled substance offense in U.S.S.G. 4B1.2. See ECF No. 105, at 1. Again,
regardless of whether Defendant’s counsel was deficient for failing to raise this argument, this
failure did not prejudice Defendant. The Fourth Circuit has held that the West Virginia felony of
conspiracy to possess with intent to deliver a controlled substance is considered a controlled
substance offense under the United States Sentencing Guidelines. See United States v. Stanback,
726 F. App’x. 961, 962 (4th Cir. 2018) (holding that the defendant’s “conviction in West Virginia
for felony conspiracy to possess a controlled substance with intent to deliver” qualifies as a
2 See ECF No. 49, at 6 (arguing that “Defendants life history is replete with references of drug use,
specifically Prescription medications and Heroin,” that Defendant “has been deterred in his drug use as evidenced by
his sobriety, and he clearly has been rehabilitated from his substance abuse issues and also his life as an addict,” and
that Defendant “is a drug user who supported a habit that was developed when he was a child and the addiction that
has become entrenched as his way of life over the past ten years.”).
3 See ECF No. 49, at 13 (explaining the effects of Defendant’s “relapses.”).
controlled substance offense under the career offender guidelines) (citing United States v. Dozier,
848 F.3d 180, 182-88 (4th Cir. 2017)). Therefore, because the above analysis demonstrates that
Defendant’s sentence would not have been any different regardless of his attorney’s allegedly
deficient arguments or objections, Defendant’s claim of ineffective assistance of counsel at the
sentencing stage must be rejected.
C. Johnson vy. United States Argument
Defendant does not object to the Magistrate Judge’s findings and recommendation as to
Defendant’s claim that the Supreme Court’s decision in Johnson v. United States? entitles him to
relief. See Objections. Thus, the Court adopts this finding.°
IV. CONCLUSION
Based upon the analysis provided above, the Court DENIES Defendant’s objections,
ADOPTS the proposed findings and recommendations of Magistrate Judge Tinsley, DENIES
Defendant’s motions (ECF Nos. 83, 86, 92, 105), and DISMISSES this action for the Court’s
docket
The Court DIRECTS the Clerk to send a copy of this Order to counsel and the defendant,
the Unites States Attorney’s Office, the United States Probation Office, and the United States
Marshals Service.
ENTER: February 28, 2019
: LA,
4. ee
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
4 135 S. Ct. 2551 (2015).
5 The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions
of the magistrate judge as to those portions of the findings or recommendations to which no objections are made.
Thomas vy. Arn, 474 U.S. 140, 150 (1985).
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