The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10951 ELEVENTH CIRCUIT
MARCH 12, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 07-00915-CV-D-E, 92-00162-CR
MARVIN C. THOMPSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(March 12, 2010)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Marvin C. Thompson appeals pro se the denial of his motion to vacate, set
aside, or correct the sentence of 46 months of imprisonment imposed after
revocation of his supervised release. 28 U.S.C. § 2255. We granted a certificate of
appealability to address whether Thompson was served with a copy of the report
and recommendation that the district court deny Thompson’s motion to vacate and
whether “the district court erred by relying on affidavits presented by the
government, which contradicted the arguments and affidavits presented by
Thompson.” We affirm.
I. BACKGROUND
We divide our discussion of the background into two parts. First, we discuss
Thompson’s conviction and the revocation of supervised probation that resulted in
the sentence Thompson now challenges. Second, we discuss Thompson’s motion
to vacate his sentence and the decision of the district court.
A. Thompson’s Conviction and Revocation of His Supervised Probation
In 1993, Thompson pleaded guilty to conspiracy to distribute cocaine base,
21 U.S.C. § 846, and he was sentenced to 137 months of imprisonment and five
years of supervised release. In 2005, the government filed a petition to revoke
Thompson’s supervised release. The government alleged that on November 17,
2005, Thompson had been arrested for obstructing a governmental operation and
possessing cocaine base and Thompson had possessed a firearm.
2
At the revocation hearing, the government introduced testimony from the
arresting officer, Steven Woods of the Lanette Police Department, and Thompson’s
probation officer, James Chappell. Woods testified that he stopped to investigate
after he observed that Thompson’s vehicle was parked illegally near an intersection
in a “high drug crime area”; Thompson was talking to Ernest Lyman, who Woods
knew abused cocaine base; and Lyman was holding money in his hand. Woods
testified that he arrested Lyman after discovering a crack pipe in his hat.
Woods proceeded to Thompson’s car to investigate further. Woods testified
that he arrested Thompson for obstructing a governmental operation because
Thompson interfered with Woods’s instructions to Thompson’s girlfriend to exit
the passenger seat of Thompson’s car. Woods also testified that he inventoried
Thompson’s car and discovered on the driver’s seat a black fanny pack that
contained cocaine base and a loaded nine millimeter pistol. Chappell testified that
Thompson had said the pack was owned by one of his daughter’s friends or a
person hired to assist Thompson’s mother.
Thompson denied any wrongdoing, and he argued through counsel that
someone else owned the fanny pack and he had been targeted by Woods. After the
government rested its case, defense counsel argued that the “single person who was
closest to [the fanny pack] and had the greatest opportunity to exercise control and
3
dominion over that bag” was Thompson’s girlfriend and Thompson “did not
knowingly . . . allow that fanny pack to be in that car.” Defense counsel also
argued that “if someone got into [Thompson’s] car with a black fanny pack, i.e.,
his passenger, there’s absolutely no evidence that he would have necessarily asked
what was in the bag or inspected the bag.” Defense counsel called Lyman as a
witness. Lyman testified that Thompson had loaned him money, Thompson had
stood still when Woods ordered Thompson’s girlfriend out of the car, and Woods
later charged Lyman for buying a controlled substance because he had been
disruptive at the police station.
Thompson testified that he had been stopped by Woods on three occasions
and ticketed for traffic offenses he had not committed. Thompson did not deny
that the fanny pack had been discovered in his car. Thompson testified that he did
not own or know about the bag and he had allowed his daughter and a friend to
drive his car earlier that day. Thompson admitted that he had advised his girlfriend
to remain in the car, but Thompson denied that he had interfered physically with
Woods’s investigation.
The district court found that Thompson had obstructed a government
operation and he had possessed cocaine base and a firearm. The district court
revoked Thompson’s supervised release and sentenced him to 46 months of
4
imprisonment and one year of supervised release. This Court affirmed and held
that the district court did not abuse its discretion by revoking Thompson’s
supervised release because the “evidence established that, more likely than not,
Thompson constructively possessed the contraband,” and the district court did not
clearly err in crediting Woods’s testimony notwithstanding evidence from
Thompson that “Woods’s testimony was incredible and biased.” United States v.
Thompson, No. 06-12309, slip op. at 1 (11th Cir. Dec. 13, 2006).
B. Thompson’s Post-Revocation Proceedings
In October 2007, Thompson filed a motion to vacate his sentence. 28 U.S.C.
§ 2255. Thompson argued that his attorney acted ineffectively at the revocation
hearing for, among other reasons, failing to present testimony from Thompson’s
girlfriend, Sylvia Banks. Thompson attached to his motion an affidavit signed by
Banks that appeared to have been prepared on the same typewriter as the brief in
support of Thompson’s motion to vacate. Banks attested that Thompson did not
interfere physically with Woods’s investigation and Thompson did not have “a bag
with him[] when he got into the car, nor did he leave a bag on his seat when he got
out of the car.” Thompson also argued that he was entitled to relief on the ground
he had newly discovered evidence that Woods had planted the fanny pack in his
car. In support of his argument, Thompson attached to his motion a newspaper
5
report that Woods had been investigated and fired for abusing his authority.
The government responded that Thompson’s attorney, Donnie Bethel, was
not ineffective. The government argued that Bethel was not required to call Banks
as a witness because her testimony did not conflict with Woods’s testimony about
the fanny pack and her testimony would have been perjured. The government
referenced an affidavit filed by Bethel explaining that he made a strategic decision
not to have Banks testify. Bethel attested that he had interviewed Banks and she
had said there was a black fanny pack on Thompson’s seat. Bethel also attested
that he chose not to call Banks as a witness for two reasons: Bethel believed
Banks’s testimony about the pack would damage Thompson’s defense, and Bethel
had “concluded beyond doubt” that Thompson had instructed Banks to lie and
claim ownership of the pack.
Thompson filed two typewritten “rebuttal affidavits” that were signed by his
sister, Barbara Thompson, and Banks. Barbara Thompson attested that she rode
with Thompson to his revocation hearing and observed Thompson receive a
telephone call from Bethel; Bethel told Thompson “not to bring Ms. Banks to the
courthouse”; and Thompson “was clearly upset and . . . surprise[d] that Mr. Bethel
did not intend to let Ms. Banks testify.” Banks attested that she “[n]ever stated” to
Bethel that “there was a bag on the seat of . . . Thompson’s vehicle at the time of
6
his arrest”; Thompson had not “attempted to persuade her to claim ownership of
the bag”; Bethel had told Banks that she would testify at Thompson’s revocation
hearing; and Banks overheard Thompson disagree with Bethel’s plan to “present
[Banks] as an alibi owner of the [fanny pack].”
A magistrate judge recommended that the district court deny Thompson’s
motion to vacate his sentence. The magistrate judge found that Bethel was not
ineffective for failing to call Banks as a witness when Bethel believed Banks
would testify falsely. The magistrate judge ruled that Thompson’s argument that
Woods planted evidence in his car was not newly discovered and, “[t]o the extent
that Thompson [argued] that his counsel was ineffective for failing to pursue a
‘planted evidence’ defense,” the argument “lack[ed] merit.” The magistrate judge
found that Bethel’s “affidavit and other aspects of the record” established that
Thompson “never disputed that there was a fanny pack in his car before he was
approached by [the] police” and that “counsel had no reasonable basis for pursuing
such a defense at the time of the revocation hearing.” After “an independent
review of the file,” on February 4, 2009, the district court denied summarily
Thompson’s motion to vacate.
Thompson filed a notice of appeal that challenged the denial of his motion to
vacate. In the notice, Thompson argued that he never received a copy of the
7
recommendation of the magistrate judge and he referenced a notice he had filed
that, effective February 4, 2009, he should be served at an address in Atlanta,
Georgia. The notice was dated February 2, 2009, and was received by the clerk of
the district court on February 4, 2009. The district court treated Thompson’s
notice of appeal as a motion for a certificate of appealability and denied the
motion.
II. STANDARDS OF REVIEW
On denial of a motion to vacate a sentence, we review findings of fact for
clear error and the application of law to those facts de novo. Mamone v. United
States, 559 F.3d 1209, 1210 (11th Cir. 2009).
III. DISCUSSION
Thompson challenges the ruling of the district court on two grounds. First,
Thompson argues that his right to due process was violated because the district
court failed to provide notice of the report and recommendation at the Federal
Prison Camp in Atlanta, Georgia. Second, Thompson argues that he was entitled
to an evidentiary hearing to resolve inconsistencies in the affidavits filed by his
girlfriend, Banks, and attorney Bethel. These arguments fail.
The district court did not violate Thompson’s right to due process. To
satisfy the Due Process Clause, “notice must be ‘reasonably calculated, under all
8
the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.’” Arrington v. Helms, 438
F.3d 1349–50 (11th Cir. 2006) (quoting Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)). The clerk complied with the
requirements of due process by providing Thompson notice in compliance with the
Federal Rules of Civil Procedure. Under those rules, the clerk must “promptly
mail a copy” of a report and recommendation, Fed. R. Civ. P. 72(b)(1), to a party’s
“last known address,” id. 5(b)(2)(C).
The record establishes that the clerk mailed Thompson a copy of the report
and recommendation to his official address of record at the Federal Correctional
Institution in Yazoo City, Mississippi. Thompson had listed the Yazoo City
address on his complaint and on the next eleven documents that he filed in the
district court between November 2007 and May 2008. Although Thompson argues
that the clerk was required to mail a copy of the report and recommendation to the
Federal Prison Camp address that Thompson had listed on his petition for a writ of
mandamus that he filed in October 2008, Thompson continued to receive actual
notice at the Yazoo City address. The record establishes that the clerk served
Thompson at the Yazoo City address notice that his petition had been denied, and
Thompson appealed that decision. The district court provided Thompson sufficient
9
notice. See Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632
(11th Cir. 1988).
The district court also did not abuse its discretion by denying Thompson’s
motion to vacate without an evidentiary hearing. The district court was entitled to
rely on the information it acquired during Thompson’s revocation hearing to
resolve the inconsistencies in the affidavits of Thompson’s attorney, Bethel, and
Thompson’s girlfriend, Banks. See United States v. Schlei, 122 F.3d 944, 994
(11th Cir. 1997) (“‘[T]he acumen gained by a trial judge over the course of the
proceedings [makes him] well qualified to rule on the basis of affidavits without a
hearing.’” (quoting United States v. Hamilton, 559 F.2d 1370, 1373–74 (5th Cir.
1977)). The district court was entitled to regard with suspicion Thompson’s
argument that his counsel had suppressed exculpatory testimony from Banks that
Woods planted the fanny pack in Thompson’s vehicle because Thompson had
testified at the revocation hearing and had not disavowed that a fanny pack
containing cocaine base and a firearm had been discovered in his vehicle. The
testimonies of officers, Lyman, and Thompson about the fanny pack, coupled with
the suspect nature of Banks’s affidavits, provided the district court ample reason to
deny Thompson an evidentiary hearing. See Holmes v. United States, 876 F.2d
1545, 1553 (11th Cir. 1989) (“A hearing is not required on patently frivolous
10
claims or . . . . where the petitioner’s allegations are affirmatively contradicted by
the record.”).
The district court also did not err by denying Thompson’s motion to vacate
his sentence. Thompson failed to prove that Bethel made a professional error.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The
district court credited Bethel’s statement that he believed Banks would give false
testimony, and we find no clear error in that finding of fact. Bethel’s statement is
consistent with statements in the affidavits of Banks and Barbara Thompson that
Bethel ordered Thompson not to bring Banks to the courthouse. Bethel was not
ineffective because the duty to present a defense does not require that an attorney
suborn perjury. See Putman v. Head, 268 F.3d 1223, 1246 (11th Cir. 2001)
(“Although an attorney has an ethical duty to advance the interest of her client, that
duty is limited by an equally solemn duty to comply with the law and standards of
professional conduct.”) (internal quotation marks and alteration omitted); Davis v.
Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997) (“The duty to render effective
assistance of counsel does not include the duty to present false or misleading
testimony.”). Bethel also was entitled to choose deliberately not to call Banks as a
witness and instead argue that she owned the fanny pack, and we will not second
guess Bethel’s strategic decision. See Chandler v. United States, 218 F.3d 1305,
11
1314 (11th Cir. 2000) (en banc).
IV. CONCLUSION
The denial of Thompson’s motion to vacate his sentence is AFFIRMED.
12