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Don Thomas v. Eric Holder

March 31, 2011

DON THOMAS,
PETITIONER,
v.
ERIC HOLDER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. Noel L. Hillman

NOT FOR PUBLICATION

OPINION

HILLMAN, District Judge

Don Thomas filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging a federal sentence imposed on October 30, 2009, in the United States District Court for the District of Maryland. For the reasons set forth below, this Court will dismiss the Petition for lack of jurisdiction.

I. BACKGROUND

On May 11, 2004, a federal grand jury sitting in the District of Maryland returned an indictment charging Petitioner with narcotics offenses. See United States v. Thomas, Crim. No. 04-0250 memorandum opinion at pp. 1-2 (D. Md. Oct. 30, 2009). A superseding indictment charged Petitioner with conspiracy to distribute cocaine, possession with intent to distribute cocaine and marijuana, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm. Id. On March 8, 2005, United States District Judge Benson Everett Legg denied Petitioner's motion to suppress evidence.

Id. at p. 2. On April 4, 2005, Petitioner pled guilty, pursuant to a plea agreement, to conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and possession of a firearm in furtherance of a drug trafficking crime. Id. On the day Petitioner appeared for sentencing, he argued that the court lacked jurisdiction over him because he never consented to be governed by the laws of the United States and that no attorney could ethically represent him because the oath to uphold the laws of the United States created a conflict of interest. Id. After ordering and reviewing two competency evaluations and determining that Petitioner would not be permitted to withdraw the plea, on May 19, 2006, Judge Legg sentenced Petitioner to an aggregate 300-month term of imprisonment. Id. at p. 3. The judgment of conviction was filed on May 24, 2006. Id. at docket entry #100.

On May 23, 2007, Petitioner filed a motion to vacate, set aside or correct the sentence, pursuant to 28 U.S.C. § 2255, arguing in part that his attorney was ineffective for failing to file a notice of appeal after promising on the record to do so.

Id. at docket entry #105. Petitioner filed an amended § 2255 motion on August 13, 2008, and a motion for an evidentiary hearing on September 16, 2009. Id. at docket entry nos. 114, 125. By order filed October 30, 2009, Judge Legge denied the motion for an evidentiary hearing, denied the amended § 2255 motion, dismissed the § 2255 motion, vacated the judgment of conviction, and appointed CJA counsel for Petitioner for the purpose of filing a direct appeal. Id. at docket entry #129. In the memorandum opinion accompanying the order, Judge Legge noted:

(1) although Petitioner pled guilty, he reserved his right to appeal the denial of his motion to suppress; (2) on the record at the conclusion of sentencing, standby counsel expressly agreed to file a notice of appeal on Petitioner's behalf; and (3) no notice of appeal was filed. On October 30, 2009, Judge Legg filed an amended judgment of conviction and Petitioner filed a notice appealing the judgment. Crim. No. 04-0250 at docket entry nos. 131, 133. On March 4, 2011, the Fourth Circuit affirmed the amended criminal judgment. See United States v. Thomas, C.A. No. 09-5032 opinion (4th Cir. Mar. 4, 2011).

On December 2, 2009, Petitioner filed his first § 2241 petition in this Court challenging the aforesaid conviction and sentence. Petitioner presented the following argument:

Petitioner is being detained without lawful authority done thru deception and trick[ery] employed by illegal court proceedings. Petitioner retains the liberty and right to meet the accuser(s), and to answer for any physical injury and/or damage as against the accusing party(s) who initiated any "criminal complaint(s), supported by a sworn affidavit." To this date, no such evidence has been entered into the case file or records, nor has Petitioner met any alleged accuser(s).

Upon an investigation and verified information. The facts re, Prosecutors and defense attorneys are without an Oath of Office on file with the Secretary of State of Maryland, for Respondents' affirming to protect or defend the United States Constitutional guarantee and protections. Defense attorneys failed to give notice or file appeals on Petitioner's. (Docket entry #1 at p. 4.)

By Opinion and Order entered January 13, 2010, this Court denied the petition under ยง 2241 without prejudice because the appeal from the order ...


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