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Thompson v. United States

United States District Court, D. New Jersey

March 23, 2015

EVERT JEROME THOMPSON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

OPINION

FREDA L. WOLFSON, District Judge.

This matter is presently before the Court on a Petition to Vacate, Set Aside or Correct Sentence ("Petition") filed by pro se Petitioner Evert Jerome Thompson ("Petitioner") pursuant to 28 U.S.C. § 2255, challenging his 150-month sentence imposed for armed robbery and a related weapons offense. Pursuant to Fed.R.Civ.P. 78, upon review of all submissions, this matter is decided without oral argument, and for the reasons stated below, the Court dismisses the Petition with prejudice and denies a certificate of appealability.

I. FACTUAL BACKGROUND

The Court recounts only the factual background relevant to Petitioner's petition for relief. Petitioner is a federal prisoner currently incarcerated at United States Penitentiary, Atlanta, Georgia. Petitioner was tried before a jury by the Honorable Joel A. Pisano, U.S.D.J., and was found guilty of armed robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d), as well as using and/or carrying a firearm during a crime of violence as proscribed by 18 U.S.C. § 924(c)(1)(A)(ii).[1]

The relevant facts surrounding Petitioner's crimes are succinctly stated in the Third Circuit's decision denying Petitioner's direct appeal:

On September 9, 2008, two persons robbed a Bank of America located in Iselin, New Jersey, with a Colt.357 revolver. After fleeing the bank in a stolen black BMW, the two men abandoned the car and entered into a tan Chevrolet Astro minivan. Unbeknownst to the robbers, one of the stolen sacks of money contained a GPS tracking device. The GPS device permitted police officers to monitor the stolen money's latitude, longitude, direction, and speed.[2]
Relying upon transmissions from the GPS device, Detectives Mark Zeno, Michael Ng, and Walter Bukowski of the Woodbridge Township Police Department drove in an unmarked car to an intersection where they expected to intercept the black BMW. Rather than seeing a black BMW, the detectives observed a tan Astro minivan traveling the same coordinates as those provided by the GPS system. Consequently, the detectives proceeded to follow the minivan. Sergeant Christian Ladaudio of the Woodland Township Police Department's Special Investigations Unit also responded in an unmarked black pickup truck. The minivan, realizing that it was being followed, accelerated to high speeds, triggering the detectives in the unmarked car to activate its emergency lights. A high speed chase ensued and concluded with a collision between the minivan and another vehicle.
The driver exited the damaged minivan and fled the scene on foot. Sergeant Ladaudio pursued the driver with his vehicle. When the fleeing suspect jumped a guardrail, Ladaudio took up the chase on foot. Detective Ng also pursued the suspect on foot. Sergeant Ladaudio tackled the driver, who turned out to be Thompson, and Ng assisted in putting on the handcuffs and effectuating the arrest. Meanwhile, back at the scene of the accident, the passenger in the minivan, Sharron Graham, was arrested. Inside the minivan, police officers recovered a white plastic bag containing $31, 007.98 in cash-the exact amount stolen from the bank. Also, police officers found attire that was worn at the robbery, a loaded Colt.357, a Radio Shack police scanner, the car key to the BMW, and the GPS tracking device.
After Graham pleaded guilty to the armed bank robbery, a superseding indictment was returned against Thompson, charging him with armed bank robbery and using and/or carrying a firearm during a crime of violence. Prior to trial, Petitioner moved to suppress evidence gathered as a result of his arrest and search of the minivan. The motion was denied without a hearing. After a three-day jury trial, Thompson was found guilty on both counts A jury found Petitioner guilty of both armed robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d), as well as using and/or carrying a firearm during a crime of violence as proscribed by 18 U.S.C. § 924(c)(1)(A)(ii).

U.S. v. Thompson, 393 Fed.App'x. 852, 854 (3d Cir. Sept. 13, 2010).

Although the government admittedly had no eyewitnesses placing Petitioner in the bank or in the original getaway car, it offered expert testimony at trial that identified Petitioner as the source of DNA recovered from items worn by one of the robbers, including a hat and mask. (Crim. No. 08-674, No. 58, Trial Test. of Nicole Nicklow, 335:1-368:25). The government also presented evidence that the shoes worn by Petitioner at the time of his arrest corresponded to the design, size, and condition of the footprint impressions lifted from the bank counter, though the expert could not conclusively determine that Petitioner's shoe made the print on the counter. (Id. at No. 57, Trial Test. of Michael Scimeca, 253:1-268:12; Trial Test. Michael Smith, 269:1-298:24.) [3]

At sentencing on October 21, 2009, Petitioner's counsel argued for downward departures based on U.S.S.G. 5H1.5, employment record, and U.S.S.G. 5H.6, family ties and responsibilities. (Oct. 21, 2009 Sen. Tr. 21:20-24:19.) Counsel additionally argued for the Court to impose the statutory minimum, primarily emphasizing the same factors, i.e., his steady employment and family ties and responsibilities, as well as his lack of any prior criminal record. (Id. at 25:9-27:16.) The Court rejected counsel's arguments for specific downward departures, and in assessing the §3553(a) factors the Court noted the following:

By the way, I have been doing this for a long time and I have been around criminal cases for a lot longer than that and I tell you, I have never seen more evidence against a defendant in any case than what I saw in this case. I have never seen more overwhelming evidence of guilt than what was presented in this matter....

Id. at 32:14-19. The Court then imposed a mid-range term of 66 months on the first count and the mandatory minimum sentence of 84 months on the second count, ...


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