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Thomas v. Ortiz

United States District Court, D. New Jersey

March 21, 2019

SHAWN THOMAS, Petitioner,
v.
WARDEN DAVID ORTIZ, Respondent.

          Shawn Thomas, Petitioner pro se

          Craig Carpenito, United States Attorney Mark E. Coyne, Chief, Appeals Division Attorneys for Respondent David Ortiz

          K.T. Newton, AUSA United States Attorney's Office for the Eastern District of Pennsylvania Of Counsel

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner Shawn Thomas, a/k/a/ Malik Brown, a convicted and sentenced federal prisoner previously confined at FCI Fort Dix, New Jersey, [1] filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 asserting that he is actually innocent of his conviction for the use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). [Docket Entry 3]. He bases his argument on the Supreme Court's decision in Rosemond v. United States, 572 U.S. 65 (2014). As relief, Petitioner requests that his § 924(c) conviction be vacated. Respondent David Ortiz opposes the petition. [Docket Entry 8].

         The principal issues to be decided are: (1) whether the Court has jurisdiction under 28 U.S.C. § 2241 to consider Petitioner's challenge to the validity of his conviction; and (2) if so, whether the Supreme Court's Rosemond decision requires this Court to vacate Petitioner's conviction under § 924(c) because the Government failed to prove at trial that he had advance knowledge that a firearm would be used in connection with his drug trafficking offense.

         The Court concludes that Petitioner is unable to invoke the savings clause of 28 U.S.C. § 2255(e), but even if he could, the Rosemond foreseeability standard does not impact his § 924(c) conviction because he was not convicted under an aiding and abetting theory of guilt but rather as the principal who possessed the firearm in furtherance of the drug distribution crime. Therefore, the Court will deny the petition for the reasons stated below.

         II. BACKGROUND

         In January 2010, an Eastern District of Pennsylvania grand jury issued a superseding indictment charging Petitioner with: conspiracy to distribute and possess with intent to distribute cocaine base, 21 U.S.C. § 846 (Count One); distribution of five grams or more of cocaine base (Count Two), 21 U.S.C. § 841(a)(1) and (b)(1)(B); distribution of five grams or more of cocaine base within 1, 000 feet of a school, 21 U.S.C. § 860(a) (Count Three); distribution of 50 grams or more of cocaine base, 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Counts Four & Five); possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Six); possession of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c) (Count Seven); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Eight). [Docket Entry 8 at 20-29; see also United States v. Shawn Thomas, No. 08-cr-558 (E.D. Pa. Mar. 25, 2011)]. The superseding indictment specifically alleged as part of the manner and means that “[o]n occasion, when defendant SHAWN THOMAS sold crack cocaine to a customer, he carried and possessed a firearm.” [Docket Entry 8 at 21]. The jury convicted Petitioner on all counts after a bifurcated trial separating the felon in possession charge, Count Eight, from the rest of charges. [Id. at 3].

         Petitioner filed a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, and alternatively for a new trial under Rule 33, on May 17, 2010. [Motion for Judgment of Acquittal, Thomas, No. 08-cr-558 (May 17, 2010) Docket Entry 92]. He argued that the United States had failed to prove that he had possessed a firearm. [Docket Entry 8 at 31]. The Honorable Gene E.K. Pratter, U.S.D.J., denied the motion on December 22, 2010. [Docket Entry 8 at 31-36]. See also United States v. Thomas, No. 08-558, 2010 WL 5256862 (E.D. Pa. Dec. 23, 2010). Petitioner was sentenced to a 180-month term with a mandatory 60-month consecutive term for the § 924(c) charge. [Docket Entry 8 at 5]. The sentencing court also imposed a five-year supervised release term. [Id.]. Petitioner challenged his § 924(c) conviction again on direct appeal in the United States Court of Appeals for the Third Circuit. United States v. Thomas, 456 Fed.Appx. 85 (3d Cir. 2011). The circuit court affirmed Petitioner's conviction but remanded for resentencing under the Fair Sentencing Act of 2010. Id. at 88.

         Petitioner filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255 in the Eastern District of Pennsylvania on February 19, 2013. [Docket Entry 8 at 17; First Motion to Vacate/Set Aside/Correct Sentence, Thomas, No. 08-cr-558 (Feb. 19, 2013) Docket Entry 142]. The § 2255 motion also challenged his conviction under § 924(c). [Docket Entry 8 at 6]. Judge Pratter denied the § 2255 motion. [Order Denying First Motion to Vacate/Set Aside/Correct Sentence, Thomas, No. 08-cr-558 (May 14, 2013) Docket Entry 150]. The Third Circuit denied a certificate of appealability, stating “Appellant previously, and unsuccessfully, argued that there was insufficient evidence to support his conviction of possession of a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c), and is not entitled to relitigate this matter.” United States v. Thomas, No. 13-2674 (3d Cir. Sept. 26, 2013).[2]

         After the Supreme Court issued its decision in Rosemond on March 5, 2014, Petitioner filed an application for permission to file a second or successive § 2255 motion. In re: Shawn Thomas, No. 16-1783 (3d Cir. filed Apr. 4, 2016); [Docket Entry 3 ¶ 10(b)]. The Third Circuit concluded that the Supreme Court had not made Rosemond retroactive to cases on collateral review and denied permission under 28 U.S.C. §§ 2244(b) & 2255(h). Order, In re: Shawn Thomas, No. 16-1783 (3d Cir. Apr. 20, 2016).

         Petitioner subsequently filed this habeas corpus petition under 28 U.S.C. § 2241 on September 23, 2016.[3] [Docket Entry 1]. The Court administratively terminated it as Petitioner had not used the proper form. [Docket Entry 2]. The Court reopened the case after Petitioner submitted an amended petition on the appropriate form. [Docket Entry 3]. The Court ordered Respondent to answer. [Docket Entry ...


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