United States District Court, D. New Jersey
Thomas, Petitioner pro se
Carpenito, United States Attorney Mark E. Coyne, Chief,
Appeals Division Attorneys for Respondent David Ortiz
Newton, AUSA United States Attorney's Office for the
Eastern District of Pennsylvania Of Counsel
B. SIMANDLE U.S. DISTRICT JUDGE.
Shawn Thomas, a/k/a/ Malik Brown, a convicted and sentenced
federal prisoner previously confined at FCI Fort Dix, New
Jersey,  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
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.
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.
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].
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.
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).
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).
subsequently filed this habeas corpus petition under 28
U.S.C. § 2241 on September 23, 2016. [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 ...