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Thompson v. United States

United States District Court, D. South Dakota, Southern Division

July 23, 2019

JAMES JOSEPH THOMPSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING MOTION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Movant, James Joseph Thompson, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1.[1] The government now moves to dismiss the petition for failure to state a claim, or in the alternative, because this court does not have subject matter jurisdiction over movant's motion for § 2255 relief. Docket 10. The matter was referred to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(A) and (B) and this court's October 16, 2014 standing order. Magistrate Judge Duffy recommends that Thompson's motion be dismissed. Docket 16. Thompson objected timely to the report and recommendation. Docket 20. For the following reasons, the court adopts Magistrate Judge Duffy's report and recommendation, and dismisses Thompson's motion.

         FACTUAL BACKGROUND

         A full factual background was provided by the magistrate judge in her report and recommendation. Docket 16. Thus, this court will only give a simple explanation and points to the magistrate judge's report and recommendation for the full background.

         A jury found Thompson guilty of possession with intent to distribute methamphetamine. Cr. Docket 154. The district court sentenced Thompson to 150 months imprisonment. Cr. Docket 167. Thompson was represented by a succession of court-appointed lawyers, one of whom moved to suppress on Thompson's behalf, before the court granted Thompson's request to represent himself at trial and sentencing. Cr. Dockets 78, 147. The court appointed attorney James Eirinberg as stand-by counsel to Thompson for trial and sentencing. Cr. Docket 147. Thompson appealed, and the Eighth Circuit Court of Appeals affirmed his conviction. See United States v. Thompson, 881 F.3d 629, 630 (8th Cir. 2018). Eirinberg represented Thompson during his appeal, although Thompson also filed his own pro se brief raising issues in addition to those raised by his counsel. Cr. Docket 169.

         On June 5, 2018, Thompson filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1. First, Thompson alleged venue was improper, because the charge should have been prosecuted in Minnesota. Id. at 1. Second, Thompson alleged the jury may not have been unanimous because of the venue issue. Id. at 2. Thompson argued some jurors may have found him guilty for the 19 grams of methamphetamine found in South Dakota only, while other jurors may have found him guilty for the 115 grams of methamphetamine found in Minnesota only, with an absence of 12 jurors voting to convict for either drug stash. Id. Lastly, Thompson alleged the district court improperly considered the 115 grams of methamphetamine found in Minnesota when sentencing Thompson. Id.

         STANDARD OF REVIEW

         The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). In conducting its de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         DISCUSSION

         1. Improper Venue

         Thompson's first claim alleges improper venue under Article III, Section 2, Clause 3 of the United States Constitution, the Sixth Amendment of the United States Constitution, and Rule 18 of the Federal Rules of Criminal Procedure. Docket 1. Thompson claims this court was without jurisdiction to impose his sentence. Docket 20 at 3. Thompson argues he never possessed the 115 grams of methamphetamine in South Dakota and, thus, should not have been prosecuted for possession with intent to distribute methamphetamine in the district of South Dakota and elsewhere. Docket 2 at 5. Thompson raised the improper venue argument during his original trial and before the Eighth Circuit on his direct appeal. See 8th Cir. Docket 16-4091, Pro Se Brief (April 14, 2017); Thompson, 881 F.3d at 630; Docket 16 at 7; Docket 12 at 3. The Eighth Circuit affirmed the district court in all respects. Thompson, 881 F.3d at 630.

         With few exceptions, “§ 2255 may not be used to relitigate matters decided on direct appeal.” Sun Bear v. United States, 644 F.3d 700, 702 (8th Cir. 2011) (citing Davis v. United States, 417 U.S. 333, 346-47 (1974)); see also United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Issues may be relitigated in a § 2255 motion if the alleged error constitutes “ ‘a fundamental defect which inherently results in a complete miscarriage of justice,' ” or where the petitioner presents convincing new evidence of actual innocence. Davis, 417 U.S. at 346-47 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); see also Sun Bear, 644 F.3d at 704; Wiley, 245 F.3d at 752 (citing Weeks v. Bowersox, 119 F.3d 1342, 1350-51 (8th Cir. 1997) (en banc)).

         Thompson alleges his first claim can be relitigated in his § 2255 motion because his sentence constitutes “ ‘a fundamental defect which inherently results in a complete miscarriage of justice.' ” Davis, 417 U.S. at 346-47 (quoting Hill, 368 U.S. at 428). Thompson claims that his sentence was imposed in violation of the Constitution or the laws of the United States and that the court was without jurisdiction to impose Thompson's sentence. Docket 20 at 3. Article III, Section 2, Clause 3 of the United States Constitution states, “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed.” The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to . . . an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI. Rule 18 of the Federal Rules of Criminal Procedure states, “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed. R. Crim. P. 18.

         Magistrate Judge Duffy found Thompson is not entitled to § 2255 relief on his first claim because he raised the argument on direct appeal and his argument is substantively wrong. Docket 16 at 12. Thompson raised the improper venue argument in his pro se supplemental argument before the Eighth Circuit. Thompson acknowledged he raised the venue issue on appeal. see Docket 2 at 4, 7; Docket 20 at 2, 3; see also 8th Cir. Docket 16-4091, Pro Se Brief (April 14, 2017) at 34-35; Thompson, 881 F.3d at 630. The Eighth Circuit considered the claim on its merits but did not grant any relief. Thompson, 881 F.3d at 633. Thus, Thompson cannot relitigate the venue issue unless he can show “a fundamental defect which inherently results in a complete miscarriage of justice, ” or convincing new evidence of actual innocence. Davis, 417 U.S. at 346-47 (quoting Hill, 368 U.S. at 428); see also Sun Bear, 644 F.3d at 704; Wiley, 245 F.3d at 752; Weeks, 119 F.3d at 1350- 51. Magistrate Judge Duffy found that Thompson did not show either a fundamental defect or actual innocence. Docket 16 at 12.

         First, Thompson never asserts his innocence and the evidence presented at trial would make it difficult for him to claim innocence. Nineteen grams of methamphetamine were found in Thompson's residence in South Dakota and 115 grams of methamphetamine were found in Thompson's storage unit in Minnesota. Cr. Docket 180 at 214-16. In jail, Thompson described to James Ivy the process of mailing methamphetamine to himself from Arizona to various hotels in Minneapolis, Chicago, and Omaha. Cr. Docket 180 at 109-111; see also Docket 16 at 12. The contents of Thompson's cell phones and his storage shed showed numerous mailing labels for packages addressed to Thompson at hotels in the described cities and originating from Phoenix, Arizona. Cr. Docket 180 at 95-96, 135, 138-39, 205, 242-44; see also Docket 16 at 12. After his sentencing and direct ...


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