UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 
 

UNITED STATES OF AMERICA,

  
  
 

v. Criminal Action No. 10-171-2 (JDB)
Civil Action No. 13—172 (JDB)
 HLED
Defendant.

 
 

OCT 2 8 2W!

Clerk, U.S. District & Bankruptcy

MEMORANDUM OPINION Courts tor the District of Columbia

Rico Thomas was sentenced to twenty-eight—years’ incarceration for conspiracy to
participate in a racketeering organization. Having failed to appeal his sentence, he now seeks to
vacate it, pursuant to 28 U.S.C. § 2255. Because Thomas does not allege any error that puts his
guilty plea in doubt, the Court will deny his motion.

BACKGROUND

Rico Thomas was originally indicted on a slew of racketeering charges, including murder
in aid of racketeering activity, use of interstate commerce facilities in the commission of murder
for hire, and ﬁrst degree murder. Thomas was said to be part ofa narcotics ring in the DC metro
area that achieved its goals, in part, through such violence.

The government eventually ﬁled a superseding information, containing only one count:
conspiracy under the Racketeer Inﬂuenced and Corrupt Organizations Act, in violation of 18
U.S.C. § 1962(d). SE ECF No. 152. Thomas waived the indictment, se_e ECF No. 158, waived

his trial rights, se_e ECF No. 159, and pleaded guilty to that single count, see ECF No. 161. He

 

was sentenced to twenty-eight years’ incarceration and five years’ supervised release. He did not

appeal

Thomas did, however, ﬁle [257] the motion to vacate under 28 U.S.C. § 2255 now before

this Court. The Court declined to appoint counsel, but ordered that Thomas could supplement
his § 2255 motion after receiving transcripts from court proceedings and certain ﬁles from his
former counsel. S63 July 23, 2013 Order [ECF No. 267]. Thomas timely ﬁled [271] his
supplemental memorandum, and ﬁled [274] a motion to amend that pleading a month later.1

M

An initial matter: the government points out—correctly—that § 2255 includes a one-year
statute of limitation. See 28 U.S.C. §2255(f). As Thomas’s judgment became ﬁnal on August
3, 2012, a motion to vacate could be ﬁled no later than August 3, 2013. Thomas ﬁled his § 2255
motion well in advance of that deadline, on February 1, 2013. But he did not ﬁle his
supplemental memorandum until September 23, 2013, or his motion to amend that pleading until
October 28, 2013. Thus, the government argues, only the original motion should be considered;
the others are time—barred.

But the government overlooks a crucial factor: if Thomas ﬁled his supplemental
memorandum late, it was because this Court told him to do so. On July 23, 2013—~nearly six
months after Thomas ﬁled the original motion—the Court ordered him to ﬁle a supplemental
memorandum by September 23, a deadline he met. Thomas can hardly be blamed for relying on
the Court’s instructions, especially without the beneﬁt of counsel. Thus, equitable tolling is
appropriate as to the supplemental memorandum. E Holland v. Florida, 560 US. 631, 645,
649 (2010) (holding that § 2244(d) is subject to equitable tolling where a petitioner shows “(1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way" (internal quotation marks and citation omitted»; United States v. McDade, 699

 

' While these motions were pending, Thomas ﬁled [290] an additional motion asking that all legal actions
be held in abeyance until he was returned to his original place of incarceration. Thomas has since returned to that
penitentiary, & Notice of Change of Address [ECF No. 291], and so his motion will be denied as moot

2

F.3d 499, 500 (DC. Cir. 2012) (applying Holland’s holding to §2255). Thomas has no such

 

safe harbor, however, for any additional claims in his motion to amend the supplemental
memorandum, and so that motion is denied as time-barred.

To obtain relief under §2255, Thomas must show that his “sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). He bears

the burden of proving his claims by a preponderance of the evidence, see United States v.

 

Simpson, 475 F.2d 934, 935 (DC Cir. 1973). and “must clear a significantly higher hurdle than
would exist on direct appeal," United States v. Frady, 456 US. 152, 166 (1982).

When confronted with motions like this, courts will conduct a hearing “[u]nless the
motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief." 28 U.S.C. § 2255(b). But that decision “is committed to the district court’s discretion,”
United States v. Pollard. 959 F.2d 101 l, 1031 (DC. Cir. 1992). Because Thomas’s motion does
not “raise[] detailed and specific factual allegations whose resolution requires information
outside ofthe record,” such a hearing is unnecessary in this case. Li. (internal quotation marks
omitted).

Thomas raises many claims, but they all center around the same idea: that the
ineffectiveness of counsel, in various ways, undermined the voluntary and knowing nature of his
guilty plea—and so he should be permitted to withdraw it. Thomas is no doubt motivated in part
by the fact that, after he entered his plea, one of his co-defendants was acquitted at trial. See

Judgment of Acquittal as to Opio D. Moore. No. lO—cr-l71—JDB-3 [ECF No. 209]. But the

regrets engendered by hindsight do not render invalid a plea that was deemed—by both parties—

a good bargain when the outcome ofthe case was still in doubt. S_e_e Premo v. Moore, 13] S. Ct.
733, 741 (201 l) (cautioning “strict adherence to the Strickland standard . . . when reviewing the
choices an attorney made at the plea bargain stage”). To demonstrate ineffective assistance of
counsel, Thomas must demonstrate both that “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed by the Sixth Amendment,” Strickland v. Washington,

466 US. 668, 687 (1984), and that “there is a reasonable probability that, but for counsel’s

errors. he would not have pleaded guilty and would have insisted on going to trial,” Hill v.

 

Lockhart, 474 US. 52, 59 (1985). But Thomas has yet to identify any error that would constitute
deficient performance.

Some of Thomas’s claims are simply baseless. He complains, for instance, that counsel
failed to tell him that the guilty plea waived his right to bring this § 2255 petition. But counsel
had good reason: the plea agreement specifically preserves that right. S_eg Plea Agreement [ECF
No. 161] at 3. Similarly, Thomas argues that he was not arraigned on his superseding
indictment. But he pleaded guilty to the superseding information, so any procedural defect as to
the indictment is immaterial.

Thomas complains, too, that his counsel coerced him—both to waive his right to a grand
jury and to plead guilty. Thomas suggests that counsel was motivated by a conﬂict of interest,
claiming that Thomas’s guilty plea would aid his co-defendant. But Thomas averred, under oath,
that his plea was not the product of coercion. gag Tr. of Plea Hr’g [ECF No. 268] at ll (right to
indictment), 43 (guilty plea). And Thomas has not adequately alleged a conflict of interest on

the part of counsel, as counsel never represented the co-defendant in these proceedings. &

Sept. 23, 2013 Order [ECF No. 270] at 1—2.

Thomas further argues that this speculative conflict of interest kept his counsel from
thoroughly investigating possible defenses. In particular, Thomas points out that, on the night of
the murder-for—hire that constituted the government’s factual proffer, he met the victim and his
companion at a restaurant. Thomas wanted his attorney to obtain security footage from the
restaurant, and to interview the companion, to corroborate this story. But such evidence, even if
it exists, is hardly exculpatory: it proves only that Thomas saw the victim shortly before he was
murdered. This is not an alibi. lndeed, “[w]hcther these lines of [inquiry] would have yielded
any gains for [Thomas] or only highlighted damning evidence is a matter of speculation and

precisely the sort of post hoc judgment that Strickland admonishes us to avoid.” United States v.

Toms, 396 F.3d 427, 433 (DC. Cir. 2005).2

 

Finally, Thomas suggests that his counsel was ineffective in failing to discuss discovery
and in failing to explain one of the elements of the crime to which he eventually pleaded guilty.
(One element of the crime cross-references another part of the statute—which, in turn, simply
criminalizes racketeering activity. SE 18 U.S.C. § 1962(c).) But again, prior proceedings tell a
different story. At his plea hearing, Thomas expressed satisfaction with his lawyer, see Tr. of
Plea Hr’g at 8, admitted to the actions in the government’s factual proffer, $5; ii at 31, certified

that there was nothing he did not understand about the proceeding or the plea, see id, at 43, and

 

pleaded guilty "voluntarily and of [his] own free will” and “because [he is] guilty and for no
other reason," i_d_. at 45. Nothing in the pleadings currently before the Court casts doubt on the

veracity of those statements. See United States v. Grewal, 825 F.2d 220, 223 (9th Cir. 1987)

(“[A]ny claim of ineffective assistance of counsel is contradicted by [movant‘s] own declarations

 

3 Thomas also points to a letter written by Antonio Harper, a cooperating witness. Thomas argues that the
letter proves that Harper provided false testimony to get a good deal. But*at most—the letter merely outlines
Harper’s difficult decision as to whether he should cooperate with the government; it never even hints at fabrication.
§e_e Ex. B to Pet’r‘s Reply [ECF No. 289-l].

made under oath and on the record. . . . These declarations concerning the performance of [his]
counsel were made in open court under oath and thus carry a strong presumption of verity.”)
And Thomas does not point to any evidence that came to light after the plea proceedings. In
short, Thomas has provided no ground for this Court to unsettle its prior rulings or to question
the legitimacy ofthe plea proceedings.
CONCLUSION
For the reasons set forth above, [257] Thomas’s motion to vacate is denied. A separate

order accompanies this memorandum.

/s/
JOHN D. BATES
United States District Judge

Dated: October 28 20l4

 

