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Thomas v. United States

United States District Court, D. Connecticut

April 26, 2017

NEGUS THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING ON PETITION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          ALVIN W. THOMPSON, UNITED STATES DISTRICT JUDGE

         Petitioner Negus Thomas, proceeding pro se, filed a Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, Correct Sentence by a Person in Federal Custody (the “Petition”) (Doc. No. 1) in which he set forth two claims for relief. His first ground for relief (“Claim One”) is that he was never arraigned on the initial indictment and therefore the court lacked jurisdiction to try him on the charges contained in the Superseding Indictment. His second ground for relief (“Claim Two”) is that his conviction should be vacated because of prosecutorial vindictiveness. On July 18, 2016 the petitioner moved for leave to supplement the Petition, and the court granted that motion. The petitioner set forth three additional grounds for relief in his Motion for Leave to Supplement 2255 (“the Supplemental Petition”) (Doc. No. 10). The petitioner's third ground for relief (“Claim Three”) is that there was insufficient evidence to convict him on the narcotics conspiracy charged in Count One of the Superseding Indictment. His fourth ground for relief (“Claim Four”) is that the government constructively amended the indictment in its closing argument. Finally, the petitioner's fifth ground for relief (“Claim Five”) is that he is entitled to a two-level reduction in determining his total offense level under the Sentencing Guidelines, pursuant to 18 U.S.C. § 3582(c)(2).

         For the reasons set forth below, his petition, as amended, is being denied without a hearing.

         I. LEGAL STANDARD

         A “collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (internal citation and quotation marks omitted). Section 2255 provides that a district court should grant 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). However, “[t]he language of the statute does not strip the district courts of all discretion to exercise their common sense.” Machibroda v. United States, 368 U.S. 487, 495 (1962). In making its determination regarding the necessity for a hearing, a district court may draw upon its personal knowledge and recollection of the case. See Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1997); United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990). Thus, a § 2255 petition, or any part of it, may be dismissed without a hearing if, after a review of the record, the court determines that the motion is without merit because the allegations are insufficient as a matter of law.

         II. DISCUSSION

         A. Claim One

         The petitioner contends that he was never arraigned on the initial indictment and, therefore, the court lacked jurisdiction to try him on the charges in the Superseding Indictment. However the docket sheet in the criminal case shows that the petitioner was presented and arraigned on the initial indictment. The docket sheet reflects that the petitioner was arrested on March 14, 2014 and that his initial presentment was held that day and he was detained.

         Federal Rule of Criminal Procedure 10 sets forth the requirements with respect to an arraignment:

(a) In General. An arraignment must be conducted in open court and must consist of:
(1) ensuring that the defendant has a copy of the indictment or information;
(2) reading the indictment or information to the defendant or stating to the defendant the substance of the charge; and then
(3) asking the defendant to plead to the indictment or information.

Fed. R. Crim. P. 10. There are six entries on the docket sheet for March 18, 2002. The third entry contains the following language: “PLEA entered by Negus Thomas. Not Guilty: Negus Thomas (1) count(s) 1, 4, 10 Court accepts plea.” There is also a motion by the petitioner for bond, which was ...


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