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In the United States District Court for the Western District of Tennessee Western Division

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In the United States District Court for the Western District of Tennessee Western Division Case 2:03-cv-02416-JPM-tmp Document 176 Filed 08/27/15 Page 1 of 302 PageID <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION () ANDREW L. THOMAS, () () Movant, () () v. () Cv. No. 2:03-cv-02416-JPM-tmp () Cr. No. 2:98-cr-20100-01-JPM UNITED STATES OF AMERICA, () () Respondent. () () () ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, GRANTING A LIMITED CERTIFICATE OF APPEALABILITY, AND CERTIFYING THAT AN APPEAL WOULD BE TAKEN IN GOOD FAITH Case 2:03-cv-02416-JPM-tmp Document 176 Filed 08/27/15 Page 2 of 302 PageID <pageID> TABLE OF CONTENTS I. BACKGROUND. 1 A. Criminal Case No. 98-20100. 1 B. The Testimony at Trial.. 6 1. Charles Young (November 9, 1998). 6 2. James Day (November 9, 1998).. 10 3. Betty Jean Gay (November 9, 1998). 12 4. David Martin Roth (November 9, 1998). 14 5. Christopher Sains (November 9, 1998). 16 6. Memphis Police Officer William L. Sanders (November 9, 1998). 18 7. Memphis Police Officer Lance Leabres (November 9, 1998). 19 8. Memphis Police Captain William J. Lee (November 9, 1998). 21 9. Shelby County Fingerprint Technician Gladys Lakes (November 9, 1998). 22 10. Co-Defendant Anthony Mykael Bond (November 9, 1998). 23 11. Memphis Police Officer Robin C. Hulley (November 9, 1998). 36 12. David Little, Pawn Shop Owner (November 9, 1998).. 38 13. ATF Special Agent John Prickett (November 10, 1998).. 40 14. John Hibbler, Owner, Auto Additions (November 10, 1998). 40 15. Angela Lavette Jackson (November 10, 1998). 41 16. Kevin McClain, McClain Motors (November 10, 1998).. 57 17. Jason Fleming, First American National Bank (November 10, 1998).. 58 18. Lajunta Kay Sikes, Auto Additions (November 10, 1998). 59 19. Tanya Monger (November 10, 1998).. 61 20. Jerry Sims, MPD Latent Fingerprint Examiner (November 10, 1998). 63 21. Charlie Tittsworth, Loomis, Fargo & Company (November 10, 1998).. 65 i Case 2:03-cv-02416-JPM-tmp Document 176 Filed 08/27/15 Page 3 of 302 PageID <pageID> 22. Deputy United States Marshal Scott Sanders (November 10, 1998).. 66 Stipulation. 66 Defense Witnesses. 66 23. Robert E. Fisher, Music Town (November 10, 1998). 66 24. Dana Wiggins (November 10, 1998). 69 25. Louella Barber, Thomas’ mother (November 10, 1998). 76 26. William Upchurch (November 10, 1998). 80 27. Eugene L. Miller, Private Investigator (November 10, 1998). 82 28. Russell Carpenter (November 12, 1998). 83 29. Deputy United States Marshal Scott Sanders (November 12, 1998).. 85 Thomas’ Decision. 85 30. Andrew Thomas (November 12, 1998). 87 Keith Echols, Travis Brown, Willie Cooper—Fifth Amendment. 96 31. Danise Murphy, Holiday Inn Express (November 12, 1998).. 97 32. Jennifer Howe, Best Western (November 12, 1998). 98 Government’s Rebuttal. 98 33. Paul Vandenbosch, Discount Cellular (November 12, 1998). 98 The Jury Charge and Verdict. 101 C. Criminal Case Number 00-20211. 101 D. The State Criminal Proceedings.. 102 E. Civil Case Number 03-2416. 103 F. The Evidentiary Hearing in Case Number 03-2416.. 117 Marty Pearce. 117 Grant R. Sperry. 138 Steven Briscoe. 157 Scott A. Sanders, U.S. Marshals Service.. 158 ii Case 2:03-cv-02416-JPM-tmp Document 176 Filed 08/27/15 Page 4 of 302 PageID <pageID> Robert Irby, Esq.. 182 Jacob Erwin, Esq... 214 G. Additional Proof Offered by Movant.. 215 William Upchurch, State Court Trial Testimony (September 22, 2001).. 215 Barry Brown, State Post-Conviction Hearing. 216 Angela Jackson, State Post-Conviction Hearing. 219 Bobby Lee Jackson, State Post-Conviction Hearing. 224 Tonya Gentry, State Post-Conviction Hearing.. 226 Gail Irene McDonald, State Post-Conviction Hearing.. 231 Terrance Lawrence, State Post-Conviction Hearing (by deposition).. 232 Stephanie Upchurch Williams, State Post-Conviction Hearing. 234 II. THE LEGAL STANDARD. 235 III. ANALYSIS OF MOVANT’S CLAIMS. 237 A. The Failure to Request a Severance (Claim 1). 237 B. The Failure to Investigate and Present the Bobby Jackson Defense (Claim 2). 257 1. The Bolegg Letter is a Forgery.. 260 2. Other Evidence of a Relationship Between Angela Jackson and Bobby Jackson is Not Persuasive. 275 3. Steven Briscoe Had No Relevant Information.. 279 4. The Southbrook Mall Robbery Was Not Relevant. 280 5. More Eyewitness Testimony Would Not Have Mattered. 283 C. The Failure to Investigate Dana Wiggins’ Alibi (Claim 3). 288 D. The Cumulative Effect of Counsel’s Ineffectiveness (Claim 4). 293 IV. APPEAL ISSUES. 296 iii Case 2:03-cv-02416-JPM-tmp Document 176 Filed 08/27/15 Page 5 of 302 PageID <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION () ANDREW L. THOMAS, () () Movant, () () v. () Cv. No. 2:03-cv-02416-JPM-tmp () Cr. No. 2:98-cr-20100-01-JPM UNITED STATES OF AMERICA, () () Respondent. () () () ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, GRANTING A LIMITED CERTIFICATE OF APPEALABILITY, AND CERTIFYING THAT AN APPEAL WOULD BE TAKEN IN GOOD FAITH Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “§ 2255 Motion”), as amended, filed by Movant Andrew L. Thomas, Tennessee Department of Correction prisoner number 206216, an inmate at the Riverbend Maximum Security Institution in Nashville, Tennessee.1 An evidentiary hearing on that motion was held on October 12 and 13, 2011. For the reasons that follow, the motion pursuant to 28 U.S.C. § 2255 is DENIED. I. BACKGROUND A. Criminal Case Number 98-20100 On June 15, 1998, a federal grand jury returned a three-count indictment against Thomas and a co-defendant, Anthony Mykael Bond. (Indictment, United States v. Thomas, No. 2:98-cr-20100- 01-JPM (W.D. Tenn.), ECF No. 1.) The Indictment charged the following offenses: 1Movant’s Bureau of Prisons register number is 16523-076. 1 Case 2:03-cv-02416-JPM-tmp Document 176 Filed 08/27/15 Page 6 of 302 PageID <pageID> COUNT ONE 1. At all times material to this Indictment, Loomis Fargo & Company, was a business engaged in interstate commerce and in activity affecting interstate commerce. 2. On or about April 21, 1997, in the Western District of Tennessee, --------------ANDREW L. THOMAS-------------- and ----------ANTHONY MYKAEL BOND---------- being aided and abetted, each by the other, did unlawfully obstruct, delay, and affect, and attempt to obstruct, delay, and affect, commerce, as that term is defined in Title 18, United States Code, Section 1951, by robbery, as that term is defined in Title 18, United States Code, Section 1951, in that ANDREW L. THOMAS and ANTHONY MYKAEL BOND did unlawfully take and obtain property belonging to and in the custody of Loomis, Fargo, & Company, from an employee of Loomis, Fargo & Company, against the employee’s will by means of force and violence to the employee’s person. In violation of Title 18, United States Code, Section 1951. COUNT TWO On or about April 21, 1997, in the Western District of Tennessee, --------------ANDREW L. THOMAS-------------- and ----------ANTHONY MYKAEL BOND---------- being aided and abetted, each by the other, did, during and in relation to a crime of violence, specifically, Robbery Affecting Commerce in violation of Title 18, United States Code, Section 1951, knowingly use and carry a firearm. In violation of Title 18, United States Code, Section 924(c). COUNT THREE On or about April 24, 1997, in the Western District of Tennessee, --------------ANDREW L. THOMAS-------------- having been convicted of a crime punishable by imprisonment for a term exceeding one year, that is: 1. AGGRAVATED ROBBERY, in the criminal court of Shelby County, Tennessee, Case Number 93-05162, on September 6, 1994; 2. AGGRAVATED ROBBERY, in the Criminal Court of Shelby County, Tennessee, Case Number 93-05161, on September 6, 1994; 2 Case 2:03-cv-02416-JPM-tmp Document 176 Filed 08/27/15 Page 7 of 302 PageID <pageID> 3. ROBBERY, in the criminal court of Shelby County, Tennessee, Case Number 93-05160, on September 6, 1994; 4. AGGRAVATED ROBBERY, in the Criminal Court of Shelby County, Tennessee, Case Number 93-05159, on September 6, 1994; 5. AGGRAVATED ROBBERY, in the Criminal Court of Shelby County, Tennessee, Case Number 93-05158, on September 6, 1994; 6. AGGRAVATED ROBBERY, in the Criminal Court of Shelby County, Tennessee, Case Number 93-05157, on September 6, 1994; 7. AGGRAVATED ROBBERY, in the Criminal Court of Shelby County, Tennessee, Case Number 93-05156, on September 6, 1994; 8. AGGRAVATED ROBBERY, in the Criminal Court of Shelby County, Tennessee, Case Number 93-05155, on September 6, 1994; 9. ROBBERY, in the criminal court of Shelby County, Tennessee, Case Number 93-07600, on September 9, 1994; 10. AGGRAVATED ROBBERY, in the Criminal Court of Shelby County, Tennessee, Case Number 93-09267, on January 31, 1993; 11. THEFT OVER $1,000, in the Criminal Court of Shelby County, Tennessee, Case Number 91-11980, on May 6, 1992; did possess in and affecting commerce a firearm, that is, a Mossberg .12 gauge shotgun, serial number K742634; in violation of Title 18, United States Code, Section 922(g). (Id.) Thomas was arrested on August 12, 1998. (Arrest Warrant returned executed, United States v. Thomas, No. 2:98-cr-20100-01-JPM (W.D. Tenn.), ECF No. 8.) Robert C. Irby was appointed to represent Thomas. (Order on Arraignment, id., ECF No. 17.) On October 26, 1998, the case against Thomas was severed from that against Bond. (Mins., id., ECF No. 36.) On November 4, 1998, pursuant to a written plea agreement, Bond entered a guilty plea to Count 1 of the Indictment. (Mins., id., ECF No. 44; Plea Agreement, id., ECF No.
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