You're viewing Docket Item 176 from the case United States of America v. Thigpen. View the full docket and case details.

Download this document:

Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 1 of 10


Civil No. 04-3179(DSD)

Criminal No. 02-37(1)(DSD/SRN)

United States of America,

Jeffery J. Thigpen, a/k/a
Jeffrey Jerome Thigpen,



This matter is before the court upon defendant’s motions to

modify term of imprisonment, pursuant to 18 U.S.C. § 3582(c), and
to vacate, set aside or correct sentence, pursuant to 28 U.S.C.
§ 2255. Based upon a review of the file, record and proceedings
herein, defendant’s motions are denied.


On January 24, 2002, defendant Jeffrey J. Thigpen was indicted
upon twenty-four counts of health care fraud, nineteen counts of
false statement relating to health care matters and eleven counts
of money laundering. Following trial, defendant was convicted of
sixteen fraud counts, seventeen false statement counts and eight
money laundering counts. On August 30, 2002, the court sentenced
defendant to fifty-one months of imprisonment on each count, all to
be served concurrently, followed by three years of supervised
release. Defendant appealed his conviction to the United States

Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 2 of 10

Court of Appeals for the Eighth Circuit, and that court affirmed.
United States v. Thigpen, 85 Fed. Appx. 541 (8th Cir. 2004) (per
curiam). Defendant now moves, inter alia, to modify his term of
imprisonment pursuant to 18 U.S.C. § 3582(c) and to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255.



Motion to Modify Term of Imprisonment Pursuant to 18 U.S.C.
§ 3582(c)(2)

Defendant moves to modify his term of imprisonment and claims
entitlement to a six-offense-level reduction pursuant to sentencing
guideline section 2X3.1. That section prescribes a base offense
level for defendants who have been convicted of being an accessory
after the fact. See, e.g., 18 U.S.C. § 3 (“Whoever, knowing that
an offense against the United States has been committed, receives,
relieves, comforts or assists the offender in order to hinder or
prevent his apprehension, trial or punishment, is an accessory
after the fact.”). Defendant was neither charged with nor
convicted of being an accessory after the fact. Therefore,
guideline section 2X3.1 has no application to his case, and his
motion is denied.
II. Motion to Modify Term of Imprisonment Pursuant to 18 U.S.C.

§ 3582(c)(1)(A)

Defendant makes a separate motion to modify his term of
imprisonment pursuant to 18 U.S.C. § 3582(c)(1). That provision


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 3 of 10

permits the court to reduce a term of imprisonment upon motion of
the director of the United States Bureau of Prisons. See 18 U.S.C.
§ 3582(c)(1)(A). As defendant is not the director of the Bureau of
Prisons, the court must deny the motion.
III. Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28

U.S.C. § 2255
Section 2255 provides a person in federal custody a limited

opportunity to collaterally challenge the constitutionality,
legality or jurisdictional basis of the sentence imposed by the
court. See United States v. Addonizio, 442 U.S. 178, 185 (1979).
Collateral relief is considered an extraordinary remedy. See
Bousley v. United States, 523 U.S. 614, 621 (1998). Defendant’s
motion raises several claims.

Blakely v. Washington

Defendant claims that the decision of the Supreme Court of the
United States in Blakely v. Washington, 124 S. Ct. 2531 (2004),
renders his sentence subject to collateral attack. In Blakely, the
Court extended its holding in Apprendi v. New Jersey, 530 U.S. 466
(2000). In Apprendi, the Court held that “any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490.

In Blakely, the Court held that the relevant “statutory
maximum” is that which a judge may legally impose “solely on the
basis of facts reflected in the jury verdict or admitted by the


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 4 of 10

defendant.” Id. at 2537 (citing Ring v. Arizona, 536 U.S. 584, 602
(2002)). The Court held that the State of Washington’s sentencing
scheme, which allowed imposition of a sentence above the range
specified by guidelines on the basis of facts found by a judge,
violated the Sixth Amendment right to trial by jury. See id. at

Defendant’s Blakely claim fails for several reasons. First,
it has not been established that Blakely applies to the federal
sentencing guidelines. See Blakely, 124 S. Ct. at 2538 n.9.
Second, even if Blakely applies to the federal sentencing
guidelines, it does not apply retroactively to matters on
collateral review.

New constitutional rules of criminal procedure are generally
not applicable to cases on collateral review. See Schriro v.
Summerlin, 124 S. Ct. 2519, 2522-23 (2004). Only “watershed”
procedural rules are given retroactive effect so as to apply to
convictions and sentences that have become final. See id. at 2523.
A watershed procedural rule is one “without which the likelihood of
an accurate conviction is seriously diminished.” Teague v. Lane,
489 U.S. 288, 313 (1989).

In Summerlin, the Court considered whether the rule announced
in Ring applied retroactively. See Summerlin, 124 S. Ct. at 2526.
Like Blakely, Ring applied Apprendi to a state’s sentencing
procedures. See Ring, 536 U.S. at 603-09. In Ring, the Court


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 5 of 10

concluded that where Arizona law permitted the death penalty given
certain aggravating factors, such factors must be found by a jury,
not a judge. See id. at 609. The United States Court of Appeals
for the Ninth Circuit later applied Ring retroactively. See
Summerlin v. Stewart, 341 F.3d 1082, 1121 (9th Cir. 2003). The
circuit court concluded that Ring had announced a substantive,
rather than a procedural, rule or, alternatively, a watershed
procedural rule. See id. at 1108, 1120.

On review, the Supreme Court disagreed, holding that Ring was
not a substantive rule because it did not alter the range of
conduct subject to Arizona’s death penalty. See Summerlin, 124 S.
Ct. at 2523. It further held that Ring was not a watershed rule
because it is not clear that judicial fact-finding “so seriously
diminishe[s] accuracy as to produce an impermissibly large risk of
injustice.” Id. at 2535 (emphasis in original) (internal quotation
marks omitted). Therefore, Ring does not have retroactive
application. See id. at 2536. By that reasoning, Apprendi is not
a watershed rule either.1 It follows, then, that Blakely is also
procedural, rather than substantive, and that it is not a watershed

1 Compare United States v. Moss, 252 F.3d 993, 996 (8th Cir.
2001) (holding that Apprendi does not apply to initial § 2255
motions because it is not a watershed rule), with Rodgers v. United
States, 229 F.3d 704, 705-06 (8th Cir. 2000) (holding that Apprendi
does not apply retroactively to second or successive § 2255 motions
unless Supreme Court first so holds).


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 6 of 10

rule. Therefore, defendant’s motion for collateral relief cannot
be grounded on that basis.

Ineffective Assistance of Appellate Counsel

Defendant raises a single claim of ineffective assistance of
counsel. To establish a claim of ineffective assistance, defendant
must meet both prongs of the test set forth in Strickland v.
Washington, 466 U.S. 668, 694 (1984). First, defendant must show
that his counsel’s performance was so deficient that it fell below
the level of representation guaranteed by the Sixth Amendment. See
id. at 687. Second, defendant must show “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Id. at 694. Thus, to
grant defendant’s section 2255 motion, the court must find that he
likely would have prevailed on the issues had they been properly
presented by his attorney. See Kitt v. Clarke, 931 F.2d 1246, 1249
(8th Cir. 1991). There is a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance,” and the court reviews counsel’s performance with
significant deference. Strickland, 466 U.S. at 689.

Defendant argues that his counsel on direct appeal was
ineffective for failing to anticipate the decision of the Supreme
Court in Blakely. Counsel’s lack of clairvoyance, however, is not
the sort of unprofessional error contemplated in Strickland. Wajda
v. United States, 64 F.3d 385, 388 (8th Cir. 1995) (“counsel’s


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 7 of 10

performance is not deficient for failing to predict future
developments in the law”), quoted in Brown v. United States, 311
F.3d 875, 878 (8th Cir. 2002). In Brown, the Eighth Circuit held
that the defendant’s appellate counsel was not ineffective for
failing to anticipate the Supreme Court’s holding in Apprendi v.
New Jersey, 530 U.S. 466 (2000). By the same token, this court
must reject the argument that counsel was ineffective for not
having predicted the Court’s extension of Apprendi in Blakely.

Evidence Summaries

Defendant raises a claim based on summaries of evidence that
were admitted at his trial. Defendant alleges that the prosecutor
falsely represented to the court that the data which formed the
basis for the summaries were made available for defendant’s
inspection. See Fed. R. Evid. 1006 (requiring that originals or
duplicates of materials summarized be made available for
examination and copying). For proof, defendant points to a letter
he received from Special Assistant United States Attorney Deborah
Peterson in response to a request for copies of documents. The
letter indicates that Ms. Peterson does not possess “remittance
advices” submitted by doctors to Medicaid, which advices correspond
to medical transportation services defendant claims to have

As the government points out, however, defendant is mistaken
regarding what data were used to compile the summaries received in


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 8 of 10

evidence at his trial. Paper records were not used. Rather, the
government used an electronic “download” of Medicaid computer data.
These data were provided to defendant in electronic format on a
compact disc. Therefore, because the “remittance advices” were not
used to create the summaries received at trial, Rule 1006 of the
Federal Rules of Evidence did not require the government to make
them available to defendant. Accordingly, defendant’s claim for
relief fails.

Double Jeopardy

Defendant argues that his sentence should be vacated on the
ground of double jeopardy because his previous prosecution in
Ramsey County, Minnesota, District Court was a sham for the instant
prosecution. Under the dual sovereignty doctrine, “‘[t]here is no
double jeopardy bar against prosecution for the same offense in
both federal and state courts.’” United States v. Williams, 104
F.3d 213, 216 (8th Cir. 1997) (quoting United States v. Talley, 16
F.3d 972, 974 (8th Cir. 1994)). An exception exists, however, “if
‘the state prosecution was a sham and a cover for a federal
prosecution, and thereby in essential fact another federal
prosecution.’” Id. at 216 (quoting United States v. Garner, 32
F.3d 1305, 1310 (8th Cir. 1994)); Bartkus v. Illinois, 359 U.S.
121, 124 (1959).

Defendant argues that his state prosecution must have been a
sham because the state prosecutor, Ms. Peterson, was appointed a


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 9 of 10

Special Assistant United States Attorney to assist with his federal
prosecution. Cooperation between state and federal authorities,
however, does not automatically constitute an abuse of the dual
sovereignty doctrine. Williams, 104 F.3d at 216. Defendant has
failed to point to any evidence that Ms. Peterson or any other
state authority manipulated his state prosecution for the purpose
of aiding his federal prosecution. Moreover, jeopardy never
attached in the state prosecution. Therefore, the court cannot
vacate defendant’s conviction on double jeopardy grounds.


Accordingly, IT IS HEREBY ORDERED that:

Defendant’s motion to modify term of imprisonment [Docket

No. 153] is denied.


Defendant’s motion for new trial [Docket No. 157] is

Defendant’s motion for motion hearing transcript [Docket

No. 159] is denied.


Defendant’s motion for modification of an imposed term of

imprisonment [Docket No. 160] is denied.


Defendant’s motion for immediate release [Docket No. 164]

is denied.


Defendant’s motion to expedite orders and immediate

release [Docket No. 166] is denied.


Case 0:02-cr-00037-DSD-SRN Document 176 Filed 12/06/2004 Page 10 of 10


Defendant’s motion for release on bond pending

resentencing [Docket No. 175] is denied.


Defendant’s motion to amend his section 2255 motion

[Docket Nos. 170 & 171] is granted.


Defendant’s motion to vacate, set aside or correct

sentence, as amended, [Docket Nos. 161 & 165] is denied.

Dated: December 3, 2004

s/David S. Doty
David S. Doty, Judge
United States District Court