United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RODNEY W. SIPPEL, District Judge.
This matter is before me on Thedell Doss' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [#1]. For the reasons set forth below, the motion will be denied.
Doss was charged in an indictment with possession with intent to distribute in excess of 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). (Criminal Case 4:11CR381 RWS). On August 22, 2012, Doss pled guilty to the charge pursuant to a guilty plea agreement with respondent. In the plea agreement, Doss agreed that his base offense level would be 28 as found in Section 2D1.1. The parties also agreed that Doss should receive a reduction of three levels based upon his acceptance of responsibility, resulting in a total offense level of 25, and that Doss' criminal history would be determined by the Court. Doss further acknowledged that he was subject to a mandatory minimum term of imprisonment of five years. As part of the plea agreement, respondent agreed not to bring any further charges based upon his possession with intent to distribute heroin on February 19, 2010, and to withdraw its previously filed criminal information for Doss' prior felony offenses, which would have subjected him to a mandatory minimum sentence of ten years imprisonment. Finally, both parties agreed to waive their right to appeal the sentence imposed in the event that the Court accepted the plea agreement and sentenced Doss in accordance with its provisions.
In his plea colloquy, Doss stated that he understood the proceedings and the charges against him, that he was fully satisfied with the representation of his counsel, and that he knowingly and voluntarily waived his rights. (Doc. # 67 in 4:11CR381). I went through all the provisions of the plea agreement with him, including his total offense level and the maximum terms of imprisonment he was facing, and Doss stated that he understood and agreed with those provisions. (Id.). After the Assistant United States Attorney summarized the evidence against him, I asked Doss if he "did what he says you did"? Doss replied, "Yes, I did." (Id.). Doss having assured me of his guilt and his knowing and voluntary waiver of his rights, I accepted his guilty plea and set his case for sentencing on November 30, 2012.
After he pled guilty but before he was sentenced, Doss filed a pro se motion entitled "Motion Questioning District Court Jurisdiction to Successively Prosecute Defendant Pursuant to the Dual Sovereignty Doctrine." (Doc. #49 in 4:11CR381). In this motion, Doss complained that he was being "successively prosecuted" pursuant to the "dual sovereignty doctrine." Doss appeared for sentencing as scheduled and continued to be represented by counsel. However, at the beginning of the sentencing hearing Doss requested that he be allowed to address the issue of the Court's jurisdiction as follows:
DOSS: I explained to her that I don't understand why I'm in this court and why - how this court got jurisdiction when the indictment states that on 2/19/10 I committed a crime in the state of Missouri and that this indictment is saying that the 841(b) jurisdiction is based on that particular crime. And on 2/9/10 in the state of Missouri I never committed a charge. The charge was refused against me. The complaint was never issued, and I was released. I have never been in the custody of the United States government. I never been in the custody of the DEA. I never was arrested by the federal government. This case is, I believe, is here pursuant to dual sovereignty doctrine, and because it's here pursuant to the dual sovereignty doctrine, that my understanding is that this court does have jurisdiction to try a case on a dual sovereignty if I have already committed a previous act in another - in the state courts. And that's what I'm asking this court, to show the criminal complaint, the criminal act, that this 841 is based on, since the indictment clearly states that on 2/19/10 in the city - I mean in the city of St. Louis in the Eastern District of Missouri that can be dual sovereignly prosecuted because there was no previous prosecution or no previous charge against me.
(Doc. # 65 in 4:11CR381 at 5-7). The Assistant United States Attorney responded as follows:
TIHEN: On 2/19 of 2010, Mr. Doss possessed a large amount of heroin with the intent to distribute. He was arrested by city police officers, and the warrant was refused so that the federal crime could be charged. This court has jurisdiction under Title 18, United States Code, Section 3231, which provides pursuant to that section: Federal district courts possess original jurisdiction over all violations of federal law... Because of the facts involved in Mr. Doss' offense, that is, a violation of federal law, that is, Title 21, United States Code, Section 841(b)(1) and punishable under (b)(1)(B). So in that regard this court does have jurisdiction. I think Mr. Doss kind of blends his argument with a double jeopardy claim, but in this claim - case the crime committed by him is both a violation of state and federal law. However, he was never even charged in state court....
(Id. at 7-8). I also tried explaining to Doss that he was properly before the Court as follows:
COURT: There's only been one charge of conviction, and that was possession of heroin with intent to distribute in the United States District Court. And you may recall when you appeared before me before, Mr. Doss, that you did tell me under oath that this large bag containing a large amount of heroin was in your possession, and you understood that under oath that was yours, and in fact, I read you the elements of the count to which you pled guilty: That you were in possession of heroin; you knew you were in possession of heroin; you intended to distribute some or all of it to another person. And I told you not to plead guilty if you didn't believe the United States Attorney could prove all of those matters beyond a reasonable doubt, and you told me you understood that.... So there's no doubt that the Court has jurisdiction over your conduct as a United States District Court for your trafficking in heroin in the state of Missouri....
(Id. at 8-9). When Doss persisted in arguing that the Court lacked jurisdiction over him, I again explained that "[a]ll I need to know is that there is a law enacted by Congress that prohibits trafficking in heroin, which you told me under oath you did.... Therefore, you violated a law of the United States, which Congress has the right to regulate interstate commerce, and among those things it regulated in interstate commerce are those criminal acts that engage in interstate commerce which includes trafficking in illegal substances." (Id. at 10-11). I then proceeded to adopt the Presentence Investigation Report and sentence Doss to 105 months imprisonment consistent with the plea agreement. Despite this and the waiver of appeal rights contained in the plea agreement, Doss appealed to the Eighth Circuit Court of Appeals. Respondent moved to dismiss the appeal based upon the waiver in the plea agreement. On February 27, 2013, the Eighth Circuit summarily affirmed Doss' conviction and sentence. (Doc. # 69 in 4:11CR381). Doss then filed a petition for rehearing en banc, which was denied on April 17, 2013. The mandate issued on April 24, 2013, and Doss' motion to recall the mandate was denied on May 9, 2013. On October 15, 2013, the United States Supreme Court denied Doss' petition for a writ of certiorari. Doss then filed the instant motion for § 2255 relief.
On November 19, 2014, I granted Doss' motion for a sentence reduction pursuant to 18 U.S.C. § 3582, Sentencing Guidelines §1B1.10 and Amendment 782, and reduced Doss' term ...