USA v. Thompson

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
v. 	CASE NO. 3:22-CR-00029-BSM
KENNETH THOMPSON 	DEFENDANT
Reg. No. 09822-510
ORDER
Kenneth Thompson’s pro se motion to vacate, set aside, or correct his sentence [Doc.
No. 59] pursuant to 28 U.S.C. section 2255 is denied.
Thompson pled guilty to possession with intent to distribute methamphetamine and
was sentenced as a career offender to 162 months imprisonment. 	Doc. Nos. 42 & 52.
Thompson is moving for relief under 28 U.S.C. section 2225, asserting that his lawyer was
ineffective, prosecutorial misconduct, and error. See Mot. Vacate at 5–8, Doc. No. 59.
A. 	Ineffective Assistance of Counsel
To prevail on his claim of ineffective assistance of counsel, Thompson must first show
that his lawyer’s performance fell below an objective standard of reasonableness. Strickland
v. Washington, 466 U.S. 668, 688 (1984). 	Specifically, he must identify the acts or
omissions of counsel that can be characterized as unreasonable professional judgment. Id.
at 690. Then, it must be determined whether counsel’s actions were outside the wide range
of professionally competent assistance. 	Id. 	Thompson’s burden is very high because
“[j]udicial scrutiny of a counsel’s performance is highly deferential” and “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
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exercise of reasonable professional judgment.” Id. at 689–90; see Driscoll v. Delo, 71 F.3d
701, 706 (8th Cir. 1995).
If Thompson could show that his lawyer’s actions were deficient, he would still have
to prove prejudice. Strickland, 466 U.S. at 694. This would require him to show that, but
for his lawyer’s errors, there is a reasonable probability the result of the proceeding would
have been different. 	Id. 	The problem for Thompson is that he cannot show deficient
performance or prejudice.
Thompson’s main argument is that his lawyer was ineffective because he did not
support his argument about Thompson’s career offender status with November 1, 2024
sentencing guidelines amendments. The problem with this argument is that Thompson’s
predicate offenses were crimes of violence, namely, second degree battery and terroristic act.
See 96520b and 09CR-15-73A. Both of these are qualifying predicate offenses for the career
offender enhancement. See U.S.S.G. § 4B1.1(a). Additionally, Thompson was informed of
his career offender status prior to entering into his plea. See Doc. No. 39.
Thompson also argues that his lawyer was ineffective because he did not file an
appeal but does not state the grounds he wished for the appeal to be filed on. 	In fact,
Thompson’s motion does not state that he asked his lawyer to file an appeal, rather that
Thompson allowed the fourteen day period to lapse because his lawyer told him that he did
not have solid grounds to appeal. See Barger v. United States, 204 F.3d 1180, 1182 (8th Cir.
2000) (defendant must show he instructed counsel to file an appeal); Rodriguez v. United
States, 17 F.3d 225, 226 (8th Cir. 1994) (per curium) (holding that “counsel’s failure to
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advance a meritless argument cannot constitute ineffective assistance”).
B. 	Prosecutorial Misconduct
Prosecutorial misconduct claims require a defendant to show that the government’s
conduct was improper and affected his substantial rights. See United States v. Clayton, 787
F.3d 929, 933 (8th Cir. 2015). Thompson argues that the government’s attorney asked for a
firearm enhancement at sentencing and should have known the November 1, 2024,
amendments do not permit that. Mot. Vacate at 6. Thompson does not meet this burden for
several reasons. First, the claim is procedurally defaulted because it was not raised on direct
appeal. See Jennings v. United States, 696 F.3d 759, 762 (8th Cir. 2012). Second, Thompson
knew at his plea that he would be subject to a firearm enhancement. See Doc. No. 42 at 4.
Third, even if Thompson were able to show that the government engaged in improper
conduct, nothing in the record indicates his rights were affected by that conduct.
C. 	Error
Thompson’s last argument is that there was “a mistake by a lower court in conducting
judicial proceedings or making findings in a case to compel to conclusion that a manifest has
been done.” 	See Mot. Vacate at 8. Thompson does not, however, point out what mistake
was made. Therefore the argument is denied.
There is no need to conduct an evidentiary hearing because the record conclusively
shows that Thompson is not entitled to relief. See Roundtree v. United States, 751 F.3d 923,
925 (8th Cir. 2014). Furthermore, no certificate of appealability is issued because Thompson
has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. §
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2253(c)(2).
For these reasons, Thompson’s pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. section 2255 is denied.
IT IS SO ORDERED this 21st day of November, 2025.
UNITED STATES DISTRICT JUDGE
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