USA v. Thompson

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JOSEPH THOMPSON,
Petitioner
vs. 	8:23-CR-257
8:25-CV-1189
UNITED STATES OF AMERICA, 	(MAD)
Respondent.
_______________________________________________
APPEARANCES: 	OF COUNSEL:
JOSEPH THOMPSON
62864-510
Allenwood Low Federal
Correctional Institution
P.O. Box 1000
White Deer, Pennsylvania 17887
Petitioner, Pro se
OFFICE OF THE UNITED 	MATTHEW J. MCCROBIE, AUSA
STATES ATTORNEY 	NICOLAS COMMANDEUR, AUSA
100 South Clinton St.
Syracuse, New York 13261
Attorneys for Respondent
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On July 12, 2024, Defendant-Petitioner Joseph Thompson ("Petitioner") pled guilty to a
two-count Indictment charging him with possession with intent to distribute a controlled
substance, in violation of Title 21, United States Code, Section 841(b)(1)(D) (Count One), and
possession of a firearm in furtherance of a drug trafficking crime, in violation of Title 18, United
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 1 of 24

2
States Code, Section 924(c)(1)(A)(i) (Count Two). See Dkt. No. 20; see also Text Minute Entry
07/12/2024. On December 19, 2024, Petitioner was sentenced to a term of imprisonment of six
months on Count One and sixty months on Count Two, to run consecutively. See Dkt. No. 46 at
2; see also Text Minute Entry 12/19/2024. Petitioner was also sentenced to three years
supervised release upon release from imprisonment on each of Counts One and Two, to be served
concurrently. See Dkt. No. 46 at 3. Petitioner did not appeal his conviction or sentence.
Currently before the Court is Petitioner's motion, filed pursuant to 28 U.S.C. § 2255,
which seeks vacatur of his conviction. See Dkt. No. 51. In the motion, Petitioner contends that
his counsel was ineffective for (1) failing to request a competency hearing and (2) allowing him
to plead guilty to Count Two when the facts could not support the conviction. See id. at 2-6. The
Government ("Respondent") responded in opposition, and Petitioner replied. See Dkt. Nos. 62,
64. For the reasons set forth below, Petitioner's motion is denied.
II. DISCUSSION
A. 	Standard of Review
Section 2255 of Title 28 of the United States Code states, in relevant part, that
[a] prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a). Relief under section 2255 is available "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,
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 2 of 24

3
83 F.3d 587, 590 (2d Cir. 1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
(internal quotation marks omitted). Moreover, a movant under section 2255 is barred from
relitigating questions "which were raised and considered on direct appeal," Riascos- Prado v.
United States, 66 F.3d 30, 33 (2d Cir. 1995) (citations and internal quotation marks omitted), as
well as any issue he could have raised on direct appeal, whether he actually raised it on appeal or
not, see Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir. 1998) (citation omitted).
The district court has the authority to dismiss a motion to vacate under section 2255
without a hearing if the record conclusively demonstrates that the petitioner is not entitled to
relief. See Pham v. United States, 318 F.3d 178, 184 (2d Cir. 2003). Further, "'[i]f it plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss the motion.'" Puglisi v. United
States, 586 F.3d 209, 213 (2d Cir. 2009) (quoting Rules Governing § 2255 Proceedings for the
United States District Courts, Rule 4(b)).
As Petitioner has brought the present motion pro se, the Court construes his submissions
liberally and interprets them to raise the strongest arguments that they suggest. See Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (collecting cases).
B. 	Ineffective Assistance of Counsel
Petitioner contends that his conviction and sentence should be vacated because his counsel
was ineffective for (1) failing to request a competency hearing and (2) allowing him to plead
guilty to a charge where his guilt was a legal impossibility. See Dkt. No. 51 at 2-6. As
Respondent correctly notes, Petitioner does not claim he was actually incompetent at the time of
his plea hearing or at any other relevant time; instead, his argument is that his counsel was
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 3 of 24

4
infective for failing to raise the question of his incompetence and failing to request a competency
hearing. See Dkt. No. 62 at 13.
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence." U.S. Const. amend. XI. "It has long been recognized that the right to counsel is the
right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970) (citations omitted).
In assessing a claim that the habeas petitioner has been denied the effective assistance of
counsel to which he is entitled under the Sixth Amendment, courts apply the standard established
by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, the
petitioner
"must meet a two-pronged test: (1) he 'must show that counsel's
performance was deficient,' . . . so deficient that, 'in light of all the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance' . . . ; and (2) he
must show 'that the deficient performance prejudiced the defense,' .
. . in the sense that 'there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different[.]'"
Matthews v. United States, 682 F.3d 180, 186 (2d Cir. 2012) (quoting Bennett v. United States,
663 F.3d 71, 84 (2d Cir. 2011)) (internal citations omitted).
As to the first prong of Strickland, attorney conduct is subject to an objective standard of
reasonableness, and is accorded deference in light of the "range of legitimate decisions" that
accompanies the various circumstances encountered by counsel. See Strickland, 466 U.S. at 688-
89. As a result, reviewing courts are required to "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance, bearing in mind that
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 4 of 24

5
there are countless ways to provide effective assistance in any given case and that even the best
criminal defense attorneys would not defend a particular client in the same way." United States v.
Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689) (alterations and
internal quotation marks omitted).
As to the second prong of Strickland, a petitioner must show that, but for his or her
attorney's deficient performance, there is a reasonable probability that the result would have been
different. See Strickland, 466 U.S. at 694. More is required than a mere showing "that the errors
had some conceivable effect on the outcome of the proceeding," as "not every error that
conceivably could have influenced the outcome undermines the reliability of the result of the
proceeding." Id. at 693.
"The Strickland standard is 'highly demanding,' . . . and 'rigorous[.]'" Bennett, 663 F.3d at
85 (citations omitted). An ineffective assistance of counsel claim "must be rejected if the
defendant fails to meet either the performance prong or the prejudice prong." Id. (citation
omitted).
1. Competence to Enter Guilty Plea
As the Supreme Court has explained, "[a] criminal defendant may not be tried unless he is
competent[,] . . . and he may not . . . plead guilty unless he does so 'competently and
intelligently[.]'" Godinez v. Moran, 509 U.S. 389, 396 (1993) (citations omitted).
[A]t any time prior to sentencing the district court upon its own
motion, or that of the defense or prosecution, shall order a hearing
to determine the mental competency of the accused "if there is
reasonable cause to believe that the defendant may presently be
suffering from a mental disease or defect rendering him mentally
incompetent to the extent that he is unable to understand the nature
and consequences of the proceedings against him or to assist
properly in his defense."
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 5 of 24

6
United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) (quoting 18 U.S.C. § 4241(a)).
"The two-prong test for competency asks 'whether [the defendant] has sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the proceedings against him.'" United
States v. Brennan, 928 F.3d 210, 215-16 (2d Cir. 2019) (quoting Dusky v. United States, 362 U.S.
402, 402 (1960)). "It is well-established that some degree of mental illness cannot be equated
with incompetence to stand trial."1 Vamos, 797 F.2d at 1150 (citation omitted).
Here, there is compelling evidence in the record that petitioner was competent to enter his
guilty plea. At Petitioner's plea hearing, the Court carefully examined this subject: In response to
questions from the Court, Petitioner testified that was not currently being treated for any mental
health issues, had not taken any narcotics, drugs or alcohol within the last twenty-four hours, and
answered "Yes, your Honor" when the Court asked, "Are you fully able to understand the
discussion that I'm having with you today?" Dkt. No. 49 at 9. The Court found Petitioner was
competent and capable to enter an informed plea of guilty based on his demeanor, his colloquy
with the Court, and the representations of counsel. Id. at 19-20.
"[T]he representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing,
as well as any findings made by the judge accepting the plea, constitute a formidable barrier in
any subsequent collateral proceedings," since "[s]olemn declarations in open court carry a strong
presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see Oliver v. United
States, No. 07-CV-5921, 2008 WL 190487, *15 (S.D.N.Y. Jan. 22, 2008) ("On habeas review, the
1 Competence to stand trial and to plead guilty are measured by the same standard. See Godinez,
509 U.S. at 397-98 (rejecting "the notion that competence to plead guilty . . . must be measured by
a standard that is higher than (or even different from) the Dusky standard").
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 6 of 24

7
Court is entitled to rely on [the statements made in open court at the time the guilty plea is
entered], and they will not be set aside based on vague or conclusory allegations").
Submissions related to sentencing also support the Court's finding of competence at the
plea colloquy. Before sentencing, Petitioner's counsel engaged Dr. Sanford L. Drob, Ph.D. to
perform a forensic psychological examination of Petitioner. See Dkt. No. 44. Dr. Drob generated
a report after conducting a psychological interview and testing; the report was submitted with
Petitioner's sentencing memorandum. See id. Dr. Drob concluded, inter alia, that Petitioner
suffered from significant life trauma and "is a multiply impaired defendant, whose intellectual
functioning is significantly below average . . . ." Id. at 9. However, Dr. Drob also concluded that
"while significantly below average, his verbal functioning is sufficient for normal
communication." Id. at 8. Indeed, during his psychological interview and testing, Petitioner was
able to explain the nature of the charges and why he committed the offense, and had a "reasonable
understanding of courtroom procedure." See id. at 4-5.
Accordingly, the Court, finding no reason to reverse its earlier determination, again finds
that Petitioner was mentally competent at the time of his plea. See United States v. Del Carpio,
63 Fed. Appx. 539, 540-41 (2d Cir. 2003) (summary order) (finding no error in district court
decision not to hold competence hearing where psychiatric examination confirmed that the
defendant was not suffering from a mental disease or defect rendering him incompetent and the
defendant's responses to the district court's questioning at the plea hearing "were not such as to
undermine the court's finding that he was competent") (citations omitted).
The Court's above determination that Petitioner was competent at the time he pled guilty
"forecloses a finding that" his attorney was "unreasonably deficient in reaching the same
conclusion." United States v. Jude, No. 15-CR-355, 2019 WL 3500284, *4 (S.D.N.Y. Aug. 1,
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 7 of 24

8
2019) (citing Del Carpio, 63 Fed. Appx. at 541). Indeed, Respondent has submitted a declaration
from Geoffrey S. Stewart, Esq., the attorney that represented Petitioner from the time "shortly
after his arrest" through his guilty plea and sentencing. Dkt. No. 62-1 at ¶ 5. In his declaration,
Mr. Stewart confirms that Petitioner appeared competent throughout the entirety of the
representation; the declaration states, in relevant part as follows:
In all my interactions with Mr. Thompson I never had any difficulty
communicating with him. We discussed everything from the facts
of the alleged offenses, his life history, his prior legal history, the
charges he faced and punishments permitted by law, and his options
going forward. I also enlisted a colleague to assist with compiling
Mr. Thompson's personal history and letters of support from his
family, friends and the community. My colleague never indicated
any impediments or difficulties communicating with Mr.
Thompson. He was always polite, rational and appeared to
comprehend the information we conveyed to him. He asked
relevant questions and appeared satisfied with our responses.
Without question he understood the roles of all the parties in a
criminal matter; he understood the charges and his options in
resolving the criminal charges against him.
The decision to have Mr. Thompson evaluated by a psychologist,
retained by the defense, was to assist the defense and ultimately the
court in understanding some of the challenges faced by Mr.
Thompson in his life which explain his lack of judgment leading up
to his arrest. There was nothing in the psych report to suggest to
myself that Mr. Thompson was so severely cognitively impaired
that he might be incompetent. Even the possibility of a client who
seems unable to communicate or collaborate with me, or seems
unable to appreciate and understand the basics of our system, would
prompt me to request a hearing to determine his/her competency.
Nothing in my interactions with and observations of Mr. Thompson,
nothing in the psych report, and nothing in the many letters
submitted on his behalf caused me to even consider that he was
incompetent to stand trial, enter a guilty plea and/or be sentenced.
Id. at ¶¶ 5-6.
Aside from conclusory allegations and self-serving statements, Petitioner has not offered
any evidence that undermines his sworn statements before this Court or the conclusions of the
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 8 of 24

9
Court and Petitioner's counsel as to his competency at the time he pled guilty. The mere fact that
counsel and the Court were aware that Petitioner suffered from some cognitive limitations does
not mean that a competency hearing was warranted See Coleman v. Rick, 281 F. Supp. 2d 549,
558 (E.D.N.Y. 2003) ("Petitioner has provided no evidence that he was not competent to plead;
evidence of his learning disability does not suffice . . . . Because petitioner has not demonstrated
that he was not competent to plead guilty, and because counsel had no reason to believe petitioner
incompetent, counsel's representation in this regard was not ineffective"). For these reasons,
Petitioner has failed to rebut the strong presumption that his counsel's performance was adequate.
Moreover, Petitioner has not established any prejudice. As discussed, Petitioner's
statements and actions in open court indicated his clarity of mind, and therefore, a request for a
competency hearing would not have altered the course of his case. See Guzman v. United States,
No. 13-CV-06806, 2015 WL 1137533, *4 (S.D.N.Y. Mar. 12, 2015) ("Guzman first claims that
his counsel was ineffective due to her failure to research Guzman's mental health history and a
corresponding failure to request a competency hearing. This claim fails because, as discussed, it
is evident that Guzman was lucid at his guilty plea hearing. Because Guzman's own statements
and actions in open court indicated his clarity of mind, a competency hearing would not have
altered the course of his case").
For these reasons, even construing Petitioner's submissions to raise the strongest
arguments they suggest, Petitioner's has failed to satisfy either prong of the demanding Strickland
test.
2. Factual and Legal Basis for Count Two
Petitioner also contends that his counsel was ineffective because he "allowed and thus
encouraged … Petitioner to enter a plea of guilty to a charge that was statutorily impossible to
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 9 of 24

10
prove." Dkt. No. 51 at 4. The charge that Petitioner takes issue with is his conviction for
possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i). See id. at 3-6. Relying on Watson v. United States, 552 U.S. 74, 83 (2007), and
United States v. Gardner, 602 F.3d 97, 99 (2d Cir. 2021), Petitioner argues that the transaction in
this case, which involved the transfer of firearms as payment for drugs, does not constitute
possession of a firearm in furtherance of a drug trafficking offense under § 924(c). See id. The
Court agrees with Respondent that Petitioner's claim is premised on a misunderstanding of the
law. See Dkt. No. 62 at 17-21.
As to Petitioner's conviction under § 924(c)(1)(A)(i), when asked what the Government
would prove if this case had gone to trial, the prosecution stated as follows at the plea hearing:
[T]he government would have been required to prove the defendant
committed a drug trafficking crime for which he may be prosecuted
in a court of the United States. And two, the defendant knowingly
possessed the firearms in furtherance of a drug trafficking crime.
At trial, your Honor, those elements would have been proved by the
following, in sum and substance: that in April 2023 the defendant
discussed a potential sale of marijuana in exchange for firearms
with an individual who, unbeknownst to the defendant, was an
undercover law enforcement officer.
In subsequent discussions, the defendant and the undercover
officers agreed to finalize the transaction on June 7th, 2023, and on
or about June 7th, 2023, the defendant met the undercover officer at
a parking lot in Massena, New York.
The undercover showed the defendant a shoebox containing seven
firearms and firearm ammunition magazines. The firearms [were]
semiautomatic pistols which, unbeknownst to the defendant, had
firing pins that were filed down but which could have been readily
converted back to operating condition by replacing those firing
pins.
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 10 of 24

11
The defendant then told the undercover that the defendant was a
"middle guy" and that he had contact in Montreal who would pay
approximately [$]2,000 to $2,300 for each firearm.
The defendant completed the transaction and gave the undercover
approximately 18 pounds of marijuana in exchange for the seven
firearms and ammunition magazines.
Law enforcement seized the defendant and the firearms shortly after
the defendant completed the transaction with the undercover officer.
Dkt. No. 49 at 12-13.
The Court then asked, "Mr. Thompson, you just heard what the government said they
could prove if the case had gone to trial. Is that what you did and what occurred in this case?"
Petitioner responded, "Yes, your Honor." Id. at 13. Petitioner's counsel also advised the Court
that was his understanding. See id.
In Watson v. United States, the Supreme Court held that a person who receives a firearm
in trade for drugs cannot be convicted under the "use" prong of § 924(c). See Watson, 552 U.S. at
79. However, as the Second Circuit subsequently explained in United States v. Gardner, "[i]n
1998, Congress amended [§] 924(c)(1) to add the 'possession in furtherance' prong[,]" which now
means that "a defendant violates [§] 924(c)(1)(A) if he 'possesses a firearm' 'in furtherance of . . .
[a] drug trafficking crime.'" Gardner, 602 F.3d at 101 (citations omitted). Based upon this
statutory amendment, the Second Circuit held "that when a defendant acquires a firearm using
drugs as payment, he possesses that firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1)(A)." Id. at 103. In so holding, the Second Circuit explained that
"[w]hether a person who acquires a gun with drugs does so in order to obtain the gun . . . or to sell
drugs, that person furthers the sale of the drugs by possessing the gun . . . ." Id.
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 11 of 24

12
Petitioner contends that although Mr. Stewart cited Watson and Gardner in Petitioner's
sentencing memorandum, see Dkt. No. 43 at 15 n.12, Mr. Stewart failed to recognize that
Petitioner could not be convicted under § 924(c)(1)(A)(i), see Dkt. No. 51 at 3-5. According to
Petitioner, Mr. Stewart "failed to advise [Petitioner] that an argument existed regarding §
924(c)(1)(A) could have been successful at trial." Id. at 5. However, Petitioner misunderstands
Watson and Gardner and their applicability to his case.
Petitioner pled guilty to the "possession in furtherance" prong of § 924(c)(1)(A), not the
"use" prong. See Dkt. No. 20 at 1-2; Dkt. No. 49 at 12-13. As Respondent correctly notes, Mr.
Stewart cited Watson and Gardner in the sentencing memorandum "not to claim that [Petitioner]
could not have committed the offense as charged, but rather to argue that the Court should view
the nature and circumstances of [Petitioner's] offense in mitigation when imposing sentence."
Dkt. No. 62 at 18. Indeed, Mr. Stewart's decision not to argue that Petitioner did not violate §
924(c) is amply supported by case law. As many courts have observed, "trading a gun for drugs
does indeed amount to 'possession of a firearm in furtherance of a drug trafficking crime.'"
United States v. Salazar, No. 15-CR-6044, 2024 WL 1640947, *3 (W.D.N.Y. Apr. 16, 2024)
(citation omitted); see United States v. Ferreira, No. 17-CR-6138, 2022 WL 1539545, *12
(W.D.N.Y. May 16, 2022) ("[R]eceiving a gun in trade for drugs amounts to possession of a
firearm in furtherance of a drug trafficking crime") (citing Gardner, 602 F.3d at 99); Johnson v.
Johns, No. 10-CV-904, 2013 WL 504446, *2 (E.D.N.Y. Feb. 5, 2013) ("[T]he conduct to which
petitioner pleaded guilty (providing cocaine base to a straw purchaser in exchange for a firearm)
constitutes a violation of [§] 924(c)(1)(A), and petitioner's guilty plea to Count One of the
Information is not constitutionally invalid").
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 12 of 24

13
Simply stated, the conduct to which Petitioner pled guilty was a violation of §
924(c)(1)(A). Mr. Stewart's representation was not deficient in this regard—to the contrary, the
Court finds that he aptly stated the law and zealously offered mitigating distinctions to assist
Petitioner in obtaining a more favorable sentence.2
Ultimately, Petitioner's attorney was not required to raise legal arguments that were
unlikely to succeed. See Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) ("The law does not
require counsel to raise every available nonfrivolous defense"). It was not deficient
representation for counsel to neglect to inform Petitioner of legally unsound arguments. See
United States v. Raghoonanan, No. 5:12-CR-00158-CR-1, 2018 WL 1084053, *8 (D. Vt. Jan. 10,
2018), R&R adopted, 2018 WL 1083500 (D. Vt. Feb. 26, 2018) (finding the petitioner could not
satisfy either Strickland prong because "Watson does not apply to a conviction for possessing a
firearm in furtherance of a drug trafficking crime," and the petitioner's attorney "was under no
obligation to raise legal arguments that were unlikely to succeed") (citations omitted). Petitioner's
Watson/Gardner argument fails to meet either prong of the Strickland test.
3. Remaining Arguments Related to Count Two
Petitioner also contends that Mr. Stewart should not have permitted him to plead guilty to
Count Two because (1) the firearms were inoperable; and (2) Petitioner did not "possess" the
firearms because he "never inspected or touched . . . or exert[ed] control [over the firearms] in the
transaction." Dkt. No. 51 at 4. And, in his reply brief, Petitioner expands upon the latter
argument, contending that because he "sought cash, not guns" and law enforcement "introduced
2 According to the Presentence Investigation Report, the guidelines imprisonment range was 10
to 16 months on Count One, plus a mandatory consecutive 5 years on Count 2. See Dkt. No. 39 at
¶ 55. The Government argued for an above-guidelines sentence of 84 total months. See Dkt. No.
42 at 1. But, ultimately, this Court sentenced Defendant to a below guidelines sentence of 6
months on Count One plus 5 years on Count Two. See Dkt. No. 46.
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 13 of 24

14
the guns into the transaction," it was the Government, not Petitioner, who "used the guns 'in
furtherance[.]'" Dkt. No. 64 at 2-3. In the same vein, Petitioner also claims that Mr. Stewart was
ineffective for failing to recognize Petitioner's role in the firearms transaction was merely passive
and that the UC's introduction of firearms into the deal constituted entrapment. See id. The Court
will address these arguments in turn.
i. The firearm need not be operable
As to the first argument, Respondent acknowledges that the firearms Petitioner took
possession of were rendered unable to fire because the firing pins were filed down. See Dkt. No.
62 at 19-20. However, whether the firearms were immediately operable is of no consequence
under the facts of the present matter.
For purposes of § 924(c),3 "firearm" is defined, in relevant part, as "any weapon
(including a starter gun) which will or is designed to or may readily be converted to expel a
projectile by the action of an explosive." 18 U.S.C. § 921(a)(3)(A). Thus, the Second Circuit has
found that "an inoperable pistol is a firearm within the meaning of § 921(a)(3)[,]" United States v.
Rivera, 415 F.3d 284, 286 (2d Cir. 2005), and courts have concluded that "'[t]here is no
prerequisite that [a] gun be operable to be a "firearm" under 18 U.S.C. § 924(c).'" United States v.
Perez, No. 16-CR-49-1, 2025 WL 1568814, *5 (S.D.N.Y. June 3, 2025) (quoting United States v.
Hawkins, No. 21-CR-414-1, 2025 WL 522502, *8 (S.D.N.Y. Feb. 18, 2025); see also United
States v. Castillo, 406 F.3d 806, 817 n.3 (7th Cir. 2005) ("Even assuming the jury was required to
conclude that the gun was in fact inoperable, it would not change our holding. There is no
prerequisite that the gun be operable to be a 'firearm' under 18 U.S.C. § 924(c)") (citation
3 As well as the other provisions of Title 18, Part I, Chapter 44 of the United States Code. See 18
U.S.C. § 921(a).
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 14 of 24

15
omitted); United States v. Alkufi, 636 Fed. Appx. 323, 329 (6th Cir. 2016) ("'[A] firearm need not
be operable to satisfy the definition of firearm for purposes of 18 U.S.C. § 924(c)'") (citation
omitted); United States v. Oquendo, No. 3:21-CR-181, 2023 WL 2753719, *1-3 (D. Conn. Apr. 3,
2023) (denying motion for judgment of acquittal on charge of possessing a firearm in furtherance
of a drug trafficking crime, in violation of § 924(c)(1)(A)(i), because, inter alia, "it is of no
consequence that the firearm was inoperable").
ii. Petitioner possessed the firearms
As to the possession related arguments, Petitioner pled guilty to facts which undoubtably
demonstrate he actually possessed the firearms.
As explained in the Presentence Investigation Report, there is a video recording of the
transaction between Petitioner and an undercover law enforcement agent (the "UC"). See Dkt.
No. 39 at ¶ 11. This video recording shows Petitioner: entered the UC's vehicle, discussed the
transaction of trading seven firearms for marijuana, examined the firearms and firearm magazines
brought by the UC, told the UC "that individuals in Montreal were paying $2,000 to $2,300 in
U.S. currency for firearms in Canada[,]" consummated the transaction, exited the UC's vehicle
with the firearms, and placed the firearms in the trunk of his own vehicle. Id. at ¶¶ 11-12.
Petitioner's inspection of the firearms he intended to purchase from the UC, exchange of
marijuana for the firearms, and exercise of control of the firearms after the transaction are
sufficient to find a violation of § 924(c)(1)(A)(i). See United States v. Gaines, 295 F.3d 293, 300
(2d Cir. 2002) (holding that videotape evidence showing the defendant holding a firearm in his
hand during a controlled transaction involving the undercover sale of firearms to the defendant
"was sufficient to allow a jury to find actual possession, however briefly it occurred"); see also
United States v. Harper, 934 F.3d 524, 528 (7th Cir. 2019) (upholding conviction under § 924(c)
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 15 of 24

16
because "'[r]eceiving a gun in exchange for drugs,' as [the defendant] did when he sat in the truck
and handed over most of the promised cocaine, qualifies as possession of a firearm in furtherance
of a drug-trafficking crime") (citation omitted); United States v. Gray, No. 4:18-CR-40065, 2023
WL 5437449, *3 (C.D. Ill. Aug. 23, 2023) (rejecting actual innocence argument raised in § 2255
motion where the petitioner admitted to receiving a firearm in exchange for three grams of
methamphetamine and one hundred dollars because "a defendant who receives a gun in exchange
for drugs possesses a firearm in furtherance of drug trafficking and violates [§ 924(c)]") (citing
United States v. Doody, 600 F.3d 752, 754-56 (7th Cir. 2010)).
Even assuming arguendo that Petitioner could demonstrate his attorney's representation
was deficient for failing to advise him of this possession argument, Petitioner cannot show he was
prejudiced merely because his counsel encouraged him to plead guilty under these circumstances.
As Respondent correctly argues, if Petitioner "had elected not to plead guilty and go to trial, the
jury would have been instructed on the legal definition of possession, which the evidence plainly
showed that [Petitioner] met." Dkt. No. 62 at 21.
iii. The Government's role in the transaction
The Court also finds Petitioner's arguments related to the UC's introduction of the firearm
into the transaction to be meritless. In support of these arguments, Petitioner cites United States
v. Westmoreland, 122 F.3d 431, 436 (7th Cir. 1997) and Sherman v. United States, 356 U.S. 369,
372 (1958).
First, Westmoreland pre-dates Watson, Gardner, and the 1998 amendment to § 924(c)(1).
In Westmoreland, the Seventh Circuit held that "[w]here the defendant does nothing more than
receive the gun in payment from a government agent, we cannot conclude that the defendant
'actively employed' the gun in the transaction." Westmoreland, 122 F.3d at 436. Thus, consistent
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 16 of 24

17
with Watson, according to Westmoreland, a defendant cannot be convicted under the "use" prong
of § 924(c) under such circumstances. See id.; Watson, 552 U.S. at 79. However, as discussed,
Congress amended § 924(c)(1) in 1998 to add the "possession in furtherance" prong and,
accordingly, the Second Circuit held "that when a defendant acquires a firearm using drugs as
payment, he possesses that firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A)." Gardner, 602 F.3d at 103. As Petitioner was convicted under the
"possession in furtherance" prong, not the "use" prong, Westmoreland is inapplicable.
More recent caselaw from the Seventh Circuit explains how courts treat the "possession in
furtherance prong" differently than the "use" prong. Indeed, courts have found a violation of
§924(c) in circumstances similar to those of this case. See United States v. Jones, 2016 WL
2622322, * 4 (N.D. Ill. May 9, 2016) ("[T]he [G]overnment's role in the drugs-for-guns exchange
did not preclude the Court from finding that [the d]efendant possessed a firearm 'in furtherance of'
a drug trafficking crime in violation of § 924(c)"). The reasoning in Jones is derived from
Seventh Circuit precedent which holds that a defendant may be found guilty of violating § 924(c)
even where the defendant distributes a controlled substance to an undercover agent in exchange
for a firearm as part of a law enforcement orchestrated sting operation. See id. at *3-4 (citing
Doody, 600 F.3d at 754-55 and United States v. Dickerson, 705 F.3d 683, 690 (7th Cir. 2013)).
As explained in Jones, "[i]n ruling that defendants violate § 924(c) when they receive
firearms in exchange for drugs, the Seventh Circuit has not carved out scenarios in which the
firearm dealer is an undercover government agent." Id. at *4 ("Rather, the Seventh Circuit, in
both Doody and Dickerson, relied, in part, on a Tenth Circuit case in which the defendants were
found guilty despite the government's sting operation similar to the one at issue") (citing Doody,
600 F.3d at 754-55 and Dickerson, 705 F.3d at 690). The Second Circuit does not appear to have
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 17 of 24

18
weighed in on whether the Government's involvement in a drugs-for-guns exchange in this
manner impacts whether a defendant can be found to have possessed a firearm "in furtherance of"
a drug trafficking crime. However, this Court finds the Seventh Circuit's reasoning persuasive,
especially in light of the fact that the First Circuit has also found a violation of § 924(c) where a
defendant exchanged drugs for guns with a government agent. See United States v. Gurka, 605
F.3d 40, 41-45 (1st Cir. 2010) (affirming district court's denial of a motion to withdraw plea to
violation of § 924(c)(1)(A) and noting that "[g]iven the terms of his barter agreement with the
agent, [the defendant's] possession of the gun was an essential component of the drug sale")
(collecting cases).
Second, Petitioner's reliance on Sherman is misplaced. In Sherman, the Supreme Court
explicitly explained that "the fact that government agents 'merely afford opportunities or facilities
for the commission of the offense does not' constitute entrapment." Sherman, 356 U.S. at 372.
To successfully assert the affirmative defense of entrapment, a defendant must
demonstrate, by a preponderance of the evidence, "'(1) government inducement of the crime, and
(2) lack of predisposition on the defendant's part.'" United States v. Bala, 236 F.3d 87, 94 (2d Cir.
2000) (quoting United States v. Salerno, 66 F.3d 544, 547 (2d Cir. 1995)). Predisposition is the
"'principal element'" of entrapment and "'focuses upon whether the defendant was an unwary
innocent or, instead, an unwary criminal who readily availed himself of the opportunity to
perpetrate the crime.'" United States v. Cromitie, 727 F.3d 194, 204 (2d Cir. 2013) (quoting
Mathews v. United States, 485 U.S. 58, 63 (1988)). The government may show predisposition
with evidence of
(1) an existing course of criminal conduct similar to the crime for
which [the defendant] is charged, (2) an already formed design on
the part of the accused to commit the crime for which he is charged,
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 18 of 24

19
or (3) a willingness to commit the crime for which he is charged as
evidenced by the accused's ready response to the inducement.
Salerno, 66 F.3d at 547 (quoting United States v. Valencia, 645 F.2d 1158, 1167 (2d Cir. 1980)).
Here, even assuming arguendo that Petitioner's counsel decided not to pursue an
entrapment defense and not to inform Petitioner of the same, such decision was reasonable given
the record in this case and the low likelihood of success for asserting such a defense. See Brito v.
United States, No. 13-CR-589, 2017 WL 3142074, *5 (S.D.N.Y. July 24, 2017) (finding "[a]ny
decision" by the petitioner's attorneys not to raise the defense of entrapment "was a reasonable
one given the risks associated and the low likelihood of success of such a defense. Generally
speaking, entrapment defenses are rarely successful") (collecting cases); see also Mitchell v.
Scully, 746 F.2d 951, 957 (2d Cir. 1984) (finding failure to apprise defendant of availability of
affirmative defense not ineffective assistance where "counsel had every reason to think that
raising the defense had almost no chance of success and would expose [the defendant] to the risk
of serious additional punishment on other charges . . .").
The record in this case and Petitioner's own rendition of the underling events in his § 2255
briefing demonstrate the low likelihood of success in asserting an entrapment defense. In his
reply brief, Petitioner states as follows:
The circumstances that involved this particular transaction was the
confidential informant (Cl) was personally known to Mr. Thompson
and to the entire population of the reservation as a gun dealer. Mr.
Thompson asserts that it was the Agent and the Cl who orchestrated
and structured the use of guns as form of payment in lieu of cash,
not Mr. Thompson. Clearly Mr. Thompson, who is not a gun
dealer, had no intention to acquire guns as form of payment, but
was coerced to do so trusting the Cl who promised Mr. Thompson
he would sell the guns and provide Mr. Thompson with the cash
minus a commission for himself.
Dkt. No. 64 at 2.
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 19 of 24

20
These facts differ slightly from those Petitioner admitted to in open court when he pled
guilty. See Dkt. No. 49 at 12-13. However, even if the Court accepted this alternative rendition
of facts as true, Petitioner expressly admits that he was willing to commit the crime—he intended
to sell marijuana to the UC and agreed to accept firearms instead of cash because he thought he
would be able to trade the firearms to someone who could sell them for him. Petitioner, therefore,
describes exactly why an entrapment defense was unlikely to succeed: even according to his own
characterizations, he was an "unwary criminal who readily availed himself of the opportunity to
perpetrate the crime." Cromitie, 727 F.3d at 204. As such, it was reasonable for Petitioner's
counsel to conclude that his client had shown "a willingness to commit the crime" as
demonstrated by a "ready response to the inducement." Salerno, 66 F.3d at 548 (citation and
internal quotation marks omitted).
Even if Petitioner could show that his counsel's conduct in failing to inform him of an
entrapment defense was somehow deficient, he fails to show that he suffered prejudice under the
second Strickland prong. When a petitioner claims that he "would have pursued an [entrapment]
defense but for his lawyer's erroneous advice" the Strickland "prejudice inquiry will depend
largely on whether the affirmative defense likely would have succeeded at trial." Kovacs v.
United States, 744 F.3d 44, 53 (2d Cir. 2014) (internal quotation marks and citation omitted). In
light of the record here, as discussed above, it is unlikely that Petitioner would have been entitled
to a jury instruction on entrapment, let alone that he would have succeeded on such a defense at
trial. See Camacho v. United States, No. 13-CR-0058, 2018 WL 357312, *7 (S.D.N.Y. Jan. 10,
2018) (finding no prejudice in counsel's failure to advise the petitioner regarding defenses of
entrapment and coercion when recommending he plead guilty where such defenses were unlikely
to be successful).
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 20 of 24

21
C. 	Evidentiary Hearing
Petitioner asks the Court to conduct an evidentiary hearing, arguing that a hearing would
"illuminate the Honorable Court to possibly correct an egregious miscarriage of justice by the
actions of [Petitioner's] counsel convincing him to plead guilty to a charge purely constructed by
the [UC]." Dkt. No. 64 at 3.
"Unless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. §
2255(b). However, "[t]he filing of a § 2255 motion does not, by itself, obligate the district court
to conduct an evidentiary proceeding." Smith v. United States, No. 1:20-CV-04195, 2020 WL
13065428, *4 (S.D.N.Y. Dec. 31, 2020), R&R adopted, 2022 WL 443631 (S.D.N.Y. Feb. 14,
2022) (citing Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977)). "'[A]n evidentiary
hearing is required on a [§] 2255 motion only when the papers on the motion, measured by the
same standards of competence and admissibility applicable to motions for summary judgment,
reveal the existence of a genuine issue of material fact.'" United States v. Sahabir, 880 F. Supp.
2d 377, 383 (N.D.N.Y. 2012) (quoting Lamberti v. United States, 22 F. Supp. 2d 60, 71 (S.D.N.Y.
1998), aff'd, 201 F.3d 430 (2d Cir. 1999)).
"An evidentiary hearing is not required 'where the allegations are insufficient in law,
undisputed, immaterial, vague, conclusory, palpably false or patently frivolous.'" Id. (quoting
United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970)); see Haouari v. United States, 510
F.3d 350, 354 (2d Cir. 2007) ("[I]n order to warrant an evidentiary hearing in the district court on
a . . . § 2255 petition, 'the application must contain assertions of fact that a respondent is in a
position to establish by competent evidence . . . . Airy generalities, conclusory assertions and
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 21 of 24

22
hearsay statements will not suffice . . . .'") (citation and internal quotation marks omitted).
"[E]ven if the motion presents factual issues, the district court has the authority to deny the
motion without a hearing when the motion, any attached exhibits, and the record of the prior
proceedings plainly show that the movant is not entitled to relief." United States v. Handford, No.
5:14-CR-0273, 2016 WL 8670498, *3 (N.D.N.Y. Oct. 25, 2016) (citing Puglisi, 586 F.3d at 214).
"In determining whether the assertions in a § 2255 motion warrant discovery or a hearing, the
court must also take into account admissions made by the defendant at his plea hearing, for
'[s]olemn declarations in open court carry a strong presumption of verity.'" Gonzalez v. United
States, 722 F.3d 118, 131 (2d Cir. 2013) (quoting Blackledge, 431 U.S. at 74).
In the present matter, the Court finds no evidentiary hearing is necessary. Based upon the
Court's review of the record, including Petitioner's plea allocution, the sentencing transcript, Mr.
Stewart's declaration, and the relevant law, the Court is persuaded that "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). Petitioner's self-serving statements which plainly contradict the record do not entitle
him to a hearing. See Stitsky v. United States, No. 06-CR-357, 2018 WL 10741470, *6 (S.D.N.Y.
Oct. 25, 2018) ("'Where, as here, a habeas court is faced with self-serving allegations that are
contradicted by a credible affirmation [from] a trial attorney, it may choose to credit the attorney
and dismiss the ineffective assistance of counsel claim without further hearings'") (quoting
Castrillo v. Breslin, No. 01-CV-11284, 2005 WL 2792399, * 13-14 (S.D.N.Y. Oct. 26 2005));
United States v. Salvagno, No. 5:02-CR-0051, 2013 WL 12364812, *7 (N.D.N.Y. July 25, 2013)
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 22 of 24

23
("Because the files and record conclusively show that the § 2255 Motions are without merit, the
Court finds that no evidentiary hearing is warranted").4
D. 	Certificate of Appealability
28 U.S.C. § 2253(c)(1) provides that "[u]nless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a
proceeding under section 2255." 28 U.S.C. § 2253(c)(1).5 A court may only issue a Certificate of
Appealability "if the applicant has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2).
Since Petitioner has failed to make such a showing with regard to any of his claims, the
Court declines to issue a Certificate of Appealability in this matter. See Hohn v. United States,
524 U.S. 236, 239-40 (1998).
III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Petitioner's motion to vacate his conviction and sentence pursuant to 28
U.S.C. § 2255 (Dkt. No. 51) is DENIED and DISMISSED; and the Court further
ORDERS that no Certificate of Appealability shall be issued in this case; and the Court
further
4 Petitioner asks that the Court "consider granting him an appointment of legal counsel" for
purposes of his § 2255 motion. See Dkt. No. 51 at 6. The Court declines. See Pena v. United
States, No. 09-CR-341, 2024 WL 2159980, *2-3 (S.D.N.Y. May 14, 2024) (setting forth the legal
standard for the appointment of counsel in connection with a § 2255 motion and declining to do
so because the petitioner failed to make "'a threshold showing of some likelihood of merit'")
(citation omitted).
5 Rule 22 of the Federal Rules of Appellate Procedure also provides that an appeal may not
proceed in such actions "unless a circuit justice or a circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1).
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 23 of 24

24
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules; and the Court further
ORDERS that the Clerk of the Court shall close Case No. 8:25-CV-1189-MAD.
IT IS SO ORDERED.
Dated: May 13, 2026
Albany, New York
Case 8:23-cr-00257-MAD Document 66 Filed 05/13/26 Page 24 of 24