United States v. Thomas
Opinion of the Court
ORDER
Terry Thomas is serving a 360-month sentence on his federal convictions for trafficking drugs in 1999. In January 2014 he filed this action relying on a provision of the Innocence Protection Act of 2004, Pub.L. 108-405, § 411, 118 Stat. 2260, 2279-83 (codified at 18 U.S.C. § 3600). Thomas wanted the district court to compel the government to produce for post-conviction DNA testing the plastic bags that contained the drugs introduced at trial. When the government responded that the drug evidence had been destroyed in 2010, the district court denied Thomas’s motion. We affirm that decision.
Thomas was charged with conspiracy and a substantive count of possessing heroin and crack with intent to distribute. See 21 U.S.C. §§ 841(a)(1), 846. At his jury trial in 2005, several Chicago police officers testified that four times in 1999 they had watched Thomas orchestrating drug sales in a south-side neighborhood. On two of those occasions the officers had seen Thomas yelling “Rocks!” and “Blows!” to passing motorists (slang for crack cocaine and heroin). Whenever a car stopped, he would direct the driver to a woman waiting to take money in exchange for drugs (though none were recovered). On a third occasion, the officers had witnessed Thomas engaging in similar conduct near an alley where people were forming a line. He was detained but released when a search turned up no drugs. Finally, in November 2009, the officers had observed Thomas with two other men who were selling drugs in an alley. When Thomas had appeared, the officers recounted, he pulled a large plastic bag from behind some shrubs and withdrew smaller bags of crack and heroin to replenish a cohort’s stock. Thomas was quickly arrested (carrying $190), but analysis of the large and smaller bags did not reveal any latent prints suitable for comparison. Defense counsel argued that Thomas had been framed, and while Thomas did not
In asking for DNA testing, Thomas asserted that the plastic bags should be subjected to “touch DNA analysis,” a technique developed early last decade which allows analysis of just “seven or eight” cells from the outermost layer of skin. See What is touch DNA?, Soientific American, http://www.scientificamerican. com/article/ experts-touch-dna-jonbenet-ramsey/ (last visited Jan. 23, 2015); see generally Angela L. Williamson, Touch DNA: Forensic Collection and Application to Investigations, 18 J. Assoo. Crime Soene Reconstruction 1 (2012), available at www.acsr.org/wp-content/uploads/2012/ 01/Williamson.pdf (last visited Jan. 23, 2015). Section 3600 imposes 10 requirements before postconviction DNA testing will be authorized, and Thomas needed to satisfy all of those requirements. See 18 U.S.C. § 3600(a); United States v. Fields, 761 F.3d 443, 481 (5th Cir. 2014); United States v. Pitera, 675 F.3d 122, 127-28 (2d Cir. 2012); United States v. Jordan, 594 F.3d 1265, 1268 (10th Cir. 2010); United States v. Fasano, 577 F.3d 572, 575 (5th Cir. 2009). In his motion he asserted that he is “actually innocent” of the crimes of conviction, see 18 U.S.C. § 3600(a)(1)(A), (6)(B), and that this extremely sensitive DNA test will show that he never handled the plastic bags. According to Thomas, proof that his DNA is absent from bags will make it reasonably probable that he did not commit the offenses, see id. § 3600(a)(8)(B), because the bags were the only physical evidence in the case. He further asserted that this theory is consistent with his trial defense that he was framed by Chicago police. See id. § 3600(a)(6)(A). Thomas conceded that his motion was presumptively untimely because it was not filed within 60 months of the enactment of § 3600 in 2004. See id. § 3600(a)(10)(A). But he argued that he rebutted this presumption by showing good cause and because a manifest injustice would result without testing. See id. § 3600(a)(10)(B)(iii), (iv). We haven’t before reviewed a request for DNA testing under this statute, but other circuits have concluded that whether a person is entitled to DNA testing is a legal question subject to de novo review and that underlying factual findings are reviewed only for plain error. See Pitera, 675 F.3d at 128; Fasano, 577 F.3d at 575.
Thomas’s assertions about the usefulness of DNA testing do not matter if there is nothing to test, as the district court observed. And, indeed, on appeal Thomas appears to have abandoned his § 3600 claim entirely and now asserts that the destruction of the bags violated 18 U.S.C. § 3600A, a separate provision of the Innocence Protection Act that requires preservation of certain “biological evidence.” Thomas also contends that the government violated his right to due process by destroying the plastic bags. These contentions were not made in the district court, however, and thus are not properly before us. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012); Economy Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir. 2008).
There is also the issue of delay. Thomas argues that the presumption of untimeliness arising from filing his motion 107 months after his conviction and 111 months after § 3600 was enacted is rebutted by his showing of good cause and that a manifest injustice would result without testing. Absent “good cause” for not acting sooner or a showing of “manifest injustice,” Thomas was required to act within the later of 36 months after conviction (i.e., by February 2008) or 60 months of § 3600’s enactment (i.e., by October 30, 2009). See 18 U.S.C. § 3600(a)(10)(A). He missed these deadlines by a longshot, and even if the plastic bags were still available for testing, he does not give us any reason to believe that manifest injustice would occur without analyzing them. And Thomas’s contention that he has shown good cause because he did not know about touch DNA until May 2013 when his sister alerted him to it is unpersuasive; a prisoner’s belated discovery of a decade-old DNA technique that was known when his case went to trial is not “good cause” as contemplated by § 3600.
AFFIRMED.
. Section § 3600A requires the government to preserve "biological evidence," subject to certain limited exceptions, so long as the "defendant is under a sentence of imprisonment.” Yet, even if Thomas had made a claim under this statute, that claim would have been with
Reference
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- United States v. Terry THOMAS
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- 2 cases
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