Moody v. United States

• Decision Date: 06 May 2020
• Docket Number: No. 19-5015,19-5015
• Citation: 958 F.3d 485
• Parties: Christopher MOODY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

958 F.3d 485

Christopher MOODY, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 19-5015

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 6, 2020

Rehearing En Banc Denied July 1, 2020

ON BRIEF: Seth A. Mohney, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Cecil W. VanDevender, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: GUY, THAPAR, and BUSH, Circuit Judges.

THAPAR, Circuit Judge.

Christopher Moody asks this court to unwind his federal convictions. But his habeas claims never should have reached us in the first place. The district court denied Moody's habeas petition but certified some of his claims for appeal. Because reasonable jurists could not doubt that the district court properly denied relief, we vacate the certificate of appealability and dismiss the appeal.

I.

Moody pled not guilty to a number of firearms and crack-cocaine charges. At his trial, the government produced a video of Moody cooking crack on his kitchen stove and waving a handgun while he mused about the ups and downs of life in "the game" (drug trafficking). For obvious reasons, Moody tried to keep this video away from the jury. But the court ruled that most of the video was admissible, and the admissible portions went to the jury.

Moody then tried to persuade the jury that the video was filmed more than five years before his indictment, putting it outside the statute of limitations. 18 U.S.C. § 3282(a). But in the end, the jury convicted Moody on all counts. Due to prior felony drug convictions, Moody received enhanced, mandatory-minimum life sentences on several counts. He appealed, mainly on evidentiary grounds relating to the video, but this court affirmed. United States v. Moody , 631 F. App'x 392 (6th Cir. 2015).

Later, Moody raised a new set of claims on collateral review. See 28 U.S.C. § 2255. The district court found that not only was each claim meritless, most of them were also procedurally defaulted (that is, forfeited without excuse). Still, the court authorized Moody to appeal some of his claims, and this appeal followed.

II.

First, some background. For more than a century, Congress has imposed a gatekeeping process for federal habeas appeals. See Barefoot v. Estelle , 463 U.S. 880, 892 & n.3, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), superseded by statute as recognized in Slack v. McDaniel , 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under current law, before appealing a prisoner must first get a certificate of appealability. 28 U.S.C. § 2253(c)(1). And to get a certificate, a prisoner must make "a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). That means "showing that reasonable jurists could debate whether" relief should have been granted. Slack , 529 U.S. at 484, 120 S.Ct. 1595. While this standard is not overly rigid, it still demands "something more than the absence of frivolity." Miller-El v. Cockrell , 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Barefoot , 463 U.S. at 893, 103 S.Ct. 3383 ). In short, a court should not grant a certificate without some substantial reason to think that the denial of relief might be incorrect.

Crucially, in applying this standard, a court must consider not only the merits of the underlying constitutional claim but also any procedural barriers to relief. Buck v. Davis , ––– U.S. ––––, 137 S. Ct. 759, 777, 197 L.Ed.2d 1 (2017) ; Slack , 529 U.S. at 484–85, 120 S.Ct. 1595 ; see also Dufresne v. Palmer , 876 F.3d 248, 254 (6th Cir. 2017). To put it simply, a claim does not merit a certificate unless every independent reason to deny the claim is reasonably debatable .

To see how this operates in practice, consider some examples. Suppose that a claim has arguable merit (or even obvious merit) yet is plainly barred by a procedural default. That claim should not receive a certificate. E.g. , Dufresne , 876 F.3d at 255–56 ; Berry v. Warden, S. Ohio Corr. Facility , 872 F.3d 329, 334 (6th Cir. 2017). Or consider a claim that a state court previously rejected on the merits. See 28 U.S.C. § 2254(d). For that claim to warrant appeal, there must be a substantial argument that the state court's decision was not just wrong but objectively unreasonable under the stringent requirements of § 2254(d) (commonly known as "AEDPA deference"). See Miller-El , 537 U.S. at 341, 123 S.Ct. 1029 ; see also id. at 349–50, 123 S.Ct. 1029 (Scalia, J., concurring). If no fair-minded jurist (even one sympathetic to the claim) could doubt that the state-court decision was defensible, the claim should not be certified.

The same principle applies to all other procedural barriers—from exhaustion and nonretroactivity to timeliness and the second-or-successive restrictions. See generally 28 U.S.C. §§ 2244(b), (d), 2254(b) – (c), 2255(f), (h) ; Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). It also applies to alternative merits barriers: for instance, a court should not certify an ineffective-assistance-of-counsel claim where deficiency may exist but the lack of prejudice is indisputable (or vice versa). See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Again, a certificate is improper if any outcome-determinative issue is not reasonably debatable.

III.

Unfortunately, these standards have too often gone ignored. See, e.g. , Porterfield v. Bell , 258 F.3d 484, 487 (6th Cir. 2001) (noting "a disturbing lack of uniformity" in applying these standards). This case is no different. When certifying Moody's claims for appeal, the district court's opinion failed to discuss the requirements for granting a certificate or to provide any reasoning. See R. 40, Pg. ID 256 ("The court will, however, issue a certificate of appealability[.]"); id. at 257 ("The court will nonetheless grant a COA[.]"); id. at 260 ("The court will, however, grant a certificate[.]"). We cannot tell what standards governed these choices. The court may well have certified the claims before us just because they seemed better than frivolous—which is not enough. Miller-El , 537 U.S. at 338, 123 S.Ct. 1029.

The strongest evidence that the district court applied an incorrect standard (or at best misapplied the correct one) is the claims themselves. Simply put, reasonable jurists wouldn't doubt the correctness of the district court's denial of these claims. Thus, no certificate was warranted.

To see why, consider the certified claims. Those claims fall into three groups: (1) Moody was deprived of his statute-of-limitations defense (violating due process); (2) the past convictions for his sentencing enhancements weren't charged in the indictment or found by the jury (violating his rights to indictment and trial by jury); and (3) his previous lawyers failed to raise the first two claims sooner (violating his right to effective assistance of counsel).¹ See U.S. Const. amends. V, VI ; Strickland , 466 U.S. at 686, 104 S.Ct. 2052. (Note that the Strickland claims serve two functions: not only are they potential grounds for relief, they are Moody's only hope of curing the procedural default barring his other claims. See Murray v. Carrier , 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).) None should have been certified.

A.

A defendant has the right to a meaningful defense, including the right to appropriate jury instructions on a defense theory. California v. Trombetta , 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ; Barker v. Yukins , 199 F.3d 867, 875 (6th Cir. 1999). Here, Moody argues that his key defense (the statute of limitations) was effectively nullified by (1) a one-word error in the statute-of-limitations jury instruction and (2) the phrasing of the verdict form. Neither claim is substantial.

The Jury Instruction. Moody's first claim is based on a slip of the tongue. At one point in its oral instructions, the court told the jury that the government had to prove "that the crimes charged happened on or before ," not after , the relevant cutoff date. R.* 2663, Pg. ID 14272 (emphasis added).² That was obviously a mistake.

Still, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton v. McNeil , 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004). To establish such a violation, Moody must show two things: (1) the trial court's misstep made the statute-of-limitations instruction ambiguous; and (2) there is "a reasonable likelihood" (not just "a slight possibility") that the jury was actually misled. Waddington v. Sarausad , 555 U.S. 179, 190–91, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009) (cleaned up). We look at the mistake's effect in the context of the full instructions and the entire record, not "in artificial isolation." Id. at 191, 129 S.Ct. 823 (cleaned up).

When we do that, Moody's claim clearly falters. Here is the statute-of-limitations instruction in full:

The statute of limitations is a law that puts a limit on how much time the government has to obtain an indictment. No person shall be prosecuted, tried or punished for any offense unless the indictment is found within five years next after such offense shall have be[en] committed. The government filed the 11th Super[s]eding Indictment on November 13, 2013. The government must convince you beyond a reasonable doubt that the crimes charged happened on or before November 13, 2008. Thus, a conviction cannot be based upon conduct that occurred before this date.

You may consider the defendant's conduct prior to the statute of limitations to evaluate the defendant's conduct within the statute of limitations and whether the conduct within the statute of limitations establishes the defendant's guilt beyond a reasonable doubt. You cannot use any pre–statute of limitations conduct for any other purpose.

R.* 2663, Pg. ID 14272–73. Ambiguous as a whole? Hardly. To see that the errant "before" didn't spoil this instruction, just...