Moore v. United States, CIVIL ACTION NO. 13-00047-KD-B

CourtUnited States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
Writing for the CourtKRISTI K. DuBOSE
Decision Date21 March 2014
Docket NumberCRIMINAL ACTION NO. 11-00229-KD-B,CIVIL ACTION NO. 13-00047-KD-B




DONE and ORDERED: March 21, 2014


This action is before the Court on the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("the Petition") (Doc. 661) and supporting affidavit (Doc. 67-1) filed by Petitioner Richard Leon Moore ("Moore"), a federal prisoner proceeding pro se;2 the Government's Response in opposition (Doc. 74); and Moore's Reply (Doc. 75) and Supplemental Reply (Doc. 79) to the Response. Upon consideration, the Court finds that Moore's claim regarding counsel's alleged failure to file an appeal is due to be set for an evidentiary hearing pursuant to § 2255(b) and Rule 8 of the Federal Rules Governing Section 2255 Cases in the United States District Courts. The Court further finds that all other claims in the Petition are due to be DENIED without an evidentiary hearing, as "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief " on these claims. § 2255(b).

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I. Procedural History

On August 25, 2011, a Grand Jury of this district returned an indictment against Moore and a co-defendant. (Doc. 1). The indictment alleged eight counts against Moore. Count One alleged a violation of 21 U.S.C. § 846 - specifically, conspiracy to violate 21 U.S.C. § 841(a)(1) by possessing with intent to distribute a mixture and substance containing a detectable amount of cocaine ("crack cocaine"), "[b]eginning on or about November 1, 2010, and continuing until on or about the date of the return of th[e] indictment." Count One also charged that "[t]he quantity of crack cocaine involved in the conspiracy exceeded 28 grams[,]" thus making Moore "subject to the penalty provisions of Title 21, United States Code, Section 841(b)(1)(B)." (Doc. 1 at 1-2). The remaining seven counts alleged various violations of § 841(a)(1) involving crack cocaine occurring at various times during the period of the alleged conspiracy.

At Moore's initial appearance and arraignment on September 14, 2011, Moore entered a plea of not guilty, and attorney W. Gregory Hughes ("Hughes"), a member of this district's CJA panel, was appointed to represent him. (Docs. 17-19). On October 7, 2011, Moore filed his notice of intent to plead guilty to Count One (Doc. 28), along with a Plea Agreement and Factual Resume (Docs. 29-303). On October 11, 2011, the Government filed an Enhancement Information pursuant to 21 U.S.C. § 851(a). (Doc. 34 [duplicate at Doc. 35]). On October 18, 2011, Moore, accompanied by counsel, pled guilty to Count One of the indictment. (Doc. 37).

On February 7, 2012, prior to sentencing, attorney Bruce Maddox ("Maddox") entered a notice of appearance on behalf of Moore. (Doc. 41). Hughes accordingly moved for leave to withdraw from further representation of Moore (Doc. 42), which was granted on February 10, 2012 (Doc. 43). The Probation Office entered a Presentence Investigation Report for Moore on

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April 11, 2012. (Docs. 55-58). On June 13, 2012, Moore entered his position regarding sentencing factors enumerated in the Presentence Investigation Report, stating: "[A]lthough he has objections to certain factual matters in the presentence report, none of those objections, if sustained, would alter either the Offense Level calculation or the Criminal History Category. He therefore does not object to the ultimate calculations of the Presentence Investigation Report." (Doc. 62).

On June 15, 2012, the Court sentenced Moore to 188 months imprisonment, followed by 6 years of supervised release. (Doc. 64). On June 19, 2012, Moore filed a Notice of Non-Appeal with the Court. (Doc. 63). No direct appeal was taken. On January 23, 2013, Moore filed the present Petition (Doc. 66).4

II. Analysis

a. Applicable Legal Principles

1. Habeas Generally

"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

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otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence . . . If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(a)-(b).

Habeas relief is an extraordinary remedy which "may not do service for a[] [direct] appeal." United States v. Frady, 456 U.S. 152, 165 (1982). A petitioner who has waived or exhausted his right to appeal is presumed to stand "fairly and finally convicted." Id. at 164. "[U]nless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited . . . [A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (citation and quotation omitted). See also Burke v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998) ("Nonconstitutional claims can be raised on collateral review only when the alleged error constitutes a fundamental defect which inherently results in the miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.") (citations and internal quotations omitted). "A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it." Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). However, the Court "liberally construe[s] petitions filed pro se." Id.

Moore took no direct appeal of the conviction and sentence in his underlying criminal case. In general, claims not raised on direct appeal may not be considered on collateral attack.

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E.g., Massaro v. United States, 538 U.S. 500, 504 (2003). A petitioner can, nevertheless, overcome his procedural default of claims not raised on direct appeal:

To obtain collateral relief on errors that were not raised on direct appeal, [a petitioner] "must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). This standard is "a significantly higher hurdle than would exist on direct appeal." Id. at 166, 102 S. Ct. 1584 . . .
. . . "Constitutionally ineffective assistance of counsel can constitute cause" under Frady. Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir. 2000). "In order to do so, however, the claim of ineffective assistance must have merit." United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.2000).

Brown v. United States, 720 F.3d 1316, 1333 (11th Cir. 2013). See also Cross v. United States, 893 F.2d 1287, 1289 (11th Cir. 1990).5

However, "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Massaro, 538 U.S. at 509. Indeed, "in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance." Id. at 504.

2. Ineffective Assistance of Counsel

The Sixth Amendment gives criminal defendants the right to effective assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86 (1984). To prevail on a claim of ineffective assistance of counsel, the petitioner must demonstrate: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that he suffered prejudice as a result of that deficient performance. Strickland, 466 U.S. at 687-88. Thus, a petitioner must establish both prongs of the Strickland test. Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). With respect to the deficient performance prong, the petitioner

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must show that his counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Of course, there is a strong presumption that counsel's conduct fell within the range of reasonable professional assistance. Id. at 689. Counsel's performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Id

In addition to deficient performance, a petitioner asserting an ineffective assistance of counsel claim is also required to demonstrate prejudice. Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir. 2006). Prejudice is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. It is not enough for the...

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