Moore v. United States
| Decision Date | 30 September 2020 |
| Docket Number | 3:12-cv-00744-RJC,3:05-cr-00028-RJC-CH-1,3:10-cv-00025-RJC |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | ARCHAVIS BRIANN MOORE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under 28 U.S.C. § 2255 and Alternative Petitions for Relief under 28 U.S.C. § 2241, Writ of Coram Nobis, and Writ of Audita Querela [CV Doc. 1]1 and the Government's Motion to Dismiss Successive Petition [CV Doc. 5]. Also before the Court are Petitioner's Motion to Amend Motion to Vacate under 28 U.S.C. § 2255 and Petitioner's second Motion to Vacate under 28 U.S.C. § 2255 in Civil Case No. 3:10-cv-00025-RJC [Case No. 3:10-cv-25, Docs. 1, 2]. Petitioner is represented by Ann Hester of the Federal Defenders of Western North Carolina.
On January 27, 2005, Petitioner Archavis Briann Moore ("Petitioner") wascharged in a Bill of Indictment with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count One); one count of possession with intent to distribute cocaine base and marijuana, in violation of 21 U.S.C. § 841 (Count Two); and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count Three). [CR Doc. 1: Bill of Indictment]. The Government notified the Petitioner and the Court in accordance with 21 U.S.C. § 851 that it intended to seek an enhanced penalty based on Petitioner's prior conviction for a "felony drug offense." This offense was Petitioners conviction "on or about July 25, 2001 for the felony, Possession With Intent to Sell and Deliver Marijuana and Felony Possession of Cocaine, in the Superior Court of Mecklenburg County, North Carolina." [CR Doc. 2: Information Pursuant to Title 21, U.S.C. § 851]. After a jury trial, Petitioner was found guilty on all three counts of the Indictment. [CR Doc. 44: Verdict Form].
Prior to sentencing, the probation officer completed a Presentence Report, in which the probation officer found Petitioner's Total Offense Level (TOL) to be 34, which included a career offender enhancement pursuant to U.S.S.G. § 4B.1, and a Criminal History Category of VI, as dictated by Petitioner's career offender status. [CR Doc. 109 at ¶¶ 26, 28, 44]. The statutory maximum term of imprisonment for Count One was 10 years, 18 U.S.C. § 922(g)(1). [Id. at ¶ 64]. The statutory maximum term of imprisonment for Count Two, given the career offender status, was 30 years, 21 U.S.C. §§ 851 and 841(b)(1)(C). [Id.]. Finally, the mandatory minimum term of imprisonment for Count Three was not less than five years to life, to be servedconsecutively to the other terms imposed, 18 U.S.C. § 924(c)(1). Pursuant to U.S.S.G. § 4B1.1(c), the guideline range for Counts One, Two, and Three was found to be 360 months to life. [CR Doc. 109 at ¶¶ 30, 31, 64].
Petitioner objected to the application of the career offender status. [CR Doc. 109 at 16: Addendum to PSR]. The probation officer summarized Petitioner's argument on this objection as follows:
He contends that he does not have two prior convictions [for Robbery and Kidnaping] that meet the statutory requirement of USSG §4B1.1(a). The defendant contends that his two prior convictions used to determine his career offender status are related cases. He further contends that his conviction for Possession with Intent to Sell and Deliver Marijuana is not punishable by more than one year imprisonment and therefore does not meet the definition of "controlled substance offense" pursuant to USSG § 4B1.1.
[Id.]. Defendant also objected to the Criminal History Category of VI, arguing that without the improper career offender designation, his Criminal History Category should have been IV. [Id.]. Defendant also objected to the TOL calculated by the probation officer, contending that based on his non career offender status, his guideline imprisonment range should have been 92 to 115 months based on a total offense level of 26 and Criminal History Category of IV. [Id.]. The probation officer responded, noting that [Id. at 16-17].
Petitioner's sentencing hearing was set for August 28, 2006. After extensiveargument, the Court ruled that, under United States v. Harp, 406 F.3d 242 (4th Cir. 2005), the career offender designation applied to Petitioner. [CR Doc. 72: Sentencing Tr.]. The Court, however, continued the hearing so that the parties could brief their positions on an appropriate sentence for Petitioner with the career offender status. [Id. at 19-20]. The parties submitted their briefs [CR Docs. 52, 53], and the hearing was resumed a month later. In sentencing Petitioner, the Court provided its analysis of the applicable sentencing scheme as follows:
[CR Doc. 64-1 at 6-7: Second Sentencing Tr.]. With that backdrop, the Court sentenced Petitioner to a term of imprisonment of 120 months on Count One; a term of 300 months on Count Two, to run concurrently with the term imposed on Count One; and a term of 60 months on Count Three, to be served consecutively to the terms imposed in Counts One and Two, for a total term of imprisonment of 360 months. [CR Doc. 54 at 2: Judgment]. Judgment on Petitioner's conviction was entered on September 29, 2006. [Id.].
Petitioner appealed his conviction and sentence to the Fourth Circuit Court of Appeals on several grounds. In pertinent part, Petitioner argued that he was improperly sentenced as a career offender because his marijuana conviction was not a qualifying felony drug conviction under North Carolina's structured sentencing statute. United States v. Moore, 304 Fed. App'x 224, 226 (4th Cir. Dec. 29, 2008). On appeal, Petitioner acknowledged that his argument was negated by Harp, but asserted that Harp should be reconsidered. Id. at 226-27. The Fourth Circuit was unpersuaded and upheld this Court's determination of Petitioner's career offender status. Id. at 227.
On January 21, 2010, Petitioner timely filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. [Case No. 3:10-cv-25, Doc. 1]. Petitioner stated several grounds for relief in this motion, including: (1) "ineffective assistanceof counsel for failing to file suppression hearing;" (2) counsel failed "to present fruit of the poisonous tree as to evidence of on illegal search;" (3) "the US Supreme Court instructs district court to elicit fully articulated objections and the grounds upon which any objection is based after imposing sentence;" and (4) "counsel failed to request video evidence of the traffic stop and the illegal search." [Id. at 4-8]. In support of his third ground for relief, Petitioner states, counsel should have known that the court should elicit fully articulated objections. Had counsel made these appropriate objection[s,] counsel could have raised many issues including the illegal sentence of 360 months." [Id. at 7].
On May 11, 2010, before initial review of Petitioner's motion was conducted, Petitioner filed a motion for leave to amend his original § 2255 motion to vacate, together with his proposed amendment. [Id., Doc. 2]. In his amendment, Petitioner provided a very detailed recitation of alleged facts related to the first, second, and fourth grounds for relief presented in his original motion. [See id. at 1-5]. Petitioner also purported to assert two additional grounds for relief. In his first additional ground for relief, Petitioner asserts another claim of ineffective assistance of counsel:
Counsel failed to make objection upon Movant requesting counsel to object to his prior conviction(s) used under 4B1.1 Career Offender did not exceed one year and one month where Movant received suspended term of imprisonment to probation and should not have counted to qualify Movant as a Career offender when Movant did not serve a term of imprisonment pursuant to 4A1.1.
[Id., Doc. 2 at 6]....
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