Moring v. United States

• Decision Date: 08 March 2016
• Docket Number: Case No. 2:12-cv-02551-JPM-dkv,Case No. 2:09-cr-20473-JPM-1
• Parties: LOUIS MORING, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

LOUIS MORING, Movant, v. UNITED STATES OF AMERICA, Respondent.

Case No. 2:12-cv-02551-JPM-dkv

Case No. 2:09-cr-20473-JPM-1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

March 8, 2016

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody ("§ 2255 Motion") filed by Movant, Louis Moring, Bureau of Prisons register number 23366-076, an inmate at the Federal Correctional Complex (Medium) in Yazoo City, Mississippi. (§ 2255 Mot., Moring v. United States, No. 2:12-cv-02551-JPM-dkv (W.D. Tenn.), ECF No. 1; see ECF No. 1-1.) For the reasons that follow, the Court DENIES the § 2255 motion.

I. BACKGROUND

A. Case Number 09-20473

On November 17, 2009, a federal grand jury returned a one-count indictment against Moring, charging that on or about May 26, 2009, Moring "unlawfully, knowingly, and intentionally possess[ed] with the intent to distribute less than 5 grams of a mixture and substance containing a detectable amount of cocaine base, a Schedule II controlled substance as classified by [21 U.S.C. § 812], all in violation of [21 U.S.C. § 841(a)(1)]." (Indictment, United States v. Moring, No. 2:09-cr-20473-JPM-1 (W.D. Tenn.), ECF No. 1.) On August 24, 2010, a federal grand jury returned a one-count superseding indictment against Moring, charging that Moring "unlawfully, knowingly, and intentionally possess[ed] with the intent to distribute less than 5 grams of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance as classified by [21 U.S.C. § 812], in violation of [21 U.S.C. § 841(a)(1)]." (Superseding Indictment, id., ECF No. 34 (emphasis added).)

Pursuant to a written Plea Agreement, Moring appeared before Magistrate Judge Tu M. Pham, on September 1, 2010, to plead guilty to the sole count of the Superseding Indictment. (Min. Entry, id., ECF No. 39.) On March 17, 2011, Moring made an oral motion in court to withdraw his guilty plea (Min. Entry, id., ECF No. 51), followed by a written Motion to Withdraw Guilty Plea on April 10, 2011 (Mot. to Withdraw Guilty Plea, id., ECF No. 57). On July 5, 2011, the Court denied Moring's Motion to Withdraw and directed the parties to prepare for sentencing on the sole count of the Superseding Indictment. (Order Denying Mot. to Withdraw Guilty Plea, id., ECF No. 79; Order Directing Parties for Sentencing, id., ECF No. 81.)

On October 15, 2010, the United States Probation and Pretrial Services prepared a presentence investigation report ("PSR"), which recommended a total offense level of 29 and criminal history category of VI based on Moring's status as a career offender. (PSR ¶¶ 23, 25, 47, 81.) The PSR calculated Moring's advisory guideline range at 155 to 188 months of imprisonment. (Id. ¶ 81.) The PSR was supplemented on November 22, 2010, but the total offense level, criminal history category, and guideline range remained the same. (See First Addendum to the PSR.)

On July 13, 2011, the PSR was supplemented a second time. (Second Addendum to thePSR.) The second addendum stated that Moring had submitted a motion to withdraw his guilty plea on June 17, 2011.¹ (Id. at 1; Mot. to Withdraw Guilty Plea, United States v. Moring, No. 2:09-cr-20473-JPM-1 (W.D. Tenn.), ECF No. 57). The second addendum stated that if the Court found Moring's motion to withdraw to be inconsistent with the Acceptance of Responsibility credit, the total offense level would be 32, the criminal history category would be VI, and the guideline range would be 210-262 months. (Second Addendum to the PSR at 1.) The second addendum further stated that the Government "indicated that a motion for the third point for Acceptance of Responsibility would not be filed in this case." (Id.) As calculated by the second addendum, if the Court applied a two-level reduction for Acceptance of Responsibility, the total offense level would be 30, the criminal history category would be VI, and the guideline range would be 168-210 months. (Id.)

At a hearing on July 18, 2011, the Court determined that the offense level was 30, the criminal history category was VI, and the guideline range was 168-210 months. (Sentencing Hr'g Tr. 30:9-31-4, United States v. Moring, No. 2:09-cr-20473-JPM-1 (W.D. Tenn.), ECF No. 99.) The Court sentenced Moring to a term of imprisonment of 180 months, three years of supervised release, and a $100 special assessment. (Min. Entry, id., ECF No. 83; J. in Criminal Case, id., ECF No. 84.) Moring's supervised release conditions required that he receive drug testing and treatment, comply with DNA collection, participate in vocational training, and obtain his GED. (J. in a Criminal Case at 4, id., ECF No. 84.) The Court recommended that Moring be allowed to participate in the 500-hour intensive drug rehabilitation program while in thecustody of the Bureau of Prisons. (Id. at 2.) Judgment was entered on July 20, 2011. (See id.)

On December 5, 2011, Moring filed a pro se 18 U.S.C. § 3582(c)(2) Motion for Sentence Reduction in the criminal case, arguing that his sentence should be reduced "to reflect an 18 to 1 crack/powder cocaine ratio, based on the retroactively applicable [Amendment 750 of the Fair Sentencing Act of 2010 ("FSA")]." (Mot. for Sentence Reduction at 1, United States v. Moring, No. 2:09-cr-20473-JPM-1 (W.D. Tenn.), ECF No. 89.) On May 24, 2013, Moring filed a pro se Amended 18 U.S.C. § 3582(c)(2) Motion for Sentence Reduction, stating that the United States Court of Appeals for the Sixth Circuit's holding in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013)² requires that his sentence be reduced. (Am. Mot. for Sentence Reduction, id., ECF No. 92.) On December 2, 2013, the Court entered an Order Denying Moring's motions for sentence reduction, holding that Moring was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). (Order Den. Mots. for Sentence Reduction, id., ECF No. 94.)

B. Case Number 12-2551

On July 10, 2012, Moring filed his pro se § 2255 Motion, in which he raises a single issue in support of his claim for relief from his sentence. (§ 2255 Mot., Moring v. United States, No. 2:12-cv-02551-JPM-dkv (W.D. Tenn.), ECF No. 1.) Moring argues that his sentence was entered approximately one year after the FSA was signed into law, and, therefore,his sentence should be vacated and remanded for resentencing pursuant to two cases³ decided as one in Dorsey v. United States, 132 S. Ct. 2321 (2012). (Id. at 5.)

On May 28, 2013, the Court directed the Government to respond to the § 2255 Motion. (Order Directing Gov't to Respond, id., ECF No. 5.) On May 30, 2013, Moring filed a Motion for Due Process, requesting that the Court address his § 2255 Motion and issue a show cause order to Respondent to file a response. (Mot. for Due Process, id., ECF No. 6.) On June 4, 2013, the Court entered an order denying the Motion for Due Process as moot, stating that the motion was unnecessary because the United States had previously been directed to file its response. (Order Den. as Moot Mot. for Due Process, id., ECF No. 7.)

On June 18, 2013, the Government filed its Response to the § 2255 Motion, arguing that "[t]he relief that Moring seeks must be denied because his conviction was not for possession of crack cocaine. Moring pleaded guilty to the Superseding Indictment's charge of possession of powder cocaine." (Resp. to § 2255 Mot. at 4, id., ECF No. 4.) On October 30, 2013, Moring filed his Reply, in which Moring contends that he was sentenced for possession and intent to distribute crack cocaine, not powder cocaine. (Reply, id., ECF No. 9.) Specifically, Moring states that,

In its Response, the Government quotes an exchange between the Court, itself, and Petitioner's former counsel pertaining to a discrepancy between Petitioner's original and superseding indictment . . . . However, what the Government fails to mention is that later during the subsequent sentence hearing, the Court explicitly states that it will instead sentence Petitioner based on his possession of crack cocaine.

(Id. at 2.)

On August 27, 2015, Moring filed a Motion to Supplement, asserting that Johnson v. United States, 135 S. Ct. 2551 (2015) had created a change in the law, which should allow him to supplement his motion under Davis v. United States, 417 U.S. 333 (1974). (Mot. to Suppl., id., ECF No. 12.) On August 31, 2015, the Court directed the Government to respond to the Motion to Supplement. (Order Directing Gov't to Respond, id., ECF No. 13.) On September 9, 2015, the Government filed its Response to the Motion to Supplement. (Resp. to Mot. to Suppl., id., ECF No. 15.) On September 23, 2015, Moring filed a Reply to the Government's Response. (Reply to Resp. to Mot. to Supplement, id., ECF No. 16.) The Court granted the Motion to Supplement on February 1, 2016 (Order Granting Mot. to Suppl., id., ECF No. 18), and directed the Government to respond on the merits on February 18, 2016 (Order Directing Gov't to Respond, id., ECF No. 19). The Government filed its response on February 26, 2016. (Resp. on the Merits, id., ECF No. 21.)

II. THE LEGAL STANDARD

A. § 2255 Motion

Pursuant to 28 U.S.C. § 2255(a),

[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.

"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: '(1) an error of...