U.S. v. Moody, Criminal Action No. 06-204.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtSarah S. Vance
Citation622 F.Supp.2d 362
PartiesUNITED STATES of America v. Leonard MOODY.
Decision Date06 March 2009
Docket NumberCriminal Action No. 06-204.
622 F.Supp.2d 362
UNITED STATES of America
v.
Leonard MOODY.
Criminal Action No. 06-204.
United States District Court, E.D. Louisiana.
March 6, 2009.

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Matthew J. Coman, U.S. Attorney's Office, New Orleans, LA, for United States of America.

ORDER AND REASONS

SARAH S. VANCE, District Judge.


Before the Court is petitioner Leonard Moody's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court DISMISSES Claim One and Claim Two and takes Claim Three under advisement pending further development of the record.

I. BACKGROUND

On July 26, 2006, a federal grand jury charged petitioner Leonard Moody with one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). R. Doc. 6. Moody initially entered a plea of not guilty. R. Doc. 9. On October 23, 2006, the Government filed a Notice of Armed Career Criminal Sentencing Enhancement, alleging that Moody qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The ACCA provides for an enhanced sentence when a felon with three previous convictions for a "violent felony" or a "serious drug offense" illegally possesses a firearm in violation of 18 U.S.C. § 922(g). Whereas section 922(g) ordinarily carries a penalty of imprisonment for a term of no more than ten years, 18 U.S.C. § 924(a)(2), violators who meet the requirements of the ACCA face a mandatory minimum sentence of fifteen years imprisonment. See 18 U.S.C. § 924(e)(1). The Government alleged in its Notice that Moody qualified for the enhancement because he had previously been convicted of twelve counts of armed robbery and one count of attempted armed robbery in the Orleans Parish Criminal District Court.

At an in-court appearance on November 29, 2006, Moody expressed dissatisfaction with his appointed defense counsel and asked the Court to appoint new counsel. The Court granted Moody's oral motion and appointed new defense counsel. R. Docs. 24, 26, 29, 30. Shortly thereafter, Moody also retained private defense counsel. R. Doc. 32.

After requesting a series of continuances, Moody came before this Court on September 5, 2007, to change his plea to guilty as to the one count of the indictment. He did not enter into a plea agreement with the government. The Court advised Moody of the potential ACCA sentencing enhancement, and Moody indicated that he understood the enhancement and that he had discussed it with his retained defense counsel.1 Counsel also advised the

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Court that he had discussed the enhancement with his client.2 The Court then accepted Moody's plea of guilty, ordered the U.S. Probation Officer to prepare a Presentence Investigation Report (PSR), and set a date for sentencing.

At sentencing, Moody's counsel raised two objections to the PSR. First, he objected to the calculation of his criminal history level under the U.S. Sentencing Guidelines. He argued that he should have been assessed three criminal history points rather than six for his twelve armed robbery convictions. The Court overruled that objection, finding that the three extra points were properly included pursuant to U.S.S.G. § 4A1.1(f). Second, Moody objected to his classification as a career offender under U.S.S.G. § 4B1.1(a). The Court overruled that objection as well, finding: (1) that the Government sought enhancement under Guidelines section 4B1.4 rather than 4B1.1, (2) that a defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal under Guidelines section 4B1.4, and (3) that Moody qualified as an armed career criminal under both 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 because of his previous armed robbery convictions.

The Court calculated Moody's adjusted offense level to be 30 and his criminal history category to be IV, which would have ordinarily yielded a guidelines range of 135 to 168 months. Because Moody qualified for an enhanced sentence under the ACCA, however, he was subject to a mandatory minimum sentence of fifteen years (180 months). The restricted guidelines range was therefore 180 months, with a statutory minimum term of 180 months imprisonment and a maximum term of life imprisonment. The Court sentenced Moody to a term of imprisonment of 180 months. Moody did not appeal his conviction or sentence.

Moody has now filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. R. Doc. 53. He asserts three grounds on which his sentence is allegedly subject to collateral attack.

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First, he claims that "the court's erroneous adoption of a PSR guideline determination resulted in the petitioner being inappropriately sentenced as an armed career offender." R. Doc. 53 at 4. The prior armed robbery and attempted armed robbery convictions should have been counted as a single conviction rather than separate convictions, he argues, because they were "consolidated for sentencing [and] were related to one another." Id. at 15. Second, Moody claims that his defense counsel's "failure to investigate and properly challenge the [armed robbery] predicates relied upon to impose an armed career offender sentence constituted ineffective assistance of counsel in violation of the Sixth Amendment." Id. at 5. Finally, Moody claims that defense counsel's "failure to file [a] notice of appeal regarding a cognizable, non-frivolous, reviewable issue denied petitioner his right to appellate review from an unlawful sentence and effective assistance of counsel in violation of the Sixth Amendment." Id. at 7.

II. LEGAL STANDARD

Title 28, United States Code, section 2255 provides that a federal prisoner serving a court-imposed sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, only a narrow set of claims are cognizable on a section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see also United States v. Placente, 81 F.3d 555, 558 (5th Cir.1996). A claim of error that is neither constitutional nor jurisdictional is not cognizable in a 2255 proceeding unless the error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). As with the writ of habeas corpus, there are a number of pragmatic limitations on the district court's authority to grant relief under section 2255. See generally 7 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 28.9(b) (3d ed. 2007) (discussing custody requirement, procedural default, non-retroactivity, exhaustion of direct appeals, statute of limitations, successive petitions, and waiver).

When a section 2255 motion is filed, the district court must first conduct a preliminary review. "If it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion...." RULES GOVERNING SECTION 2255 PROCEEDINGS, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. RULES GOVERNING SECTION 2255 PROCEEDINGS, Rules 6-7.

After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. RULES GOVERNING SECTION 2255 PROCEEDINGS, Rule 8. Under the statute, an evidentiary hearing must be held unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). No evidentiary

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hearing is required, however, if the prisoner fails to produce any "independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir.2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir.1998)); see also United States v. Cavitt, 550 F.3d 430, 441-42 (5th Cir.2008). If the court determines that an evidentiary hearing is warranted, "the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A." RULES GOVERNING SECTION 2255 PROCEEDINGS, Rule 8(c) (emphasis added); see also United States v. Vasquez, 7 F.3d 81, 83 (5th Cir. 1993) ("The provisions of [Rule 8] are mandatory and clear. If the court holds an evidentiary hearing, counsel must be appointed for an indigent defendant.").

Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. See Wright v. United States, 624 F.2d 557, 558 (5th Cir.1980). For certain "structural" errors, relief follows automatically once the error is proved. See Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir.2003). For other "trial" errors, the court may only grant relief if the error "had substantial and injurious effect or influence" in determining the outcome of the case. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir.1999) (applying Brecht harmless error standard in a section 2255 proceeding); United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.2003) (same). If the court finds that the prisoner is...

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1 practice notes
  • United States v. London, CRIMINAL NO. 15-83-SDD-EWD
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • March 14, 2019
    ...Id. at 16. 17. Rec. Doc. No. 1001. 18. Rec. Doc. No. 1294. 19. U.S. v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). 20. U.S. v. Moody, 622 F. Supp. 2d 362, 368 (E.D. Louisiana, 2009)(quoting Wright v. U.S., 624 F.2d 557, 558 (5th Cir. 1980)). 21. U.S. v. Scruggs, 714 F.3d 258, 266 (5th Cir. ......
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  • United States v. London, CRIMINAL NO. 15-83-SDD-EWD
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • March 14, 2019
    ...Id. at 16. 17. Rec. Doc. No. 1001. 18. Rec. Doc. No. 1294. 19. U.S. v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). 20. U.S. v. Moody, 622 F. Supp. 2d 362, 368 (E.D. Louisiana, 2009)(quoting Wright v. U.S., 624 F.2d 557, 558 (5th Cir. 1980)). 21. U.S. v. Scruggs, 714 F.3d 258, 266 (5th Cir. ......

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