U.S. v. Moore, 80-2034

• Decision Date: 25 August 1981
• Docket Number: No. 80-2034,80-2034
• Citation: 656 F.2d 378
• Parties: UNITED STATES of America, Appellee, v. Russell Conwell MOORE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 378

656 F.2d 378

UNITED STATES of America, Appellee, v. Russell Conwell MOORE, Appellant.

No. 80-2034.

United States Court of Appeals,

Eighth Circuit.

Aug. 25, 1981.

Thomas K. Berg, U. S. Atty., Richard E. Vosepka, Asst. U. S. Atty., D. Minn., Minneapolis, Minn., for appellee.

Russell C. Moore, pro se.

Robert C. Evenstad, Edina, Minn., for appellant.

Before BRIGHT, Circuit Judge, GIBSON, Senior Circuit Judge, and HENLEY, Circuit Judge.

PER CURIAM.

Russell Conwell Moore, pro se, appeals the denial of habeas corpus relief under 28 U.S.C. § 2255 (1976) and the refusal of the trial judge to recuse himself under 28 U.S.C. § 455 (1976). Moore pled guilty to and was convicted of one count of interstate transportation of stolen property, 18 U.S.C. § 2314 (1976), one count of interstate transportation of stolen securities, 18 U.S.C. § 2314 (1976), and one count of bail jumping, 18 U.S.C. § 3150 (1976).

The trial court, Judge Miles Lord presiding, sentenced Moore to the maximum time in prison allowable under the statutes, ten years for the first two violations and five years for the third, to be served consecutively, for a total of twenty-five years' imprisonment. The trial judge did not impose any fines upon Moore, although substantial fines are allowable for these violations.

On March 10, 1980, Moore filed a habeas petition and recusal motion with the trial court. Judge Lord referred the matter to Magistrate McNulty for a report and recommendation. Moore alleged that Judge Lord should have recused himself because of possible bias on the part of Judge Lord against the mining industry. Moore's father is the president of a mining company. Moore also claimed that his guilty plea was involuntary, and therefore he should be allowed to withdraw the plea or the conviction should be set aside. Finally, Moore claimed that his sentence was illegally imposed because it was too severe and based on improper considerations. On August 13, 1980, Magistrate McNulty filed his report and recommendation in a twenty-two page memorandum decision in which he concluded that Moore's petition was without merit. On September 11, 1980, Judge Lord, upon the basis of the magistrate's report and recommendation, denied all of Moore's contentions and dismissed the petition and motion.

We have carefully studied the record, including the magistrate's written memorandum decision and the arguments of Moore on this appeal. We find no merit in Moore's arguments, and accordingly affirm the denial of the habeas petition and recusal motion on the basis of Magistrate McNulty's decision, pursuant to Rule 14 of the rules of this court.

We do address briefly, however, Moore's allegation that the district court imposed a severe sentence upon him because of his possible involvement in the disappearance of the victim of the securities theft. First, we note that "(u) nder very limited circumstances, a prisoner may utilize 28 U.S.C. § 2255 to attack a sentence apparently legal on its face." Kortness v. United States, 514 F.2d 167, 170 (8th Cir. 1975). Second, the duration of imprisonment imposed by the trial court may not be attacked in a section 2255 proceeding for its severity if the sentence is within statutory limits. Putt v. United States, 363 F.2d 369, 370 (5th Cir.), cert. denied, 385 U.S. 962, 87 S.Ct. 403, 17 L.Ed.2d 307 (1966); see Houser v. United States, 508 F.2d 509, 516 & n.52 (8th Cir. 1974).

The only contention that Moore may properly raise on appeal with regard to the length of his sentence is one alleging that the trial court relied upon improper factors in sentencing him. Moore, however, has not shown that facts in the record demonstrate that Judge Lord considered the disappearance of the securities theft victim in his sentencing. See Cochran v. United States, 567 F.2d 1288, 1289 (5th Cir. 1978). Magistrate McNulty specifically found that Judge Lord would not have been justified in considering the victim's disappearance. Magistrate's Memorandum Decision and Recommendation at 20. Judge Lord, on the basis of the Magistrate's report, denied Moore's petition. The circumstances of Moore's criminal charges, including the bail jumping, are aggravated and substantial. We cannot say on this record that Judge Lord abused his discretion in rendering maximum sentences. Accordingly, we affirm the judgment of the district court.

BRIGHT, Circuit Judge, dissenting.

The trial judge in this case sentenced Moore to the maximum prison sentence of twenty-five years ten years for interstate transportation of stolen property; ten years consecutively for interstate transportation of stolen securities; and five years consecutively for bail jumping. The sentencing judge gave no explanation for imposing this heavy sentence upon a fifty-four-year-old man with no prior criminal record.

At the time of sentencing, authorities considered Moore the principal suspect in...