United States v. D-6 Leonard "bo" Moore

• Decision Date: 27 September 2018
• Docket Number: Case No. 06-20465
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. D-6 LEONARD "BO" MOORE, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

UNITED STATES OF AMERICA, Plaintiff, v. D-6 LEONARD "BO" MOORE, Defendant.

Case No. 06-20465

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 27, 2018

Honorable Nancy G. Edmunds

OPINION AND ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT HIS SENTENCE [2841]

Now before the Court is Defendant-Petitioner Leonard "Bo" Moore's¹ motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Defendant argues (1) his legal counsel failed to challenge extraneous language in the indictment, failed to raise a Rosemond challenge, failed to seek acquittal on Count 1 (Substantive RICO), and failed to challenge duplicitous charging, (2) that his conviction on Count 9 (Assault with a Dangerous Weapon in Aid of Racketeering) is not a "crime of violence" for the purposes of his sentencing in Count 33 (Use of a Firearm in Relation to Count 9, a violation of 18 U.S.C. § 924(c)), and (3) that the Court violated Alleyne resentencing him in excess of the five-year mandatory minimum for his § 924(c) conviction. Because Defendant's legal counsel was neither ineffective nor did his counsel's actions prejudice him, because Defendant's "crime of violence" claim fails on the merits, and because the Sixth Circuit hasalready expressly rejected Defendant's Alleyne argument, Defendant's § 2255 motion is DENIED.

I. Background

Following a month-long trial, a jury convicted Moore on six counts:

• Count 1: Substantive RICO, in violation of 18 U.S.C. § 1962(c);

• Count 2: RICO Conspiracy, in violation of 18 U.S.C. § 1962(d);

• Count 9: VICAR: Assault with a Dangerous Weapon in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a)(3);

• Count 15: Conspiracy to Transport Stolen Property, in violation of 18 U.S.C. §§ 2312, 371;

• Count 19: Drug Conspiracy, in violation of 21 U.S.C. §§ 841, 846;

• Count 33: Use of a Firearm During and in Relation to Count 9, in violation of 18 U.S.C. § 924(c).

(Dkt. 1676.)

This Court sentenced Defendant to 108 months on Counts 1, 2, and 9, to run concurrently; 108 months on Counts 15 and 19, to run concurrently; and 10 years on Count 33, to run consecutively. (Dkt. 2159.) This produced a total sentence of 228 months.

On direct appeal, the Sixth Circuit affirmed the convictions but remanded the matter for resentencing on two bases. United States v. Donovan, 539 F. App'x 648, 661-62 (6th Cir. 2013). First, the court held that, due to an error in the jury instructions and the absence of a special verdict form, Defendant should be resentenced on Count 19 (Drug Conspiracy) with a statutory maximum of 60 months. Id. at 652-53. Second, the Sixth Circuit held that an intervening Supreme Court decision, Alleyne v. United States, 133 S.Ct. 2151 (2013), mandated resentencing on Count 33 (violation of 18 U.S.C. § 924(c)). Id. at 656.

At resentencing, this Court sentenced Defendant to 108 months on Counts 1, 2, and 9, to be served concurrently; 60 months on Counts 15 and 19, to be served concurrently; and 8 years on Count 33, to be served consecutively. (Dkt. 2575.) This left Defendant with a new total sentence of 204 months. Defendant again appealed, and the Sixth Circuit affirmed. United States v. Moore, 634 F. App'x 483 (6th Cir. 2015).

Now Defendant moves under 28 U.S.C. § 2255, asserting six bases for relief. In Grounds One, Three, Five, and Six, he maintains that he received ineffective assistance of counsel. In Ground Two, he challenges the sentence he received for Count 33 (violation of 18 U.S.C. § 924(c)), arguing that his Count 9 conviction (Assault with a Dangerous Weapon) was not a "crime of violence" under § 924(c). In Ground Four, he claims that this Court violated Alleyne by resentencing him to eight years for his § 924(c) conviction, in excess of the five-year mandatory minimum.

II. Applicable Standard

Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." To prevail on the motion, Defendant must show "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).

"It is well-established that a § 2255 motion 'is not a substitute for direct appeal.'" Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (citations omitted). "[C]laims that couldhave been raised on direct appeal, but were not, will not be entertained via a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is 'actually innocent' of the crime." Id. (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). And "it is equally well settled that a § 2255 motion may not be employed to relitigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances, such as an intervening change in the law." Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999).

III. Analysis

A. Ineffective Assistance of Counsel

To succeed on an ineffective assistance of counsel claim, a § 2255 movant must show that his counsel's performance was both deficient and prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a defendant must "show[] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Phrased differently, a defendant must demonstrate that his counsel's representation "fell below an objective standard of reasonableness." Id. at 688. In application, the standard is "highly deferential, and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Mallett, 334 F.3d at 497 (quoting Strickland, 466 U.S. at 689).

To demonstrate prejudice, Defendant must show "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. "A reasonable probability is a probability sufficient toundermine confidence in the outcome." Id. The fundamental question is whether the proceeding was "fundamentally unfair or unreliable; a court should not focus the analysis on the outcome." Kinnard v. United States, 313 F.3d 933, 935 (6th Cir. 2002).

1. Failure to Challenge Extraneous Language in the Indictment

In Ground One, Defendant argues that his trial counsel was ineffective for failing to challenge extraneous language in the indictment's charged drug conspiracies. The Government acknowledges the extraneous language but responds that the extra language was not prejudicial and that Moore's trial attorney appropriately declined to challenge it because such a challenge would have been futile.

When evaluating a claim under Strickland, the Court may begin with the prejudice prong when it is dispositive. See Baze v. Parker, 371 F.3d 310, 321 (6th Cir. 2004) ("We do not need to address the question of competence, however: '[I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. . . .that course should be followed." (quoting Strickland, 466 U.S. at 697)). Here the Court rejects Defendant's ineffectiveness claim because he has not demonstrated a reasonable probability that but for this decision not to challenge the extra indictment language, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

The extraneous language appeared in each of the indictment's charged drug conspiracies; including in Count I Racketeering Act 10 (conspiracy to distribute steroids), Act 11 (conspiracy to distribute controlled substances), and Count 19 (conspiracy to possess with intent to distribute). All three charges state that Defendant did knowingly conspire with another "to commit offenses against the United States, that is, to [distributeor posses with intent to distribute]. . .". (Second Superseding Indictment, Dkt. 997, at 15-16, 35; PgID 2561-62, 2581). The sentence in each case ends with a detailed description of the charged crime including the statute violated, the substance involved, and the quantity.

The language "commit offenses against the United States" does not appear in the drug conspiracy statute, 21 U.S.C. § 841(a) and § 846 but comes from the general conspiracy statute in 18 U.S.C. § 371. Nonetheless the language in this instance is not prejudicial because in each instance the indictment, clarified the charged conspiracy as a drug conspiracy related to a specific quantity and substance. The added language was only extraneous since each charged conspiracy clarified the elements required under 21 U.S.C. § 841(a) and § 846. Since the charges were adequately filed the Court would not have dismissed them even if Defendant's attorney had raised the issue or else would have dismissed without prejudice such that the charges would have been re-filed. Most likely the Court would have simply judicially narrowed the indictment. "A court does not err in ignoring irrelevancies in or striking surplusage from an indictment." United States v. Grenoble, 413 F.3d 569, 577 (6th Cir. 2005) (citing United States v. McGuire, 744 F.2d 1197, 1206 (6th Cir. 1984)). See United States v. Miller, 471 U.S. 130, 136 (1985) (the "part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as a useless averment that may be ignored."). Given the options available to the Court, the reasonable outcome is the same, even if Defendant's attorney had elected to challenge the language.

Furthermore, the Court finds the attorney's decision not to challenge this...