United States v. Moore

• Decision Date: 18 December 2014
• Docket Number: 1:09–cr–250 RCL
• Parties: United States, Plaintiff, v. Ernest Bernard Moore, Defendant/Petitioner.
• Court: U.S. District Court — District of Columbia

75 F.Supp.3d 568

United States, Plaintiff

v.Ernest Bernard Moore, Defendant/Petitioner.

1:09–cr–250 RCL

United States District Court, District of Columbia.

Signed December 18, 2014

Ellen Chubin Epstein, U.S. Attorney's Office, Washington, DC, for Plaintiff.

Kenneth M. Robinson, Robinson Law Firm, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C LAMBERTH, United States District Court

Pro se defendant/petitioner Ernest Bernard Moore (“Moore”) seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (2012). Moore pleaded guilty to student aid fraud, bank fraud, and Social Security fraud on November 9, 2009. See Plea Agreement, ECF No. 5. Moore now argues that the United States failed to present sufficient evidence to sustain his bank fraud conviction, his trial and appellate counsel were ineffective, and that his plea agreement was accepted in violation of Federal Rule of Criminal Procedure 11. For the following reasons, Moore's motions will be denied.

I. BACKGROUND

Moore was charged with student aid fraud, bank fraud, and Social Security fraud by criminal information on October 1, 2009. Information, ECF No. 1. The factual background of this case was detailed by the Court of Appeals for the D.C. Circuit in Moore's direct appeal. United States v. Moore, 703 F.3d 562, 566–68 (2012). Moore pleaded guilty to all three counts on November 9, 2009. Plea Agreement, ECF No. 5. On September 23, 2010, the Court sentenced Moore to concurrent terms of fifty months' imprisonment for all three counts, to be followed by concurrent supervised-release terms of thirty-six months on the student aid and Social Security fraud counts and sixty months on the bank fraud count. The Court also ordered Moore to pay restitution of $759,593.86. Moore appealed, and the D.C. Circuit affirmed the convictions and sentence on December 28, 2012. USCA Order, ECF No 55, Moore, 703 F.3d at 562. The United States Supreme Court denied Moore's petition for writ of certiorari on October 7, 2013. Moore v. United States, ––– U.S. ––––, 134 S.Ct. 223, 187 L.Ed.2d 167 (2013)

Moore filed the present motion to vacate his sentence under 28 U.S.C. § 2255 (2012) on January 15, 2014 Mot. to Vacate, ECF No. 59. On January 29, 2014, Moore filed a motion for leave to file a supplement to his § 2255 motion, a motion for release on his own recognizance and to stay execution of sentence pending resolution of the § 2255 motion, and a motion for judicial notice of undisputed facts Mot for Release, ECF No. 62, Mot. for Leave to File Supplement, ECF No. 63, Mot for Judicial Notice, ECF No. 64. The United States filed their opposition to Moore's motion for release on April 28, 2014. Opp'n to Mot., ECF No. 68. Moore filed his reply and a motion for leave to file excess pages on June 12, 2014. Mot. for Leave to File, Reply to the United States' Opp'n, ECF No. 71. On July 18, 2014, the United States filed a motion for leave to file out of time and its opposition to Moore's motion to vacate his sentence under § 2255. Mot. for Leave to File, ECF No. 72, Opp'n to Def's Mot. to Vacate, ECF No. 73. On July 24 and July 31, 2014, Moore filed two additional motions for leave to file excess pages and replies to the United States' opposition Mot. for Leave to File, Mem. of P & A in Supp. of Reply to Opp'n, ECF No. 74, Mot. for Leave to File, Am. Mem. of P & A in Supp. of Reply to Opp'n, ECF No. 79.

II. LEGAL STANDARD

A motion under § 2255 allows federal prisoners to collaterally attack an otherwise final sentence if the sentence was (1) 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 was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack § 2255(a). The petitioner bears the burden of proof and must demonstrate his right to relief by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C.Cir.1973), United States v. Ashton, 961 F.Supp.2d 7, 11 (D.D.C.2013). Relief under § 2255 is an extraordinary remedy in light of society's legitimate interest in the finality of judgments Ashton, 961 F.Supp.2d at 11 (citing United States v. Zakas, 793 F.Supp.2d 77, 79–80 (D.D.C.2011) ) Thus, a motion to vacate under § 2255 is “neither a second chance at appeal nor is it a substitute for direct appeal” Id. A defendant is therefore required to show “a good deal more than would be sufficient on a direct appeal” to gain collateral relief United States v. Pollard, 959 F.2d 1011, 1020 (D.C.Cir.1992), see United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (“To obtain collateral relief[,] a prisoner must clear a significantly higher hurdle than would exist on direct appeal”)

A. Claims Not Raised on Direct Appeal

Claims not raised on direct appeal are generally procedurally barred to a defendant and may not be raised on collateral attack Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). This judicial doctrine is designed to conserve judicial resources and protect the law's interest in the finality of judgments. Id. If a defendant fails to raise a claimed trial error on direct review, the claim may be raised for collateral review if defendant can first demonstrate that there was sufficient “cause” to excuse his procedural default and that “actual prejudice” resulted from the errors of which he complains or that he is “actually innocent” Id., Frady, 456 U.S.at 167–68, 102 S.Ct. 1584, United States v. Washington, 373 Fed.Appx. 80, 80 (D.C.Cir.2010), United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.Cir.2003)

To demonstrate “cause” a defendant must prove that some “objective factor external to the defense” impeded efforts to raise an issue in trial or on direct appeal Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). For example, a defendant may show cause by demonstrating that some “factual or legal basis for a claim was not reasonably available to counsel,” or that “some interference by officials made compliance impracticable”Id. (internal citations and quotation marks omitted). Once “cause” is shown, a defendant must show that errors at trial “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Pettigrew, 346 F.3d at 1144 (citing Frady, 456 U.S. at 170, 102 S.Ct. 1584 ). At the very least, a defendant must show that “there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different” Id. (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), United States v. Dale, 140 F.3d 1054, 1056 n. 3 (D.C.Cir.1998) )

The Court may also consider a procedurally barred claim if a defendant can demonstrate that a constitutional error “has probably resulted in the conviction of one who is actually innocent” Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citing Murray, 477 U.S. at 496, 106 S.Ct. 2639 ) “To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him” Id. at 623, 118 S.Ct. 1604, United States v. Baxter, 761 F.3d 17, 27 (D.C.Cir.2014), United States v. Caso, 723 F.3d 215, 218–19 (D.C.Cir.2013)

B. Claims Argued and Decided on Defendant's Direct Appeal

A federal prisoner cannot raise collaterally any issue litigated and adjudicated on direct review, absent exceptional circumstances. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that upon intervening change in law, defendant may collaterally relitigate a decided issue), United States v. Greene, 834 F.2d 1067, 1070–71 (D.C.Cir.1987) Claims that have already been raised and rejected on direct review typically will not be entertained in a § 2255 motion. Id., Garris v. Lindsay, 794 F.2d 722, 726–27 (D.C.Cir.1986)

C. Ineffective Assistance of Appellate Counsel

The standard for assessing ineffective assistance of counsel, both trial and appellate, is set out in Strickland v. Washington.Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), Peete v. United States, 942 F.Supp.2d 51, 54 (D.D.C.2013). Under this two-factor test, a defendant must demonstrate “that (1) his counsel's performance ‘fell below an objective standard of reasonableness,’ and (2) ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”

United States v. Wright, 63 F.Supp.3d 109, 116, 2014 WL 3919619, at *4 (D.D.C Aug 12, 2014) (quoting Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052, United States v. Thompson, 721 F.3d 711, 713 (D.C.Cir.2013) A defendant must make the required showing of both deficient performance and sufficient prejudice in order to support an ineffectiveness claim Strickland, 466 U.S. at 700, 104 S.Ct. 2052

III. ANALYSIS

A. Moore's Claim of Insufficient Evidence of Bank Fraud is Procedurally Barred.

Moore did not raise his claim of insufficient evidence in his direct appeal to the D.C. Circuit Relief is now available only if he can demonstrate “cause” for the procedural default and “prejudice” that infected his trial, or that he is “actually innocent.” Moore has not established either Moore argues that he did not know that the lenders he defrauded did not meet the definition of “financial institution” under 18 U.S.C. §§ 20, 1813(c)(2) at the time of his guilty plea. Am. Mem. of P & A in Supp. of Reply to Opp'n 12, ECF No. 79. This argument is unavailing because the factual basis for the bank fraud charge was set out in the criminal information and Moore was present when the United States...