United States v. Moses
| Decision Date | 24 January 2018 |
| Docket Number | CRIMINAL ACTION NO. 14-232,CIVIL ACTION NO. 16-6545 |
| Parties | UNITED STATES OF AMERICA v. JOSHUA MOSES |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Before the Court is Joshua Moses's pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Moses asks that we vacate his conviction and sentence for violation of 18 U.S.C. § 922(g)(1). For the following reasons, we deny the § 2255 Motion.1
On October 10, 2014, Moses was convicted by a jury of two counts of possession of a firearm by a person who has been previously convicted in any court of a crime punishable by imprisonment for more than one year, in violation of 18 U.S.C. § 922(g)(1). The first count arose from Moses's possession of two firearms on November 21, 2013 and the second count arose from Moses's possession of one firearm on November 22, 2013. Moses's trial counsel(hereinafter referred to as "Trial Counsel") filed a post-trial motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 on October 24, 2014. That motion was denied on November 3, 2014. On December 4, 2014, during a hearing held by the trial court, Moses requested new counsel. That request was granted and new counsel (hereinafter referred to as "Subsequent Counsel") was appointed to represent Moses in connection with his sentencing and appeal.
On January 2, 2015, before Moses was sentenced, the Government filed a Motion to Dismiss Count II on the ground that the evidence introduced at trial established that Moses simultaneously possessed all three firearms on November 21, 2013, which constituted a single offense under 18 U.S.C. § 922(g)(1). See United States v. Tann, 577 F.3d 533, 537-38 (3d Cir. 2009) (). The Motion to Dismiss Count II was granted on January 9, 2015. Subsequent Counsel filed a Motion for New Trial pursuant to Federal Rule of Criminal Procedure 33 on April 20, 2015, but that motion was denied. On May 12, 2015, Moses was sentenced for his conviction on Count I to 102 months of imprisonment, three years of supervised release, a $1000.00 fine, and a $100.00 special assessment. Moses appealed the order denying his Motion for New Trial and his sentence. The United States Court of Appeals for the Third Circuit denied his appeal in its entirety on June 21, 2016. See United States v. Moses, 653 F. App'x 91, 92 (3d Cir. 2016).
Moses subsequently filed the instant § 2255 Motion, in which he challenges the effectiveness of both of his attorneys and claims that the trial court committed errors in connection with this case. The § 2255 Motion asserts the following four grounds for relief: (1)Trial Counsel's medical treatment prior to the trial caused him to render ineffective assistance to Moses; (2) Subsequent Counsel was ineffective for failing to assert a claim relating to Trial Counsel's ineffective assistance in Moses's Motion for New Trial; (3) the trial court failed to conduct a sufficient inquiry into Moses's conflict with Trial Counsel prior to appointing Subsequent Counsel; and (4) Trial Counsel rendered ineffective assistance at trial by failing to take certain actions that Moses believes were necessary for his defense.
Moses has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:
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.
28 U.S.C. § 2255(a). "'Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors.'" United States v. Perkins, Crim. A. No. 03-303, Civ. A. No. 07-3371, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting United States v. Rishell, Crim. A. No. 97-294-1, Civ. A. No. 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001)). In order to prevail on a Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962); see also United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) .
In his first ground for relief, Moses argues that Trial Counsel rendered ineffective assistance because he was undergoing cancer treatment and taking prescription pain medication prior to Moses's trial. Specifically, Moses contends that Trial Counsel failed to prepare for trial or present a defense at trial because he underwent chemotherapy treatment prior to trial and took oxycontin during that treatment. In order to prevail on a claim for ineffective assistance of counsel, a criminal defendant must demonstrate both that (1) his attorney's performance was deficient, i.e., that the performance was unreasonable under prevailing professional standards, and (2) that he was prejudiced by his attorney's performance. Strickland v. Washington, 466 U.S. 668, 687-88, 690-92 (1984). "We may address the prejudice prong first '[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice.'" Travillion, 759 F.3d at 289 (quoting Strickland, 466 U.S. at 697). Prejudice is proven if "there is 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 to undermine confidence in the outcome." Id. Consequently, counsel cannot be found to be ineffective for failing to pursue a meritless claim. See United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015) .
The record before us shows that, on June 19, 2014, Trial Counsel filed a motion for continuance of trial, in which he requested a continuance of two to three months from the original trial date of July 10, 2014, because he had "recently been hospitalized due to an unexpected health problem." (Mot. to Continue ¶¶ 2-3.) The trial court held a Hearing on the Motion to Continue on June 27, 2014. Trial Counsel was unable to attend the Hearing and Moses was represented during the Hearing by another attorney from Trial Counsel's office. (6/27/14 Hr'g Tr. at 1, 3.) During the Hearing, the trial court explained to Moses that Trial Counsel was unwell and had requested a two or three month continuance of his trial. (Id. at 3.) The trial judge asked Moses whether he consented to the continuance of his trial and Moses stated that he did not object to the continuance and that he hoped that Trial Counsel would get better. (Id. at 4-5.) Trial Counsel later informed the court that he had taken oxycontin as part of his medical treatment before he returned to his practice, but that he had ceased taking such medication prior to Moses's trial. (12/4/14 Hr'g Tr. at 5.)
The use of prescription drugs during or prior to a trial does not render an attorney per se ineffective. As the United States Court of Appeals for the Third Circuit has explained, while "[a]lcohol or drug use by trial counsel can certainly be relevant to both parts of an ineffectiveness inquiry . . . alleged substance abuse is not, without more, one of the rare forms of dereliction amounting to the per se denial of a defendant's Sixth Amendment right to the effective assistance of counsel." United States v. Washington, 869 F.3d 193, 204 (3d Cir. 2017) (citations omitted). Thus, even though Trial Counsel admitted that he used oxycontin in the weeks prior to Moses's trial, Berry v. King, 765 F.2d 451, 454 (5th Cir. 1985). See also Hundal v. Beard, Civ. A. No. 11-1571-JKS, 2013 WL 5493310, at *10 (E.D. Cal. Oct. 2, 2013) . As the United States Court of Appeals for the Fourth Circuit has explained, McDougall v. Dixon, 921 F.2d 518, 535 (4th Cir. 1990). Thus, "even a drug-addicted attorney does not constitute an automatic violation of Strickland, nor does it create a presumption of...
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