United States v. Moss, 2:03-cr-0550-WBS-EFB P

• Decision Date: 29 November 2017
• Docket Number: No. 2:03-cr-0550-WBS-EFB P,2:03-cr-0550-WBS-EFB P
• Parties: UNITED STATES OF AMERICA, Respondent, v. WILL MOSS, Jr., Movant.
• Court: U.S. District Court — Eastern District of California

UNITED STATES OF AMERICA, Respondent, v. WILL MOSS, Jr., Movant.

No. 2:03-cr-0550-WBS-EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

November 29, 2017

ORDER AND FINDINGS AND RECOMMENDATIONS

Movant, Will Moss, Jr. (hereinafter "Moss" or "movant"), a federal prisoner moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.¹ Following a jury trial, Moss was convicted of four counts of sex trafficking of children by force, fraud or coercion in violation of 18 U.S.C. § 1591(a)(1); one count of coercion and enticement for prostitution in violation of 18 U.S.C. § 2422(a); two counts of interstate transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a); one count of possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A); three counts of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and one count of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). ECF No. 188 at 2. He now seeks post-conviction relief on the following grounds: (1) his trial and appellate counsel rendered ineffective assistance; and (2) the court should vacate his convictionon Count 8 because neither 18 U.S.C. § 1591 nor 18 U.S.C. § 2423(a) is a crime of violence within the meaning of 18 U.S.C. § 924(c)(3). ECF No. 354.

Moss also filed a motion for default judgment (ECF No. 284), a motion to amend his § 2255 motion to add an additional claim for relief based on Alleyne v. United States, ___U.S.___, 133 S. Ct. 2151 (2013) (ECF No. 280), and a motion to strike respondent's opposition to his motion to amend (ECF No. 290).² Given that this action now proceeds based solely on the third amended motion to vacate (ECF No. 354) - wherein movant was directed to raise all claims he wished to pursue (ECF No. 352) - these older motions will be denied as moot.

An evidentiary hearing was ordered as to one of Moss' claims, i.e. that his trial counsel rendered ineffective assistance during the plea bargaining process. Counsel was appointed to represent Moss for the purposes of proceeding with that evidentiary hearing. The hearing was held on August 9, 2016, and Moss was represented by attorney Barry Morris. The United States was represented by Assistant United States Attorneys Michael Beckwith and Owen Roth. After the testimony, the court heard oral argument and directed supplemental briefing, which has been completed. The court now issues its findings and recommendations as to all of the issues raised in Moss' § 2255 motion.

For the reasons set forth below, and upon careful consideration of the record and the applicable law, it is recommended that Moss' § 2255 motion be denied.

I. Procedural Background

On June 21, 2007, after a jury trial, Moss was convicted of the various offenses described above as charged in the indictment. ECF No. 188 at 2. He was sentenced by United States District Judge Edward J. Garcia, who imposed a total term of 480 months in the custody of the United States Bureau of Prisons, to be followed upon his release from imprisonment by a 120 month term of supervised release. ECF No. 184.

///// Moss filed a timely notice of appeal from his judgment of conviction, ECF No. 183, and by order dated May 18, 2010, the United States Court of Appeals for the Ninth Circuit affirmed his conviction on all counts except counts 11 and 12, in which he was charged with being a convicted felon in possession of a firearm. Those two counts were remanded for vacatur of one of the counts in order to avoid multiplicitous convictions. ECF No. 242.³ On remand, the trial court vacated Moss' conviction on count 12 as well as the special assessment that had been imposed in connection with that count. ECF Nos. 248, 249. Moss' petition for certiorari in the United States Supreme Court was denied on November 1, 2010. ECF No. 250 at 12.

Moss filed his initial pro se § 2255 motion on October 26, 2011, in which he raised three grounds for federal habeas relief, all claiming ineffective assistance of counsel. ECF No. 250. On January 20, 2015, the then-assigned magistrate judge issued an order and findings and recommendations which, inter alia, recommended that Moss' § 2255 motion be denied. ECF No. 293. Moss filed objections to that recommendation, ECF No. 313, and after reviewing those objections, the then-assigned magistrate judge issued an order which vacated the findings and recommendations and scheduled an evidentiary hearing on one of Moss' claims: that his trial counsel rendered ineffective assistance during the plea bargain process. ECF No. 314. That same order also appointed counsel for Moss for the purpose of participating in the evidentiary hearing and stated that "new findings and recommendations on movant's § 2255 motion will be issued after the evidentiary hearing has been completed." Id. at 2.⁴ The evidentiary hearing took place on August 9, 2016.

On August 30, 2016, Moss, proceeding through counsel, filed a third amended § 2255 motion, which includes all of the claims contained in his original motion and adds an additional claim based on the recent United States Supreme Court decision in Johnson v. United States, 135 S.Ct. 2251 (2016). ECF No. 354. With regard to the claims contained in his original § 2255motion, Moss has added no new arguments but has elected to rely on his original § 2255 motion "as is." Id. at 1 n.1. The government filed a response to the third amended motion on September 13, 2016, and movant filed a reply on September 20, 2016. ECF Nos. 356, 360. This matter proceeds on movant's third amended motion.

In its response, the government argued that this court should "adopt" the original findings and recommendations with respect to all of movant's original claims, with the exception of his claim of ineffective assistance of counsel during the plea bargain process. The government "asks the Court to consolidate [the] prior findings and recommendations with its rulings on the IAC claim (during the plea bargain process) and the Johnson claim." ECF No. 356 at 4. In his reply, movant argued that he should be allowed to expand his arguments on his original claims. In an order filed September 26, 2016, the parties were instructed that the government could elect to rely on its original answer with respect to movant's original claims and that no traverse was necessary with respect to those claims, but that both parties could, if they wished, elaborate on the arguments already before the court. ECF No. 361.

After the evidentiary hearing was concluded, Moss filed a memorandum in support of his § 2255 motion. ECF No. 362. The government filed a post-hearing memorandum and Moss filed a reply. ECF Nos. 364, 367.

II. Factual Background

The pertinent facts underlying Moss' conviction were described in Judge Shubb's decision denying Moss' pre-trial motion to suppress evidence.⁵ That decision set forth the following description of facts pertaining to Moss' crimes of conviction, his arrest, and the subsequent search of his vehicle.

Stockton police officers began their investigation of Will Moss, Jr. in July 2003. By December 2003 they had interviewed several witnesses, gathered documentary evidence, and had otherwise corroborated the statements of witnesses who identified the defendant as a pimp who with the assistance of Vinnie Brooks had moved women, including at least one minor, inside the State of California and to at least Las Vegas, Nevada for the purposes ofprostitution.

On December 12, 2003, between approximately 3:30 and 4:00 p.m., San Joaquin County Probation Officer James Christensen called Stockton Police Department Sergeant Kenneth Praegetzer and advised that while he was driving in the area of Sierra Nevada Street and Wilson Way in Stockton he observed three or four black females on the street. He said the women stood out to him because they were younger and dressed in a flashy manner, including high heels and tight, short clothing in contrast to the typical dress, age, and demeanor of local prostitutes on Wilson Way.

Sgt. Praegetzer relayed this information to Officers James Chraska, Jose Lopez, Phillip Thompson, and Jonathan Kislingbury for further investigation. Those officers proceeded to the Wilson Way area, which was well known for prostitution activity. Officer Kislingbury observed four females walking on Wilson Way who met the description he had been provided. He observed a white female, later identified as Stephanie Bednarik, walking with a black female, later identified as Summer Sawyer, and then saw two additional black women, later identified as Allison Carruth and Margaret Hutchinson, walking a few blocks south on Wilson Way. Officer Kislingbury recognized Summer Sawyer as a prostitute with whom he had dealings in the past.

The officers observed the activities of the women in the prostitution area. Officer Kislingbury watched Carruth and Hutchinson wave at traffic and motion cars to the side of the road. They waved at three vehicles with male drivers and called out to them to turn around. As Officer Kislingbury stopped at the stop sign at the intersection of Flora Street and Wilson Way to turn onto Wilson Way, Carruth and Hutchinson were only about twenty-five feet away walking southbound on Wilson Way. As he turned onto Wilson Way, Hutchinson called out to him and said, "Hey, don't go, come back." Officer Kislingbury replied, "hello" and relayed this information to the other officers.

Meanwhile, Officers Chraska and Lopez observed Carruth and Hutchinson loitering in the area of the Wienerschnitzel. After Hutchinson waved at them, Officer Chraska pulled into the restaurant parking lot in the unmarked police car. Carruth and Hutchinson then approached the car. Carruth pushed her chest towards Officer Lopez and asked him to touch her. Hutchinson said hello to Officer Chraska and then pushed her breasts towards the open window and

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