United States v. Moss

• Decision Date: 16 January 2015
• Docket Number: No. 2:03-cr-0550 WBS DAD P,2:03-cr-0550 WBS DAD P
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES OF AMERICA, Respondent, v. WILL MOSS, Jr. Movant.

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

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

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 16, 2015

ORDER AND FINDINGS AND RECOMMENDATIONS

Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.¹ On June 21, 2007, following a jury trial, movant 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.)

Movant now seeks post-conviction relief on the grounds that both his trial and appellate counsel rendered him ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that movant's § 2255 motion be denied.

Movant has also filed a motion for default judgment, a motion to amend his § 2255 motion to add an additional claim for relief, and a motion to strike respondent's opposition to his motion to amend. For the reasons set forth below, all of those motions will be denied.

I. Procedural Background

On June 21, 2007, after a jury trial, movant Will Moss, Jr. was convicted of the various offenses described above as charged in the indictment. (ECF No. 188 at 2.) On February 13, 2007, United States District Judge Edward J. Garcia sentenced movant to 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.)

On March 6, 2007, movant filed a timely notice of appeal from his judgment of conviction. (ECF No. 183.) By order dated May 18, 2010, the United States Court of Appeals for the Ninth Circuit affirmed movant's conviction on all counts except counts 11 and 12, in which he was charged with being a convicted felon in possession of a firearm, which were remanded for vacatur of one of those two counts to avoid multiplicitous convictions. (ECF No. 242.)² On remand, the trial court vacated movant's conviction on count 12 as well as the special assessment that had been imposed in connection with that count. (ECF No. 248, 249.) Movant subsequently filed a petition for certiorari in the United States Supreme Court, which was denied on November 1, 2010. (ECF No 250 at 12.)

Movant filed the instant motion pursuant to 28 U.S.C. § 2255 on October 26, 2011. (Id. at 1.) The motion for relief is a form motion upon which movant has stated his grounds for relief and describes the nature of his claims. Though the form motion requests specific facts supporting each claim, movant has not alleged any factual underpinnings for his claims but rather, for the most part, has simply asserted conclusions. No memorandum of points and authorities weresubmitted by movant with his motion and the form motion contains no citation to legal authorities nor to the record in this action. After the granting of several extensions of time in which to do so, respondent finally filed an answer on September 20, 2012. (ECF No. 268.) Movant did not file a traverse.³

On July 26, 2013, movant filed a motion for leave to amend his § 2255 motion to add an additional claim for relief. (ECF No. 280.) On September 6, 2013, respondent was directed by the court to file an opposition or a statement of non-opposition to movant's motion to amend. (ECF No. 281.) When respondent failed to do so, on October 17, 2013, the undersigned issued an order requiring respondent to show cause in writing why sanctions should not be imposed due to respondent's failure to timely comply with the court's September 6, 2013 order. (ECF No. 283.) On October 21, 2013, movant filed a motion for default judgment. (ECF No. 284.) On October 25, 2013, respondent filed a response to the court's October 17, 2013 order to show cause along with an opposition to movant's motion to amend. (ECF No. 286.) On August 22, 2014, movant filed a "motion to dismiss" respondent's opposition to his motion to amend or, in the alternative, a "request for leave to file an untimely reply." (ECF No. 290.)⁴ Since that date the only documents filed by movant with this court have been notices of change of address.

II. Factual Background

On April 12, 2005, movant filed a pre-trial motion to suppress evidence. The trial court's decision on that motion contained the following description of facts pertaining to movant's crimesof 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 of prostitution.

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 towardsthe open window and asked him to touch her.⁵ When Officer Chraska told her he wanted to have sex with her, she replied, "[w]ell, how much you got." Officer Chraska told her he had sixty dollars, but did not touch her. At that point Carruth walked towards Hutchinson and told her to leave.

The officers then arrested Carruth and Hutchinson for loitering for the purposes of prostitution. They both indicated that their home address was 5419 Tropicana Boulevard, apartment #1207, an address known to the officers as the address of defendant Moss. In addition, Carruth was using a Boost cell phone, known to be commonly used by prostitutes, that contained numbers for "Slim," "Tachi," and "Cinnamon." Those names were familiar to the officers because the Vice Unit had an ongoing investigation of pimping and pandering against Will Moss, Jr. who is also known as Slim. Tachi was known to be a nickname for co-defendant Vinnie Brooks.

After Carruth and Hutchinson were taken to the police station, Officer Kislingbury pulled out of the Wienerschnitzel parking lot and noticed both Sawyer and Bednarik on the sidewalk just south of the restaurant talking to some other women on the street. It appeared to him that Sawyer and Bednarik were being warned by other prostitutes on the street that law enforcement had made contact with Carruth and Hutchinson. Sawyer and Bednarik appeared nervous, changed the direction they were walking, entered the Wienerschnitzel, and sat down. Officer Kislingbury observed Sawyer talking on her cell phone while she was at the table.

About twenty minutes later Carruth and Hutchinson left the Wienerschnitzel, followed by Officer Kislingbury and others. As the women walked westbound on Fremont Street to American Street, they got into a blue Cadillac, four dour [sic], license plate number 2ZJX115. Accordingly [sic] to Officer Kislingbury, the women did not flag the car down, but got into it as if they knew the driver. The vehicle was familiar to Officer Kislingbury and others in the unit as being registered to Will Moss, Jr. Officer Kislingbury drove alongside the Cadillac and

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