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Moore v. United States

United States District Court, S.D. West Virginia, Beckley Division

May 24, 2018

RYAN D. MOORE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          OMAR J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. (Document No. 72.) By Standing Order, this matter was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 73.) By Order entered on January 6, 2016, the above case was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 81.)

         FACTUAL BACKGROUND

         A. Criminal Action No. 5:12-00232:

         On May 30, 2013, Movant pled guilty to one count of Conspiracy to Distribute Oxycodone in violation of 21 U.S.C. § 846 (Count One) and one count of Conspiracy to Commit Money Laundering in violation of 18 U.S.C. § 1956(h) (Count Two). (Criminal Action No. 5:12-00232, Document Nos. 40 - 42.) A Presentence Investigation Report was prepared. (Id., Document No. 53.) The District Court determined that Movant had a Combined Offense Level of 36, and a Total Offense Level of 33, the Court having applied a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b).[1] (Id.) The District Court sentenced Movant on October 17, 2013, to serve a total term of 168-months imprisonment, to be followed by a three-year term of supervised release. (Id., Document Nos. 50 and 51.) The District Court also imposed a $200 special assessment and directed forfeiture of $330, 000. (Id.)

         On December 23, 2013, Movant filed a Notice of Appeal. (Id., Document No. 55.) Subsequently, the United States filed a Motion to Dismiss arguing that the appeal was untimely. (Id., Document No. 65.) By Order filed on June 20, 2014, the Fourth Circuit granted the United States' Motion and dismissed Movant's appeal as untimely. (Id.) By Order filed on July 29, 2014, the Fourth Circuit denied Movant's petition for rehearing. (Id., Document No. 69.)

         B. Section 2255 Motion:

         On June 15, 2015, Movant, acting pro se, filed his instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.[2] (Civil No. 5:12-00232, Document No. 72.) As grounds for habeas relief, Movant argues as follows:

1. The Court erred by failing to make a sufficient examination before accepting appellant's guilty plea of his competence to enter a plea of guilty after he showed a reasonable doubt regarding his competence.
2. The failure of appellant's counsel to investigate and present documents reflecting appellant's mental and emotional condition relevant to the question of appellant's competence before advising him to plead guilty was ineffective assistance of counsel.
3. The two level enhancement appellant received was illegal due to the fact that there were not five individuals involved in the conspiracy.
4. The two level enhancement was illegal due to the fact that the parties in West Virginia determined where the bank locations were according to convenience in geographic. Therefore, the appellant did not control the locations of the financial institutions.

(Id., pp. 1 - 12.) As Exhibits, Movant attaches the following: (1) A copy of the “Order” and “Judgment” of the Fourth Circuit Court of Appeals filed on June 20, 2014 (Id., pp. 13 - 15.); (2) A copy of pertinent pages from “Appellant's Response to Government's Motion to Dismiss Appeal and to Suspend Time for Filing Appellee's Brief” (Id., pp. 16 - 17.); and (3) A copy of United States v. Cole, 813 F.2d 43 (3rd Cir. 1987) (Id., pp. 18 - 24.).

         C. Section 3582 Motion:

         On September 14, 2015, Movant, acting pro se, filed a Motion for Reduction of Sentence Pursuant to Title 18 U.S.C. § 3582(c)(2) arguing that he was entitled to a sentence reduction based upon the reduction in Sentencing Guidelines. (Criminal Action No. 5:12-00232, Document No. 77.) By Order filed on December 14, 2015, the District Court appointed counsel to represent Movant and directed the parties to file memorandums addressing the issue. (Id., Document No. 78.) On December 28, 2015, the United States filed its Response stating that it had “no objection to the United States Probation Office's conclusion that this defendant is eligible for a reduction of offense level pursuant to Amendment 782 to the United States Sentencing Guidelines effective November 1, 2014.” (Id., Document No. 79.) On December 29, 2015, Movant, by counsel, filed his Memorandum concurring that he is eligible for a reduced sentence under Section 3582(c)(2) and requesting sentencing at the bottom of the Guideline range. (Id., Document No. 80.) By “Memorandum Opinion and Judgment Order” entered on May 6, 2016, the District Court granted Movant's Section 3582 Motion and reduced his sentence from 168 months to 135 months based upon the retroactive amendment to the Sentencing Guidelines.[3](Id., Document No. 82.)

         DISCUSSION

         The relevant portion of Section 2255 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.

         A motion made pursuant to Section 2255 is a collateral attack on a conviction or sentence. To succeed on a Section 2255 motion, the movant must prove that “his sentence or conviction was imposed in violation of the Constitution or law of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack.” 28 U.S.C. § 2255. “A motion collaterally attacking a petitioner's sentence brought pursuant to § 2255 requires the petitioner to establish his grounds by a preponderance of the evidence.” Sutton v. United States, 2006 WL 36859, * 2 (E.D.Va. Jan. 4, 2006).

         The filing of a Section 2255 motion does not supplant or obviate the need to file a direct appeal. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). The United States Supreme Court explains that “a final judgment commands respect. For this reason, we have long and consistently affirmed that a collateral challenge may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). A non-constitutional claim that could have been, but was not, raised on direct appeal may not be raised for the first time in a Section 2255 motion. Stone v. Powell, 428 U.S. 465, 478 fn. 10, 96 S.Ct. 3037, 3044 fn. 10, 49 L.Ed.2d 1067 (1976). A constitutional claim that could have been, but was not, raised on direct appeal may not be raised for the first time in a Section 2255 motion unless the movant can show either (1) “cause and actual prejudice resulting from the errors of which he complains, ” or (2) “he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack.” United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). “The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” Id. at 493. Actual prejudice is shown by demonstrating that the error worked to movant's “actual and substantial disadvantage, ” rather than just creating a possibility of prejudice. See Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997)(quoting Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986)). “In order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence. Mikalajunas, 186 F.3d at 493. “Typically, to establish actual innocence, a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent. Id. at 494. The movant must show that “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Furthermore, a movant may not reassert a claim decided on direct review. In Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.)(per curiam), cert. denied, 429 U.S. 863, 97 S.Ct. 169, 50 L.Ed.2d 142 (1976), the Court held that a defendant “will not be allowed to recast, under the guise of a collateral attack, questions fully considered [on appeal].” An exception exists, however, when there has been an intervening change in the law which justifies consideration of a prior determination. See Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974).

         1. Movant's Competence:

         Before accepting a guilty plea, the Court must determine that the defendant is competent and that his plea is knowing and voluntary. Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); also see North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)(A guilty plea must be “a voluntary and intelligent choice among the alternative courses of action open to the defendant.”); Roach v. Martin, 757 F.2d 1463, 1480 (4thCir. 1985)(due process requires a defendant be legally competent to plead guilty). If the defendant does not understand his constitutional protections and the charges made against him, the guilty plea is invalid. Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d. 108 (1976). A defendant is competent to plead guilty if he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as factual understanding of the proceedings against him.” Godinez, 509 U.S. at 396, 113 S.Ct. at 2685(The standard for determining a defendant's competence to enter a guilty plea is the same as the standard for determining competency to stand trial); Roach, 757 F.2d at 1280(To show incompetence to plead guilty, a defendant must demonstrate that his mental faculties were so impaired when he pleaded that he was incapable of understanding and appreciating the charges against him, of comprehending his constitutional rights, and of realizing the consequences of his plea); Shaw v. Martin, 733 F.2d 304, 314 (4th Cir. 1984)(the standard of competence to plead guilty parallels the standard of competency to stand trial). The Fourth Circuit has stated that “[n]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.” Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000). A defendant asserting that he is legally incompetent must prove it by a preponderance of the evidence. United States v. General, 278 F.3d 389, 396 (4th Cir. 2002).

         Competency claims can raise issues under both procedural and substantive due process. Beck v. Angelone, 261 F.3d 377, 387 (4th Cir. 2001). A procedural competency claim arises when a defendant argues that the district court erred in failing to conduct a competency hearing. General, 278 F.3d at 396. A substantive competency claim arises when a defendant argues he was convicted or sentenced while legally incompetent. Id.; also see Vogt v. United States, 88 F.3d 587, 590-91 (8th Cir. 1996)(noting that substantive due process prohibits the conviction of a defendant that is mentally incompetent, while procedural due process requires a competency hearing be held when there is reasonable doubt as to the defendant's mental competency). In the instant case, Movant appears to assert a procedural competency claim. Specifically, Movant argues that the District Court “erred by failing to make a sufficient examination before accepting appellant's guilty plea of his competence to enter a plea of guilty after he showed a reasonable doubt regarding his competence.” (Civil Action 5:15-07697, Document No. 72, p. 4.) Title 18 U.S.C. § 4241 requires the district court to sua sponte order a competency hearing if reasonable cause exists as to question the defendant's competency. 18 U.S.C. § 4241; also see General, 278 F.3d at 396; Godinez, 509 U.S. at 408, 113 S.Ct. at 2691(“Trial courts have the obligation of conducting a hearing whenever there is sufficient doubt concerning a defendant's competency.”) The determination as to whether reasonable cause exists is a matter left to the discretion of the trial court. Id. When determining whether reasonable cause exists, the trial court must consider all the evidence before it, including evidence of irrational behavior, the defendant's demeanor, and any medical opinions concerning the defendant's competency. See United States v. Mason, 52 F.3d 1286, 1290 (4th Cir. 1995); also see Drope v. Missouri, 420 U.S 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1972)(Relevant indicia of a defendant's incompetence include the defendant's irrational behavior, courtroom demeanor, or medical opinions.) A court reviewing a trial court's exercise of discretion cannot substitute its own judgment, but must determine whether the trial court's exercise of discretion was arbitrary and capricious when considering the law and facts. See General, 278 F.3d at 396.

         The Rule 11 colloquy is designed to ensure that a guilty plea is both intelligent and voluntary. See United States v. Vonn, 535 U.S. 55, 58, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). “Prior to accepting a guilty plea, a trial court, through colloquy with the defendant, must inform the defendant of, and determine that he understands, the nature of the charge(s) to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty and various rights.” United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). “[A] valid plea of guilty requires that the defendant be made aware of all ‘the direct consequences of his plea.” See Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1365 (4th Cir.), cert. denied, 414 U.S. 1005 (1973); Manley v. United States, 588 F.2d 79, 81 (4th Cir. 1978). A defendant's statement that his plea is voluntary and knowingly is generally considered conclusive on the issue. Savino v. Murrary, 82 F.3d 593, 603 (4th Cir. 1996); also see Fields v. Attorney General of Maryland, 956 F.2d 1290, 1299 (4th Cir. 1992)(“Absent clear and convincing evidence to the contrary, a defendant is bound by the representations he makes under oath during a plea colloquy.”), cert. denied, 506 U.S. 885, 113 S.Ct. 243, 121 L.Ed.2d. 176 (1992); DeFusco, 949 F.2d at 119 (A defendant's statements at the plea hearing are strong evidence of the voluntariness of the plea agreement), cert. denied, 503 U.S. 997, 112 S.Ct. 1703, 118 L.Ed.2d. 412 (1992). The Fourth Circuit has recognized that “[i]n the absence of extraordinary circumstances, the truth of sworn statements made during a ...


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