United States District Court, S.D. West Virginia, Beckley Division
RYAN D. MOORE, Movant,
UNITED STATES OF AMERICA, Respondent.
PROPOSED FINDINGS AND RECOMMENDATION
J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE.
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.)
Criminal Action No. 5:12-00232:
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). (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.
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.)
Section 2255 Motion:
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. (Civil No. 5:12-00232, Document No. 72.)
As grounds for habeas relief, Movant argues as
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
(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.).
Section 3582 Motion:
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.(Id., Document No. 82.)
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
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).
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).
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
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.
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