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Moore v. United States

United States District Court, S.D. Georgia, Statesboro Division

March 29, 2017




         Guilty-plea convicted of two counts of use of a communication facility (mobile phone) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), Almonta Moore seeks 28 U.S.C. § 2255 relief. Doc. 347;[1] see also docs. 3 (indictment); 278 (plea agreement); 314 (judgment ordering 92 months' imprisonment). The Magistrate Judge, in his Report and Recommendation (R&R) that movant's motion be denied, found that

In pleading guilty, Moore admitted that he knowingly and intentionally used a communication facility while committing or helping commit the crime of conspiracy to distribute a controlled substance. Doc. 278 (plea agreement); doc. 354 (Rule 11 plea hearing) at 10, 12-13, 19. He also waived his right to directly appeal or collaterally attack his conviction and sentence, excepting circumstances not relevant here. Doc. 278 at 4, * doc. 354 at 16*18. The Court found movant's plea to be intelligently, knowingly, and voluntarily made, Moore affirmed it was so, and the Court accepted his guilty plea. Id. at 19-20.
At sentencing, counsel objected to [the] PSR's description of the amount of cocaine at issue, Moore's role in the enterprise, and the recommendation to deny him a 3level reduction for an acceptance of responsibility. Doc. 351 at 2*6. After argument and testimony by the Government's witness, the Court overruled the first two objections. The Court found that the evidence demonstrated both that Moore had purchased approximately 11 and a half ounces of powder cocaine and 5 ounces of crack cocaine over the course of 26 recorded phone calls, and that he was not a minimal participant (and thus not entitled to the four-level decrease set forth in U.S.S.G. 3B1.2). Id. at 10-21. The Court also found, however, that Moore was entitled to a 3-point reduction based on acceptance of responsibility -- his early entry of a guilty plea. Id. at 21. Because of his lengthy, "ambitious" criminal history, movant's total offense level was set at 23 with a criminal history category of VI, fetching an advisory guideline range of 92-115 months' imprisonment. Id. at 21-22; see PSR at ¶ 18, 28*40, 67-68.
Pursuant to the negotiated plea agreement, however, the maximum penalty and guideline range of punishment was capped at 96 months' incarceration. See doc. 351 at 22; see Id. at 25 (reminding Moore that his "lawyer did a very good job in negotiating a plea for you that would cap your possible sentence at 96 months. Had she not done that, then just today you would be facing 150 months."). Based on counsel's argument that Moore would voluntarily commit to drug treatment while incarcerated and would have a strong support network upon release, militating against reoffending, the Court sentenced Moore at the low end of the guidelines: 92 months' imprisonment. Id. at 25-26.

Doc. 363 at 1-4. The Court concluded that Moore's pre-plea claim (that counsel was deficient for attempting to suppress evidence gained by wiretap) had been waived by his plea agreement, and that his post-plea and sentencing claims (for Court error and counsel's failure to argue his minimal role at sentencing) were "barred by the collateral attack waiver in his plea agreement, not cognizable on habeas review, and blatantly contradicted by the record." Id. at 10.

         Moore objects that he never intended to attack the validity of his plea, see doc. 364 at 1 ("Moore is not arguing suppression of the phone records as they pertain to the plea agreement. He accepts the plea."), but instead contends that his sentence was improperly heightened by use of the phone recordings. Id. at 2 ("Moore is not challenging the guilty plea or the validity thereof. He is challenging the post plea proceedings that determined his sentence. Proceedings that were marred by his attorney's failure to challenge the phone records that were used to establish his sentence."). Movant does not otherwise object to the Magistrate Judge's findings.

         Moore's 'wiretaps at sentencing' claim also fails. As noted in the R&R, by pleading guilty he waived his pre-plea claims. Doc. 363 at 7-10. That included the right to challenge the admissibility of the evidence the Government had against him the way he could have had he proceeded to trial - namely, the wiretapped phone calls. Id. (citing Glaubman v. United States, 2009 WL 2970495 at * 20 (S.D. Fla. Sep.16, 2009) (by "entering into the negotiated plea agreement, [movant] was telling his lawyer not to conduct any further investigation and not present at a trial proceeding any legal defenses that he may be entitled to as it relates to his case."), Haring v. Prosise, 462 U.S. 306, 321 (1983) ("[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case."), and Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.").

         As movant emphasizes in his objections, he does not challenge the validity of his plea agreement - which waived "any meaningful opportunity [movant] might otherwise have had to challenge the admissibility of evidence obtained in violation of the Fourth Amendment." Haring, 462 U.S. at 320; see also Id. at 321 ("a Fourth Amendment claim ordinarily may not be raised in a habeas proceeding following a plea of guilty" because "the claim is irrelevant to the constitutional validity of the conviction."). In other words, any Fourth Amendment challenge to the wiretapped phone calls is toast.

         The same must be said of his claims regarding the use of that evidence at sentencing - Moore waived his right to both a direct appeal and a collateral attack of his conviction and sentence. See doc. 278 at 4 (Moore "entirely waives his right to a direct appeal of his conviction and sentence on any ground" except where the Court entered a sentence above the advisory guideline range or the Government appealed the sentence, and "entirely waive s his right to collaterally attack his conviction and sentence on any ground and by any method" except based on an IAC claim); doc. 354 at 17-18 (affirming during the Rule 11 plea hearing that he fully understood the appellate rights he was waiving by entering a guilty plea, and the only applicable exceptions to those waivers); United States v. Bushert, 997 F.2d 1343, 1351-52 (llth Cir. 1993) (a sentence appeal waiver will be upheld if the waiver was made knowingly and voluntarily).

         Put another way, Moore's claim about the Court's reliance on wiretapped phone call evidence in determining its sentencing is barred by that waiver in his (admittedly valid) plea agreement. See, e.g., Lockyear v. United States, 514 F.App'x 315, 317 (4th Cir. 2013) (defendant's claims regarding his sentence were foreclosed by appeal waiver in his plea agreement). Moore cannot now sneak it in under the guise of an IAC feint. Williams v. United States, 396 F.3d 1340, 1341 (llth Cir. 2005) ("a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel during sentencing."), see also Id. ("Here, at the plea colloquy, the court specifically questioned [movant] concerning the specifics of the sentence-appeal waiver and determined that he had entered into the written plea agreement, which included the appeal waiver, knowingly and voluntarily. The plain language of the agreement informed [movant] that he was waiving a collateral attack on his sentence. Under these circumstances, the sentence-appeal waiver precludes a § 2255 claims based on ineffective assistance at sentencing."). His sentence thus stands.

         After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, doc. 363, to which objections have been filed, doc. 364. Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court.

         Further, a prisoner seeking relief under 28 U.S.C. § 2255 must obtain a certificate of appealability ("COA") before appealing the denial of his application for writ of habeas corpus. 28 U.S.C. § 2253(c)(1)(B). This Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the Report and Recommendation, and in consideration of the standards enunciated in Slack v. McDaniel,529 U.S. 473, 482-84 (2000), movant Almonta Moore has failed to make the requisite showing. Accordingly, a COA is DENIED in this case.[2] Moreover, because there are no ...

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