United States District Court, S.D. Georgia, Statesboro Division
GODBEY WOOD, UNITED STATES DISTRICT COURT CHIEF JUDGE
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; 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,
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,
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.
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.
'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.").
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.
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).
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.
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
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. Moreover, because there are no