United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS JUDGE
matter is before the Court on pro se Petitioner
Michael Neason Moses' (“Petitioner” or
“Moses”) Section 2255 Motion to Vacate or Set
Aside Criminal Judgment and Motion to Appoint Counsel. [Dkt.
48, 53.] For the reasons set forth below, the Court will deny
February 15, 2006, Moses pleaded guilty to a two-count
criminal information charging him with conspiracy to
distribute 50 grams or more of crack cocaine in violation of
21 U.S.C. §§ 841(a)(1) and 846 (“Count
I”) and possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. §
924(c) (“Count II”). (See Plea Agreement
[Dkt. 24.].) On May 15, 2006, this Court sentenced Moses to
352 months imprisonment, followed by a ten-year term of
supervised release. [Dkt. 30.] Moses did not appeal.
conviction arose from the following
circumstances. The Fairfax County Police Department
(“FCPD”) pulled over one of Moses'
co-defendants, Raymond Jackson (“Jackson”),
because his right tail light was out. (PSR ¶ 7.) While
Jackson was searching for his license and registration, the
police officer noticed a marijuana cigarette on the seat next
to Jackson. (Id.) Jackson was arrested, and a search
subsequent to his arrest revealed additional drugs and a
firearm in the vehicle. (Id. ¶ 8.) Once Jackson
arrived at the police station for questioning, he informed
police that he was a cocaine distributor and that he worked
for “Scorpio.” (Id. ¶ 9.) The FCPD
later determined that “Scorpio” was Moses.
(Id. ¶ 10.)
April 15, 2005, Jackson called Moses to set up a time to meet
in order to obtain more narcotics for distribution. (PSR
¶ 11.) The two agreed to meet in the Tysons Corner area.
(Id.) When Moses arrived at the agreed upon
location, police arrested him and searched his vehicle.
(Id.) The search uncovered four small baggies of
cocaine base, commonly referred to as crack cocaine; a gun;
and several rounds of ammunition. (Id.) Due to the
nature of the investigation, Moses could not be held
responsible for a precise drug amount. (PSR ¶ 23.)
Instead, pursuant to his Plea Agreement, he was held
accountable for at least 1.5 kilograms of crack cocaine.
drug trafficking offense earned him a base offense level of
38 under the 2006 U.S. Sentencing Commission Guidelines
(“Sentencing Guidelines”),  and subjected him
to a statutory mandatory minimum of 20 years imprisonment
with a maximum of life. (PSR at 1, 26.) Due to Petitioner's
cooperation and guilty plea, however, his offense level was
reduced from 38 to 35. (Id. ¶¶ 4, 87.)
Moses' firearms offense also subjected him to a statutory
mandatory minimum of 5 years imprisonment with a maximum of
life,  to be served consecutively. (Id. at
1; id. ¶ 89.) Finally, he qualified as a career
offender pursuant to § 4B1.1(c)(2) of the Sentencing
Guidelines and received a sentence enhancement. (Id.
November 18, 2011, Moses filed a Motion for Retroactive
Application of Sentencing Guidelines to Crack Cocaine
Offenses. [Dkt. 35.] On July 11, 2012, this Court issued an
Amended Order, reducing Petitioner's sentence on Count 1
from 292 months to 240 months. [Dkt. 47.] Moses' sentence
on Count II remained the same: 60 months. [Id.] His
new combined sentence was 300 months. [Id.]
22, 2016, Moses petitioned to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255 in light of
the United States Supreme Court's recent holding that the
residual clause of the Armed Career Criminal Act of 1984
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is
unconstitutionally vague. See Johnson v. United
States, 135 S.Ct. 2551 (2015); see also Welch v.
United States, 136 S.Ct. 1257 (2016) (holding that
Johnson applies retroactively on collateral review).
On July 21, 2016, Moses filed a Motion to Appoint Counsel for
his § 2255 petition. On August 24, 2016, the Government
filed its opposition to Moses' motions. Moses responded
on September 8, 2016. This § 2255 petition and Motion to
Appoint Counsel are now ripe for disposition.
Moses' § 2255 Petition
Standard of Review
28 U.S.C. § 2255, a prisoner in federal custody may
collaterally attack his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or the
laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence was in
excess of the maximum authorized by law; or (4) the sentence
is otherwise subject to collateral attack. See Hill v.
United States, 368 U.S. 424, 426-27 (1962). To prevail
on a § 2255 Motion, the petitioner bears the burden of
proof by a preponderance of the evidence. Miller v.
United States, 261 F.2d 546, 547 (4th Cir. 1958).
under the Antiterrorism and Effective Death Penalty of 1996
(“AEDPA”), a federal district court must dismiss
any § 2255 motion that is filed more than one year after
the date on which: (1) the judgment of conviction becomes
final; (2) the impediment to making a motion, created by
unlawful governmental action, is removed and the petitioner
was prevented from making a motion by such action; (3) the
United States Supreme Court initially recognized the
constitutional right asserted, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (4) the facts
supporting the claims presented could have been discovered
with due diligence. 28 U.S.C. § 2255(f). A petitioner
must demonstrate that the petition was timely filed under
§ 2255 or that his untimely petition may be salvaged by
equitable tolling principles. See Holland v.