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Moses v. United States

United States District Court, E.D. Virginia, Alexandria Division

October 6, 2016

MICHAEL NEASON MOSES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          JAMES C. CACHERIS JUDGE

         This 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 Petitioner's motions.

         I. Background

         On 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.

         Moses' conviction arose from the following circumstances.[1] 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.)

         On 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. (Id.)

         Moses' drug trafficking offense earned him a base offense level of 38 under the 2006 U.S. Sentencing Commission Guidelines (“Sentencing Guidelines”), [2] and subjected him to a statutory mandatory minimum of 20 years imprisonment with a maximum of life.[3] (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, [4] to be served consecutively.[5] (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. ¶ 67.)

         On 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.]

         On June 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.

         II. Analysis

         A. Moses' § 2255 Petition

         i) Standard of Review

         Under 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).

         However, 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. ...


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