United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
McKinley Moyer has moved to vacate, set aside, or correct his
federal sentence under 28 U.S.C. § 2255. The government
has filed a motion to dismiss, to which Moyer has responded,
making the matter ripe for consideration. For the reasons
that follow, the government's motion to dismiss will be
granted and Moyer's motion to vacate will be denied.
was indicted by a federal grand jury on August 21, 2014.
Count One of the indictment charged Moyer with possession of
a firearm after having been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). Count Two charged
him with possession with intent to distribute a measurable
quantity of a mixture or substance containing cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count
Three charged him with possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. §
entered a plea of guilty to Count Two of the indictment on
November 12, 2014. Under the terms of the written plea
agreement, the parties stipulated, pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure, that
Moyer would be sentenced to a term of imprisonment of 144
months. Moyer also agreed to waive his right to appeal his
sentence, and his right to collaterally attack his conviction
or sentence unless such attack is based on ineffective
assistance of counsel. In return, the government agreed to
dismiss the remaining counts of the indictment.
the guilty plea hearing, Moyer affirmed that he had received
an adequate opportunity to read and discuss the plea
agreement with his attorney, that he understood the plea
agreement, and that no one had made any promises or
representations regarding the disposition of the case other
than those set forth in the plea agreement. Plea H'rg Tr.
at 10, Docket No. 62. Moyer further affirmed that no one had
attempted to coerce or compel him to plead guilty, and that
he was pleading guilty because he was, in fact, guilty of the
offenses with which he was charged. Id. at 10-11.
Moyer also indicated that he understood the parties'
agreement under Rule 11(c)(1)(C), and the fact that he would
be sentenced to a term of imprisonment of 144 months if the
court approved the agreement. Id. at 11. Likewise,
Moyer affirmed that he understood the waiver provisions in
the plea agreement. Id. at 12.
court subsequently reviewed the constitutional rights that
Moyer would waive if he pled guilty. Notwithstanding all of
the valuable rights that he would waive by pleading guilty,
and the fact that acceptance of the plea agreement would
result in him being sentenced to a term of imprisonment of
144 months, Moyer indicated that he still wished to plead
guilty. Id. at 27. The court then asked Moyer to
explain what he had done that made him believe that he was
guilty of the controlled substance offense charged in Count
Two of the indictment. In response, Moyer advised the court
that he "possessed a measurable quantity of cocaine,
" and that he "intended to distribute it or sell
it." Id. at 28.
court then called upon the Assistant United States Attorney
("AUSA") to offer evidence in support of the
proposed plea of guilty. Proceeding by proffer, the AUSA
summarized the government's evidence as follows:
Your Honor, the events leading to the indictment occurred on
the 10th of July of this year in the City of Roanoke in the
Western District of Virginia. The case ensued from a search
warrant that was conducted on Mr. Moyer's residence.
Essentially, the police had had information that he was
selling cocaine. They watched the residence, they had an
informant that told them what was inside, and as they
watched, they saw someone apparently do a transaction with
Mr. Moyer, stopped that person, and indeed found cocaine.
Based on that, they obtained a state search warrant and went
Mr. Moyer's residence was a room, essentially, in a
boardinghouse. He had a room in a larger structure, and the
door to that room is controlled by a padlock on a hasp. It
turns out that Mr. Moyer had the key to that padlock.
So the police went inside. In searching, they found 16 grams
of what was determined to be cocaine powder, digital scales,
baggies, also discovered a 9-millimeter pistol. There were a
number of items indicating that, in fact, Mr. Moyer did live
there, documents, medication, clothing, that sort of thing.
They spoke to him briefly and he did admit that his DNA would
have been on the gun. And this is Mr. Moyer.
Id. at 28-29. When asked if the summary of the
evidence was consistent with Moyer's understanding as to
what the government would have been able to prove if the case
had gone to trial, Moyer responded in the affirmative.
Id. at 30.
conclusion of the hearing, the court inquired as to whether
Moyer was satisfied with the services that his attorney had
rendered on his behalf. Moyer indicated that he was satisfied
"with all the components" of his attorney's
services in his case, that there was nothing that the court
needed to know about the attorney's representation, and
that he did not have any questions for his attorney or the
court. Id. at 32-33. Accordingly, the court
determined that Moyer was capable of making an informed plea,
that he understood the nature and consequences of his plea,
and that his plea of guilty was a knowing and voluntary plea
supported by an independent basis in fact as to each of the
essential elements of the controlled substance offense.
Id. at 35.
preparation for sentencing, a probation officer prepared a
presentence investigation report ("PSR"), which
designated Moyer as a career offender under § 4B1.1 of
the United States Sentencing Guidelines. The career offender
designation was based on prior convictions in the Circuit
Court for the City of Roanoke for second degree murder and
unlawful wounding. As a career offender, Moyer was subject to
an enhanced range of imprisonment of 151 to 188 months under
the Advisory Guidelines.
appeared for sentencing on February 9, 2015. The court
adopted the presentence report and determined that Moyer
qualified for the career offender designation. However, the
court departed from the career offender range and imposed the
144-month term of imprisonment agreed upon by the parties
under Rule 11(c)(1)(C). Moyer did not appeal his conviction
December 11, 2015, Moyer moved to vacate his sentence under
28 U.S.C. § 2255. The original motion, which was filed
pro se, sets forth the following claims of ineffective
1. Defense counsel failed to move to dismiss the indictment
after Moyer told him that he had been improperly detained for
more than two hours.
2. Defense counsel allowed Moyer to be designated as a career
offender, even though the designation may be unconstitutional
under Johnson v. United States. 135 S.Ct. 2551
(2015), and was based ...