Mosby v. United States of America
ORDER denying 2 Motion for Evidentiary Hearing. Signed by Magistrate Judge G. R. Smith on 4/10/17. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
LATWON TYRONE MOSBY,
UNITED STATES OF AMERICA,
REPORT AND RECOMMENDATION
Guilty-plea convicted as a felon-in-possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Latwon Mosby seeks
28 U.S.C. § 2255 relief. Doc. 68 & 69;1 see also does. 1 (indictment); 46
(plea agreement); 47 (judgment ordering 95 months' imprisonment).
The Government opposes. Doe. 71.
As set forth by the Eleventh circuit, on appeal from his conviction:
On March 28, 2014, [Officers] Tucker and Samatis, both members
of the Savannah- Chatham Metro Police Department, were
patrolling Westlake Apartments. Westlake is located in a highcrime area of Savannah and has a history of problems with
loitering and drug-related activity. In the course of their patrol,
The Court is citing to the criminal docket in CR414-307 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.
Tucker and Samatis spotted Mosby walking along a second floor
hallway. As Mosby descended to the first floor, Tucker and
Samatis approached him. Tucker asked Mosby if he lived at
Westlake. When Mosby answered yes, Tucker asked which
apartment Mosby lived in. Mosby hesitated and looked around,
which the officers took as a sign that he was trying to fabricate a
credible answer. Tucker then asked Mosby for identification
proving he lived at Westlake, at which point Mosby attempted to
flee. Samatis grabbed Mosby to prevent him from fleeing. While
Samatis grappled with Mosby, Tucker noticed Mosby reaching for
a gun in his pants. After a struggle, the officers subdued and
United States v. Mosby, 630 F. App'x 961, 962-63 (11th Cir. 2015).
Mosby was indicted for possessing a firearm as a felon. Doc. 1. Upon
the advice of counsel, movant conditionally pled guilty, securing a
maximum sentence of ten years. Docs. 42 & 46 (reserving the right to
seek appellate review of the denial of his motion to suppress the gun as
the fruit of an unconstitutional seizure);
see also Presentence
Investigative Report (PSR) at ¶ 57 (advising, based on his total offense
level of 23 and criminal history category of V, a guideline imprisonment
range of 84 to 105 months).
Mosby appealed and lost:
Mosby makes three arguments, all unavailing, that Tucker and
Samatis violated his Fourth Amendment rights. First, he argues
that the officers lacked reasonable suspicion to stop and question
him at the bottom of the stairs. Mosby has forfeited this
argument, however, because he acknowledged in his motion to
suppress that the officers' initial approach and questioning was
the type of consensual police-citizen encounter that does not
implicate the Fourth Amendment.
Mosby's second argument is that the district court incorrectly
found that: (1) his answers to the officers' questions had been
evasive; (2) he had attempted to flee; and (3) Westlake was a high
crime area. . . . None of the findings Mosby challenges warrants
reversal because each was supported by the officers' testimony at
the hearing. . . . There was thus substantial evidence in the
record to support the district court's factual findings on all three of
the facts Mosby challenges, especially since we give "particular
deference to credibility determinations of a fact-finder who had
the opportunity to see live testimony." United States v. Lebowitz,
676 F.3d 1000 9 1009 (11th Cir. 2012) (alteration omitted).
Based on a few minor inconsistencies in the officers' testimony
and police reports, Mosby argues that the district court should not
have credited the officers' testimony. The inconsistencies to which
Mosby adverts, however, are all so trivial as to be inconsequential.
Accordingly, the district court did not clearly err in crediting
Tucker's and Samatis' accounts of the encounter.
Mosby's final argument is that the officers lacked reasonable
suspicion to seize him as he was attempting to get away from
them, but the events preceding Samatis' grabbing Mosby belie
that contention. First, as both officers testified, Westlake is a
high-crime area. That a stop occurred in a high-crime area is a
"relevant contextual consideration[ 1" for purposes of establishing
reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124
(2000). The record also contained evidence that Mosby responded
to the officers' questions in a way that indicated he was lying or at
least being evasive. "[E]vasive, nervous or apprehensive conduct
in response to [officers'] attention[ ] has many times been noted as
a significant factor in the creation of reasonable suspicion."
United States v. Willis, 759 F.2d 1486, 1497 (11th Cir. 1985).
Third, and most obviously, Mosby attempted to flee from the
officers. Flight from officers, particularly in a high-crime area,
supports reasonable suspicion. United States v. Gordon, 231 F.3d
750, 757 (11th Cir.2000). The officers thus had ample bases for
reasonably suspecting that Mosby was engaged in criminal
activity and, therefore, for detaining him.
Mosby, 630 F. App'x at 963-64.
Mosby presents two grounds for relief: (1) counsel deficiently
prepared and argued his suppression motion, and (2) after Johnson, his
prior conviction for Georgia aggravated assault no longer qualifies as a
"crime of violence" to increase his base offense level under the
Sentencing Guidelines. Doe. 347. Both claims are meritless.
A. Ineffective Assistance of Counsel (IAC)
In Strickland v. Washington,
466 U.S. 668, 687 (1984), the
Supreme Court created a two-part test for determining whether
counsel's assistance was ineffective. First, the movant must
demonstrate that his attorney's performance was deficient, which
requires a showing that "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed by the Sixth
Second, he must demonstrate that the defective
performance prejudiced the defense to such a degree that the results of
the trial cannot be trusted.
Id. "[T]he two-part Strickland v.
test applies to challenges to guilty pleas based on
Hill v. Lockhart, 474 U.S. 52, 58
ineffective assistance of counsel."
(1985); Lalani v. United States, 315 F. App'x 858, 860-61 (11th Cir.
Mosby seeks to relitigate his appeal, contending that his counsel
deficiently prepared and argued the motion to suppress the gun that
officers found on him. Doc. 68 at 4-9; see Mosby, 630 F. App'x 961.
Movant focuses upon the Eleventh Circuit's holding that he had
"forfeited" his argument that the officers "lacked reasonable suspicion to
stop and question him at the bottom of the stairs" because he had
acknowledged in his motion to suppress that "the officers' initial
approach and questioning was the type of consensual police-citizen
encounter that does not implicate the Fourth Amendment."
Id. at 963;
see United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003)
("There is nothing in the Constitution which prevents a policeman from
addressing questions to anyone on the streets."). Mosby now contends
that he told counsel (and that counsel should have argued) that the
"initial stop and seizing of him was not in fact consensual because he
felt that he was not in fact free to leave clue to [the] officer blocking his
path." Doe. 69 at 2; see generally United States v. Drayton,
194, 201 (2002) (if the citizen's cooperation is induced by "coercive
means" or if a reasonable person would not "feel free to terminate the
encounter," the encounter is
longer consensual, a seizure has
occurred, and the citizen's Fourth Amendment rights are implicated). 2
But such an argument would have been counter to the sworn,
unrebutted testimony of both officers involved in the encounter (see
doe. 36 at 19-21 & 41-47), as well as Mosby's own testimony at the Rule
11 change of plea hearing.
See cloc. 56 at 24-25 (affirming the factual
accuracy of the offer's testimony and the charge); Blackledge v. Allison,
431 U.S. 63 9 80 n. 19 (1977) ("the representations of the defendant, his
lawyer, and the prosecutor at [a plea] hearing, as well as any findings
made by the judge accepting the plea, constitute a formidable barrier in
any subsequent collateral proceedings."); United States v. Gonzalez-
Mercado, 808 F.2d 796, 800 n. 8 (11th Cir. 1987) ("While Rule 11 is not
insurmountable, there is a strong presumption that the statements
Mosby apparently concedes the Eleventh Circuit's other two findings, that the
district court properly credited the officers' "accounts of the encounter" and that the
officers had "ample bases for reasonably suspecting that Mosby was engaged in
criminal activity and, therefore, for detaining him." Mosby, 630 F. App'x at 963-64;
see docs. 68 & 69.
made during the colloquy are true."). And counsel cannot be deficient
for failing to advance an utterly meritless argument to the Court.
United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (an
attorney is not ineffective for failing to raise meritless claims); see also
Strickland, 466 U.S. at 694 (a defendant must show "that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.");
Wainwright, 811 F.2d 1430, 1434 (11th Cir. 1987) (same).
Movant seeks to exploit the new rule announced in Johnson i'.
United States, 576 U.S. -, 135 S. Ct. 2551 (2015), and made retroactive
by Welch v. United States, 578 U.S. , 136 S. Ct. 1257 (2016), to
neutralize his base offense level enhancement. Mosby, however, was not
The Johnson decision elucidated the "residual clause" of the Armed Career
Criminal Act (ACCA), which provides enhanced penalties for defendants who are
(1) convicted of being felons in possession of firearms in violation of 18 U.S.C.
§ 922(g), and (2) have "three prior convictions . . . for a violent felony or a serious
drug offense, or both." 18 U.S.C. § 924(e)(1). ACCA "violent felonies" (1) have "as
an element the use, attempted use, or threatened use of physical force against the
person of another"; (2) are "burglary, arson, or extortion, [or] involves the use of
explosives"; or (3) "otherwise involve conduct that presents a serious potential risk
of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(i)-(ii). These three
definitions are known, respectively, as (1) the elements clause, (2) the enumerated
crimes clause, and (3) the residual clause. Johnson held that that "residual clause"
is unconstitutionally vague, see 135 S. Ct. 2551, 2557, but said nothing about the
Sentencing Guidelines' similar language.
sentenced under the ACCA. His base offense level was increased under
the Sentencing Guidelines for his prior Georgia aggravated assault
conviction. PSR at ¶J 11-22, 26, 29-32, 33-35 & 56-57; see also U.S.S.G.
§ 2K2.1(a)(4)A (assigning a base offense level of 20 where defendant
"committed any part of the instant offense subsequent to sustaining one
felony conviction of either a crime of violence or a controlled substance
offense."); Shuck v. United States, 2017 WL 465682 at *2 (S.D. Ga. Jan.
31, 2017) (holding Georgia aggravated assault, O.C.G.A. § 16-5-21, "is a
'violent felony' under the elements clause of the ACCA (and, by
extension, the Guidelines) post- Johnson.").
And Johnson, which
invalidated the ACCA residual clause, does not extend to the identical
language of the Sentencing Guidelines' residual clause.
United States, - U.S. -, 2017 WL 855781 (Mar. 6, 2017); see also
United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (same).
Movant thus has no claim for relief, and counsel cannot be faulted
for having failed to pursue a meritless argument. See Jones v. Barnes,
463 U.S. 745, 751 (1983) (there is no "constitutional right to compel
appointed counsel to press nonfrivolous points"); Nyhuis, 211 F.3d at
1344 (to prevail on an IAC claim, the claim itself "must have merit").
Accordingly, Latwon Mosby's § 2255 motion should be DENIED. 4
For the reasons set forth above, it is plain that he raises no substantial
claim of deprivation of a constitutional right. Accordingly, no certificate
of appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b);
Rule 11(a) of the Rules Governing Habeas corpus cases Under 28
U.S.C. § 2255 ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").
Any motion for leave to appeal in forma pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
Because his motion is entirely without merit and his contentions are
unambiguously contradicted by the record, movant's request for an evidentiary
hearing (doc. 69) is also DENIED. Winthrop-Redin v. United States, 767 F.3d 1210,
1216 (11th Cir. 2014) (a hearing is unnecessary "if the allegations are 'patently
frivolous,' 'based upon unsupported generalizations,' or 'affirmatively contradicted
by the record."); Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989)
(same); Lynn, 365 F.3d at 1239 (where the motion "amount[ed] to nothing more than
mere conclusory allegations, the district court was not required to hold an
evidentiary hearing on the issues and correctly denied [movant]'s § 2255 motion.").
captioned "Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. VA. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x
542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
10th day of
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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