Moore v. USA

Filing 9

ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), DISMISSING CASE and DECLINING to issue certificate of appealability. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 5/26/16. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DUANE L. MOORE,
Petitioner,

Civil Case No. 14-cv-363-DRH
Criminal Case No. 11-cr-30188-DRH

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
I.

Introduction

This matter is before the Court on petitioner Duane L. Moore’s motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). The
government filed its response in opposition of Moore’s § 2255 petition (Doc. 3).
Thereafter, Moore filed a reply (Doc. 5). Moore also filed a motion to supplement
his original proceeding to add a claim challenging the magistrate judge’s
acceptance of his guilty plea (Doc. 8). For the following reasons, petitioner’s
motion for relief pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED 1.

1

Having examined the record, the Court concludes Moore’s claims do not warrant an
evidentiary hearing. See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (“for
a hearing to be granted, the petition must be accompanied by a detailed and specific affidavit
which shows that the petitioner [has] actual proof of the allegations going beyond mere
unsupported assertions”); Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir. 2000)
(held that a hearing not required where the record conclusively demonstrates that defendant
is not entitled to relief on § 2255 motion); Cooper v. United States, 378 F.3d 638, 641; see
also Rules 4(b) and 8(a) of Rules Governing Section 2255 Proceedings).
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II.

Background

On October 19, 2011 the grand jury indicted Petitioner Duane L. Moore
with a single count indictment charging him with distribution of cocaine base
(USA v. Moore, 11-cr-30188, (Doc. 1)). Following arraignment, the Federal Public
Defender’s Office was appointed to represent Moore. Following the FPD’s
withdrawal on December 20, 2011, Moore was appointed CJA Panel Attorney
William D. Stiehl , Jr. to represent him (Doc. 16).
Moore pleaded guilty to distribution of cocaine base on January 30, 2012
(Cr. Doc. 20). That same day, the parties filed a stipulation of facts (Cr. Doc. 22).
On May 4, 2012, Moore was sentenced to 216 months’ imprisonment (Cr. Doc.
30). Because the government filed an information charging Moore with multiple
prior

felony

convictions,

Moore’s

sentence

included

a

career

offender

enhancement. Thereafter, on May 8, 2012, Moore filed a notice of appeal (Cr. Doc.
37). A. Brian Threlkeld was then appointed as appellate counsel to represent
Moore on appeal (Doc. 44).
On Appeal, Moore argued that it was error to set his maximum term of
imprisonment to 30 years because it was not mentioned in the indictment. As the
Seventh Circuit stated, 21 U.S.C. § 851 “does not require such a mention; all it
requires is an information filed “before entry of a plea of guilty.” That occurred,
and the effect of the information was discussed in open court before Moore
entered his plea. (United States v. Moore, No. 12-2127, Doc. 26) (7th Cir. March
19, 2013).

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On June 17, 2013, the Seventh Circuit issued a mandate dismissing
Moore’s appeal and stating that, “[i]n light of counsel’s memorandum indicating
that Moore remains content with his plea of guilty after discussing the issue
identified in our order of March 19, we accept the Anders filing, allow counsel to
withdraw, and dismiss the appeal as frivolous” (Cr. Doc. 54-1).
Subsequent to the dismissal of his appeal, on March 20, 2014, Moore filed
his petition seeking relief under 28 U.S.C. § 2255 (Doc. 1). In his § 2255 petition
and supplement, Moore raises two claims: (1) ineffective assistance of counsel for
failing to raise certain objections to the PSR at sentencing; and (2) constitutional
challenge to the validity of Moore’s guilty plea before the magistrate judge. 2
III.

Law

A prisoner may move to vacate, set aside or correct his sentence if he
claims “the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255 is an extraordinary remedy because it asks the district court
“to reopen the criminal process to a person who has already had an opportunity
for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Accordingly, relief under Section 2255 is “reserved for extraordinary situations,”

2

Moore’s challenge surrounding his guilty plea comes following the Seventh Circuit’s decision
in United States v. Harden, 758 F.3d 886 (7th Cir. 2014). Although Moore does not mention
Harden by name in his petition, the Court will construe this argument to include a Harden
claim.
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Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v.
Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to
Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481
F.3d 932, 935 (7th Cir. 2007).
Unless a movant demonstrates changed circumstances in fact or law, he
may not raise issues already decided or waived on direct appeal. Olmstead v.

United States, 55 F.3d 316, 319 (7th Cir. 1995).

A petitioner cannot raise

constitutional issues that he could have, but did not directly appeal, unless he
shows good cause for, and actual prejudice from, his failure to raise them on
appeal, or unless failure to consider the claim would result in a fundamental
miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998);

Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d
429, 433 (7th Cir. 2000). Likewise, a Section 2255 motion cannot pursue nonconstitutional issues that were not raised on direct appeal regardless of cause and
prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only
way such issues could be heard in the Section 2255 context is if the alleged error
of law represents “a fundamental defect which inherently results in a complete
miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).
Moore raises two claims, one of which he purports to be a claim of
ineffective assistance of counsel. To succeed on an ineffective assistance of
counsel claim, a petitioner must demonstrate (1) his attorney’s performance “fell
below an objective standard of reasonableness,” and (2) “but for counsel’s

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unprofessional errors the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984). To satisfy the first prong,
“the Court must determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally
competent assistance.” Id. at 690. To satisfy the second prong, a petitioner must
demonstrate to a “reasonable probability” that without the unprofessional errors,
“the result of the proceeding would have been different.” Id. at 696.
A district court’s analysis begins with a “strong presumption that the
defendant’s attorney rendered adequate representation of his client.” United

States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a petitioner must
overcome a heavy burden to prove that his attorney was constitutionally deficient.

Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006). In order to establish
that counsel’s performance was deficient, the defendant must show errors so
serious that “counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir.
2012). The Court now turns to Moore’s claims.
IV.

Argument

a. Claim 1: Petitioner’s Attorney Was Not Ineffective for Failing to Object to
the Consideration of Prior Convictions For Purposes of Career Offender
Status
Petitioner Moore’s first ground for relief asserts a claim for ineffective
performance by his attorney for failing to object to the application of prior felony
convictions in considering Moore’s career offender status under Taylor v. United

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States, 495 U.S. 575 (1990). In response, the government argues that Moore’s
reliance on Taylor is misplaced and in fact, Taylor does not affect any of Moore’s
Career Offender predicates.

Taylor set forth a general rule for classifying burglary convictions under the
Armed Career Criminal Act (“ACCA”). Because the text of the ACCA does not
define “burglary,” Taylor held that sentencing courts must compare the elements
of the predicate conviction (whether or not formally labeled “burglary”) with the
elements of “generic burglary.” 495 U.S. at 599–600. In this case, none of Moore’s
predicate convictions related to robbery.
However, even with setting aside case number 01-CF-2163, the PSR
identified multiple convictions in Mr. Moore’s record that qualify as crimes of
violence or controlled substance violations: Unlawful Discharge of a Firearm (01CF-376); Unlawful Delivery of a Controlled Substance (01-CF-3063, 01-CF-3065,
01-CF-3068 and 01-CF-3069); and Unlawful Delivery of a Controlled Substance
within 1,000 feet of a Church (08-CF-1650) (Cr. Doc. 24).
Section 4B1.1 provides that “a defendant is a career offender if (1) he is at
least eighteen years old at the time he committed the offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either “a crime of violence or a controlled substance offense.”
UNITED STATES SENTENCE COMMISSION, GUIDELINES MANUAL, § 4B1.1(a)(Nov. 2015).
The Guidelines provide clear guidance that convictions which satisfy the

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aforementioned factors qualify as a “prior felony conviction” for purposes of
determining a defendant’s career offender status. Id. at , § 4B1.2, n. 1. Moore’s
prior convictions, noted above, qualify for a career offender classification, as set
forth by the Commission.
Moore argues that his counsel should have raised a “Taylor objection” at
sentencing regarding Moore’s classification as a career offender. However, based
on Moore’s prior convictions, and the Taylor holding, his attorney would have
known that an argument based on Taylor’s interpretation of “burglary” would
have no bearing on Moore’s sentence. The fact that counsel did not object to the
prior drug convictions when calculating career offender status does not establish
ineffective assistance of counsel under either prong of Strickland. See United

States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003) (“A defendant's lawyer has no
duty to make a frivolous argument.”). In fact, Moore’s arguments are not
suggestive of either prong of Strickland.
Based on the law of this Circuit, a defendant's attorney has no duty to make
a frivolous argument to the Court. See United States v. Rezin, 322 F.3d 443, 446
(7th Cir. 2003). Therefore, it is clear that Moore’s ineffective assistance of counsel
claim here is meritless. This same sentiment was conveyed by the Seventh Circuit
during Moore’s appeal:
“The career offender Guideline says that two prior convictions for
drug offenses or crimes of violence suffice. So there is no colorable
ground on which to contest the career-offender enhancement. And,
since Moore’s sentence lies within a properly calculated range, it is
presumptively reasonable. See Rita v. United States, 551 U.S. 338,
347 (2007). Counsel rightly concludes that the district judge could
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not plausibly be accused of ignoring or misapplying the statutory
factors. See 18 U.S.C. §3553(a).”
(United States v. Moore, No. 12-2127, Doc. 26) (7th Cir., March 19, 2013).
Accordingly, the issue surrounding his career offender status was raised
and denied on appeal, thus barring relief at this juncture. Olmstead v. United

States, 55 F.3d 316, 319 (7th Cir. 1995). Moore’s claim for ineffective assistance
of counsel also fails, because Moore presents no evidence that the outcome of the
proceeding would have been different, or that he was prejudiced by the
information and advice from his attorney.
Ultimately Moore’s challenge of his career offender status was denied by the
Seventh Circuit because Moore’s criminal history included more than enough
convictions to qualify him as a career offender. The Court noted Moore’s long
history of drug offenses, criminal violence, and difficulty in complying with postjudgment supervision. As a result, any objection to the career offender
enhancement would not have changed the outcome of the proceedings. Therefore,
given

the

strong

presumption

that Moore’s

attorney rendered

adequate

representation of his client in this case, and on the basis of the above, Moore’s
first ground for relief is denied.

b. Claim 2: Validity of Magistrate Judge’s Acceptance of Moore’s Guilty Plea
Moore next seeks relief alleging that the United States Magistrate Judge was
without authority to accept his guilty plea. Moore raised this argument in his
supplement to the petition (Doc. 8).

Moore argues that the United States

Magistrate Judge lacked statutory authority to take his felony guilty plea.
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In United States v. Harden. 758 F.3d 886 (7th Cir.2014), , the Seventh
Circuit determined that, under the Federal Magistrates Act, magistrate judges
are “not permitted to accept guilty pleas in felony cases and adjudge a defendant
guilty.” Harden, 758 F.3d at 888–91. In the instant case, Moore’s plea of guilty to
distribution of cocaine base was accepted by a magistrate judge. However, for the
reasons discussed below, Harden does not provide a basis for relief in the instant
case.

Harden does not announce a new rule of criminal procedure. Rather,
Harden concluded that the disputed procedure violated already existing rules in
the Federal Magistrates Act. Harden is premised on longstanding Supreme Court
precedents that were available to Moore at the time he filed his appeal. See, e.g.,

Peretz v. United States, 501 U.S. 923, 931–33 (1991); Johnson v. Ohio, 419 U.S.
924, 925 (1974); Brady v. United States, 397 U.S. 742, 748 (1970). Thus, Moore
could have asserted on direct appeal (as did Harden) that allowing a magistrate to
accept his plea of guilty violated the Federal Magistrates Act. As Moore failed to
raise this issue on direct appeal, the claim has been waived during his collateral
attack. See 28 U.S.C. § 2255; Belford v. United States, 975 F.2d 310, 313 (7th
Cir.1992), overruled on other grounds by Castellanos v. United States, 26 F.3d
717 (7th Cir.1997)(A Section 2255 petition cannot raise nonconstitutional issues
that could have been but were not raised on direct appeal); Barnickel v. United

States, 113 F.3d 704, 706 (7th Cir.1997) (“Nonconstitutional claims like this one,

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which could have been raised on direct appeal but were not, are deemed waived
even without taking cause and prejudice into account.”).
Although the Seventh Circuit has recognized Section 2255 as the proper
vehicle for bringing a Harden claim, United States v. Burgard, 675 F.3d 1029 (7th
Cir.2012) cert. denied, 133 S.Ct. 183, 184 L.Ed.2d 92 (2012), the Court notes
that Moore exhausted his direct appeal without raising the Harden issue until
now. As mentioned above, Harden is premised on longstanding Supreme Court
precedents that were available to Moore at the time he filed his appeal. Therefore,
Moore’s Harden claim was ripe at the time of his direct appeal, but he failed to
raise the issue. Therefore Moore is barred from said relief during his collateral
attack. Accordingly, Moore’s second ground for relief is denied.
V.
Under Rule 11(a) of

Certificate of Appealability
THE

RULES GOVERNING SECTION 2255 PROCEEDINGS, the

“district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” A habeas petitioner does not have an
absolute right to appeal a district court’s denial of his habeas petition; he may
appeal only those issues for which a certificate of appealability has been granted.

See Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). For a court to
issue a certificate of appealability, a petitioner must make a “substantial showing
of the denial of a constitutional right,” meaning, “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to deserve

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encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); 28 U.S.C. §
2253(c)(2).
As to Moore’s claims, the Court finds that reasonable jurists would not
debate that the petition does not present a valid claim of ineffective assistance of
counsel and the claims do not present evidence of constitutionally deficient
attorney performance; nor do they demonstrate resulting prejudice. Further, the
Court finds that reasonable jurists could not differ on these conclusions.
Therefore, the Court declines to certify any issues for review pursuant to 28
U.S.C. § 2253(c) and, thus, DENIES a certificate of appealability.
VI.

Conclusion

For the reasons as discussed herein, Moore’s motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence, is DENIED (Doc. 1), and Moore’s
claims are DISMISSED WITH PREJUDICE. The Court shall not issue a
certificate of appealability. Furthermore, the Clerk is instructed to close the file
and enter judgment accordingly.
IT IS SO ORDERED.
Signed this 26th day of May, 2016.

Digitally signed by
Judge David R.
Herndon
Date: 2016.05.26
10:46:24 -05'00'
United States District Judge

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