MOODY v. USA

Filing 12

ENTRY- DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING CERTIFICATE OF APPEALABILITY. (See Entry.) Copy to petitioner via US Mail. Signed by Judge William T. Lawrence on 8/23/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ANDRE MOODY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 2:12-cv-367-WTL-WGH
2:09-cr-9-WTL-CMM-2

ENTRY DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING
CERTIFICATE OF APPEALABILITY
This cause is before the Court on Petitioner Andre Moody’s motion under 28 U.S.C. §
2255 to vacate, set aside, or correct sentence by a person in federal custody. Dkt. No. 1. The
motion is fully briefed, and the Court, being duly advised, DENIES the motion for the reasons
set forth below. The Court also finds that a certificate of appealability should not issue.
I.

BACKGROUND

Law enforcement officials began investigating Moody’s methamphetamine trafficking
activities in November 2007, after one of Moody’s customers, Misty Sutton, began working as a
confidential informant. Moody was arrested on November 24, 2007, after detectives initiated a
controlled drug buy between Moody and Sutton. Incident to his arrest, a detective searched
Moody’s phone and identified “G” as a recent caller. At that time, nothing was done with the cell
phone information. Moody was ultimately convicted of possession of methamphetamine and
sentenced to probation.
Less than two years later, Moody became involved in another methamphetamine
trafficking investigation. Using Donald Blair, another one of Moody’s customers, as an

informant, law enforcement officials obtained audiotape and videotape of Moody making several
drug transactions. The investigation also revealed that Gonzalo Gutierrez was Moody’s
methamphetamine source. After Moody and Gutierrez were arrested, the DEA subpoenaed cell
phone records for the defendants. Investigators ultimately determined “that the telephone number
of ‘G’ . . . found when searching Moody’s cell phone after his first arrest in 2007 corresponded
to Gutierrez’s cell phone number.” United States v. Moody, 664 F.3d 164, 166 (7th Cir. 2011).
This cell phone evidence, along with witness testimony and the audio/video recordings, was
introduced by the Government during Moody’s jury trial.
On July 21, 2010, the jury convicted Moody of conspiracy to distribute 500 grams or
more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and distribution of
five grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Moody was
sentenced on December 10, 2010, to 292 months’ imprisonment.
Moody appealed his convictions and sentence to the Seventh Circuit arguing that the cell
phone evidence obtained after his arrest in 2007, was “the fruit of an illegal search under the
Fourth Amendment,” and thus, all evidence derived from the initial search of his cell phone
should have been suppressed during his trial. Moody, 664 F.3d at 167. The appellate court
rejected this argument and concluded that, regardless of whether the initial search of Moody’s
cell phone was illegal, the cell phone evidence was properly admitted under the independent
source doctrine.1 According to the Seventh Circuit, “the evidence recovered in the initial search
was ignored until later discovered by an independent source—the subpoenaed cell phone

1

“[T]he independent source doctrine allows the admission ‘of evidence initially
discovered during an unlawful search if the evidence was discovered later through a source
untainted by the initial illegality.’” Moody, 664 F.3d at 167 (quoting United States v. Gonzalez,
555 F.3d 579, 581 (7th Cir. 2009)).
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records—over two years after the initial search, thus freeing it from any taint that would require
its exclusion at trial.” Id. As a result, Moody’s convictions and sentence were affirmed.
Moody now seeks relief from this Court pursuant to 28 U.S.C. § 2255.
II.

STANDARD

A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See, e.g., Davis v. United States, 417 U.S. 333,
343 (1974). A court may grant relief pursuant to § 2255 if a sentence “was imposed in violation
of the Constitution or laws of the United States, or that the court was without jurisdiction to
impose . . ., or that . . . was in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow
and limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental
defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940
F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).
III.

DISCUSSION

Moody argues that his convictions are subject to collateral attack because trial counsel
was ineffective. Moody argues generally that counsel’s knowledge of the case was lacking
because he did not adequately prepare for trial. More specifically, Moody contends that counsel:
1.

Failed to discuss trial strategy;

2.

Failed to investigate;

3.

Failed to effectively cross-examine; and

4.

Failed to subject the prosecution’s case to a meaningful adversarial testing.

Moody’s Br. at 4, Dkt. No. 2.

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As an initial matter, “[a] district court cannot reach the merits of an appealable issue in a
§ 2255 proceeding unless that issue has been raised in a procedurally appropriate manner.”
Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989). Claims of ineffective
assistance of counsel, however, need not be raised on direct appeal and constitute an exception to
the general rule of procedural default. Massaro v. United States, 538 U.S. 500, 509 (2003).
Therefore, Moody need not have raised the issue of ineffective assistance of counsel prior to the
instant motion.
With that said, “[t]he Sixth Amendment entitles criminal defendants to the effective
assistance of counsel.” Bobby v. Van Hook, 558 U.S. 4, 16 (2009) (quotations and citations
omitted). A petitioner, however, “bears a heavy burden in establishing an ineffective assistance
of counsel claim.” Dugan v. United States, 18 F.3d 460, 463 (7th Cir. 1994) (citations omitted).
“An ineffective assistance claim has two components: A petitioner must show that
counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
With regard to an attorney’s performance, “a petitioner must demonstrate that counsel’s
representation ‘fell below an objective standard of reasonableness’ . . . [i.e.,] ‘reasonableness
under prevailing professional norms.’” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at
688). With respect to the prejudice requirement, the petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
Each of Moody’s arguments is discussed below.

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A. Failure to Discuss Trial Strategy
Moody argues that “[c]ounsel never met with [him] to discuss any type of [trial] strategy
once the plea agreement process had come and gone.” Moody’s Br. at 5. Moody, however, fails
to show that counsel was ineffective in this respect.
Regardless of whether counsel’s discussions with Moody prior to trial were deficient,
Moody fails to show that he suffered the requisite prejudice under Strickland. Moody identifies
several aspects of the case that counsel failed to discuss or review with him: trial strategy
generally, CDs containing audiotape and videotape evidence, and individuals identified on the
Government’s witness list. Moody argues that had counsel discussed these items with him, he
would have noted inconsistencies in the witnesses’ statements and instructed counsel to ask the
witnesses certain questions bearing on their credibility.2 Assuming for the moment that counsel
would have ultimately asked all of Moody’s proposed questions and those questions would have
cast doubt on the credibility of those witnesses, Moody nevertheless fails to show that the
outcome of the trial would have been different. The evidence used to convict Moody was far
from circumstantial; there was a “significant amount of audio/video recordings” documenting
Moody’s drug transactions presented at the trial. Moody, 664 F.3d at 168. This type of direct
evidence is hard to overcome. As such, counsel was not ineffective in discussing trial strategy
with Moody.

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Moody argues, among other things, that there was “information contained in police
narratives that contradicted the events seen on the CDs.” Moody’s Br. at 5. Moody, however,
provides no additional information and fails to describe the specific inconsistencies.
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B. Failure to Investigate or Prepare
Moody also argues that counsel failed to adequately investigate certain aspects of his
case, and counsel’s failure to investigate led to counsel’s failure to adequately prepare for trial.
The Court does not agree.
When the allegation of the ineffectiveness of counsel centers on a supposed
failure to investigate, we cannot see how . . . the petitioner’s obligation can be met
without a comprehensive showing as to what the investigation would have
produced. The focus of the inquiry must be on what information would have been
obtained from such an investigation and whether such information, assuming its
admissibility in court, would have produced a different result. . . . The district
court simply cannot fulfill its obligation under Strickland to assess prejudice until
the petitioner has met his burden of supplying sufficiently precise information.
United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (citation omitted).
Moody identifies several areas of the case he believes counsel should have, but failed to
investigate. Specifically, counsel did not investigate “exculpatory evidence” surrounding his
2007 arrest,3 the credibility of the Government’s witnesses,4 and inconsistencies in the witnesses’
statements.5 Moody also argues that “counsel failed to introduce a comparatively voluminous

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According to Moody, Blair was questioned after Moody’s arrest in 2007, and Blair
stated that he had no knowledge of Moody’s involvement with drugs at that time. Moody also
argues that there was evidence that “would have shed a different light on the . . . evidence
presented by the government and more importantly the petitioner’s action and/or intent at the
time of the 2007 alleged crime.” Moody’s Reply at 10, Dkt. No. 11. Moody does not elaborate
on what this “evidence” is.
4

Moody submits several questions he believes counsel should have asked Sutton and
Officer Rogers related to their background and their knowledge of Moody’s drug trafficking, but
he does not articulate what he expects their answers would have been or how these answers
would have impacted the trial.
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Moody claims that “[t]here was testimony given by [him] . . . of the events that
surrounded his arrest and subsequent conviction and they differ from that of testimony given by
Officer Rogers and Misty Sutton.” Moody’s Br. at 7-8. Moody also argues that Officer Lewis’
testimony before the grand jury was different from the information contained in his police
narratives. Moody further claims that the video evidence conflicted with Blair’s testimony.
Specifically, Moody argues that the video shows Blair giving Moody $120.00 and that the
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amount of evidence in the petitioner’s favor.”6 Moody Br. at 8. Yet Moody provides no support
for these arguments. In other words, Moody fails to identify the specific inconsistences in the
witnesses’ statements or the substance of the “voluminous” evidence in his favor.
Moreover, the “exculpatory evidence” cited by Moody and the credibility issues he
alleges do not outweigh the substantial audiotape and videotape evidence supporting his
conviction. Therefore, Moody has not shown that counsel’s failure to investigate prejudiced his
defense. Accordingly, counsel was not ineffective in failing to investigate or prepare for trial.
C. Failure to Effectively Cross-Examine
Next, Moody argues that counsel failed to effectively cross-examine the Government’s
witnesses; specifically, Officer Rogers, Officer Lewis, Sutton, and Blair. Moody, however, fails
to show that counsel’s performance was deficient or prejudicial.
As noted above, “a defendant has a burden of supplying sufficiently precise information,
of the evidence that would have been obtained had his counsel undertaken the desired
investigation, and of showing whether such information . . . would have produced a different
result.” United States v. Rodriguez, 53 F.3d 1439, 1449 (7th Cir. 1995) (quoting United States v.
Kamel, 965 F.2d 484, 499 n. 45 (7th Cir. 1992)) (citation and quotations omitted). In Rodriguez,
the Seventh Circuit analyzed whether defense counsel’s cross-examination of a witness was
deficient. In that case, the court concluded that the petitioner had “explained neither what [the
witness’s] responses to further cross-examination might have revealed nor how those responses

money was for “purchases.” Blair, however, testified that he gave Moody $200.00 in drug
proceeds.
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Moody also claims that “there was exculpatory evidence [Brady Material] in the form of
sworn testimony.” Moody’s Reply at 3.
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might have affected the result” of the trial. 53 F.3d at 1449. Thus, the petitioner failed to
establish that counsel was ineffective.
Here, Moody claims that counsel’s performance was deficient because his crossexamination of Sutton “was noted as being confusing to all parties,” counsel was “blind-sided by
the events of petitioners 2007 arrest,” counsel reinforced the testimony of Blair and Sutton, and
counsel relied mostly on the questions prepared by Moody when he cross-examined the
Government’s witnesses. Moody’s Br. at 10-11. Moody’s arguments, however, stop short of the
requisite showing. He does not articulate how counsel’s cross-examination should have been
different. More importantly, Moody fails to explain what further, or different, cross-examination
might have revealed, or how that information would have affected his trial. Thus, Moody fails to
make the requisite showing under Strickland. As such, counsel was not ineffective with regard to
his cross-examination of the Government’s witnesses.
D. Failure to Subject the Case to Meaningful Adversarial Testing
Lastly, Moody argues that counsel failed to subject the prosecution’s case to a
meaningful adversarial testing. Generally, claims of ineffective assistance of counsel are
evaluated under the Strickland analysis. However, in United States v. Cronic, 466 U.S. 648
(1984), which was decided the same day as Strickland, the Supreme Court
defined three exceptions to Strickland where it is appropriate for a court to
presume prejudice: (1) where there is a “complete denial of counsel” or denial at a
“critical stage” of the litigation; (2) where counsel “entirely fails to subject the
prosecution’s case to meaningful adversarial testing”; and (3) where “although
counsel is available to assist the accused during trial, the likelihood that any
lawyer, even a fully competent one, could provide effective assistance is [very]
small.
McDowell v. Kingston, 497 F.3d 757, 761-62 (7th Cir. 2007) (citing Cronic, 466 U.S. at 659-60).
The Supreme Court has since “clarified what constitutes an ‘entire failure’ by drawing a clear

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distinction between a failure to oppose the prosecution throughout an entire proceeding and a
failure to do so at specific points, concluding that a failure at specific points will not trigger a
presumption of prejudice.” McDowell, 497 F.3d at 793 (citing Bell v. Cone, 535 U.S. 685, 69798 (2002)). Where counsel’s failures relate to specific aspects of a case, a petitioner’s claims
should be reviewed under the Strickland framework. Bell, 535 U.S. at 696.
For the most part, Moody revisits his prior arguments to support his contention that
counsel failed to subject his case to a meaningful adversarial testing. For example, Moody
argues:
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There was evidence on the CDs that was different from what was in the police
narratives and the officers’ grand jury testimony.

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The CDs were never viewed with Moody “to at least rule out what petitioner felt
would have been adversarial testing.” Moody’s Br. at 11.

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“Counsel failed to bring the testimony of Misty Sutton under adversarial testing
because counsel failed to give credence to . . . the fact that narratives by Rogers and
other officers . . . differed from the testimony given by Sutton during direct.” Id. at
12.

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“Counsel never subjected Blair’s testimony to the adversarial testing process when he
failed to bring Blair’s credibility under scrutiny.” Id.

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“Counsel’s cross-examination of government witnesses [Officer] Lewis, [Officer]
Rogers, Sutton, and Blair was deficient and failed the adversarial testing process
because counsel was not aware of the totality of the evidence before him, counsel did
not consult with petitioner, [and] no investigation was conducted.” Id.

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“Counsel’s opening statement said that the government’s case was full of gaps, but
never mounted a defense that would expose those gaps.” Id.

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“Counsel was given information and questions by petitioner that would undermine
the credibility of the investigation and testimony given.” Id. at 13.

Moody’s arguments clearly relate to counsel’s performance during specific points of the
proceedings and do not indicate that counsel failed entirely to oppose the prosecution during a
specific proceeding. Thus, Moody’s claims must be evaluated under the Strickland analysis.
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However, as has already been discussed above, the foregoing arguments are insufficient.
On the whole, Moody fails to support his arguments with detailed evidence and thus fails to
show that counsel’s performance with respect to these issues was deficient or that he suffered
prejudice, as required by Strickland. Accordingly, counsel was not ineffective in these respects.
IV.

CONCLUSION

For the foregoing reasons, Moody’s motion under 28 U.S.C. § 2255 to vacate, set aside,
or correct sentence by a person in federal custody is DENIED.
V.

CERTIFICATE OF APPEALABILITY

Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that Moody has failed
to show that (1) reasonable jurists would find this Court’s “assessment of the constitutional
claims debatable or wrong,” or (2) reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a constitutional right” and “debatable whether [this
Court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The
Court therefore DENIES a certificate of appealability.
SO ORDERED: 08/23/2013
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by U.S. Mail to:
Andre Moody
09230-028
Lexington Federal Medical Center
Inmate Mail/Parcels
P.O. Box 14500
Lexington, KY 40512

Copies to all counsel of record via electronic communication.
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