Moses v. United States of America

Filing 2

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 12/18/2014. (c/m 12/19/14 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

KEON MOSES
Petitioner
v
UNITED STATES OF AMERICA
Respondent

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Civil Action No. CCB-14-3763
Criminal Action No. CCB-02-0410

MEMORANDUM
Pending is Keon Moses’s second motion to vacate, set aside or correct sentence filed
pursuant to 28 U.S.C. § 2255. (ECF No. 637.) Moses provides no evidence the motion has been
certified by the United States Court of Appeals for the Fourth Circuit, and the motion will be
dismissed without prejudice.
BACKGROUND
Keon Moses was convicted by a jury of conspiracy to possess with the intent to distribute
and to distribute fifty grams or more of cocaine base, unlawful use and brandishing of a firearm,
and unlawful use of a firearm causing death, and was sentenced to life without the possibility of
release. The United States Court of Appeals for the Fourth Circuit affirmed his conviction on
November 13, 2007 in United States v. Foster, 507 F.3d 233 (4th Cir. 2007).
Moses’s first motion to vacate was denied on October 7, 2010. (ECF Nos. 551, 581, 582.)
The United States Court of Appeals for the Fourth Circuit denied his request for a certificate of
appealability. (ECF No. 594.)

DISCUSSION
Moses brings this § 2255 motion pursuant to 28 U.S.C. § 2255(f)(3) and premised on
Rosemond v. United States, 134 S. Ct. 1240 (2014). Insofar as Moses asserts his claims are
timely under § 2255(f)(3) because they arose after Rosemond was decided in 2014, his position is
unavailing. Under § 2255(f)(3), a one-year limitations period begins to run on “the date on which
the right asserted was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255(f)(3) (emphasis added). In Rosemond, 134 S. Ct. at 1240, the
Supreme Court held that to prove a defendant aided and abetted the use of a firearm during a
crime of violence or a drug trafficking crime under 18 U.S.C. § 924(c), the defendant must have
had advance knowledge that a gun would be used in the underlying drug trafficking offense or
crime of violence. Id. at 1249-51. Moses appears to contend that the government did not prove
he had advanced knowledge that guns would be used and that his aiding and abetting convictions
now violate Rosemond. (ECF No. 637 at 14-15).
Moses does not show Rosemond is retroactively applicable to cases on collateral review.
Courts that have considered this question to date have found Rosemond is not retroactively
applicable to cases on collateral review. See, e.g., Linton v. United States, 2014 WL 2964074, at
*1 (D. Md. June 27, 2014); Whitener v. United States, 2014 WL 6808789, at *2 (W.D.N.C.
December 2, 2014); Vazquez-Castro v United States, 2014 WL5302972, at *7 (D.P.R. September
30, 2014); Gentile v. Fox, 2014 WL 3896065, at *8 (C.D. Cal. July 11, 2014) report and
recommendation adopted, 2014 WL 3896071 (C.D. Cal. Aug. 8, 2014). Moreover, the court
notes there was substantial evidence at trial to show Moses had knowledge that guns would be
used during the commission of the crimes for which he was convicted.

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This court lacks jurisdiction to consider second or successive motions filed under 28
U.S.C. § 2255 unless the motion has been certified in advance by a panel of the appropriate
circuit court of appeals and found to contain either (1) newly discovered evidence bearing on the
innocence of the movant, or (2) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
As Moses neither provides evidence he has obtained pre-filing authorization nor demonstrates
Rosemond has retroactive application to cases on collateral review, this case will be dismissed
without prejudice.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the court declines to
issue a certificate of appealability because Moses has not made a substantial showing of a denial
of a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
CONCLUSION
For these reasons, the court will deny and dismiss the motion to vacate without prejudice
by separate order. A certificate of appealability shall not issue.

December 18, 2014
Date

/S/
Catherine C. Blake
United States District Judge

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