Moore v. USA
ORDER dismissing without prejudice as successive 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Richard Voorhees on 10/22/14. (Pro se litigant served by US Mail.)(smj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
MALIK MONTREASE MOORE,
UNITED STATES OF AMERICA,
THIS MATTER is before the Court on an initial review of Petitioner’s motion to vacate,
set aside or correct sentence, filed pursuant to 28 U.S.C. § 2255. No response is necessary from
the Government. For the reasons that follow, the § 2255 motion will be dismissed as successive.
Petitioner and twelve others were charged by the grand jury in this district with one count
of conspiracy to possess with intent to distribute 50-grams or more of cocaine base, and 5kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count One). (5:05-CR-00235,
Doc. No. 3: Indictment). After returning the indictment, the Government filed notice of its
intention to seek enhanced penalties against Petitioner pursuant 21 U.S.C. § 851. The
Government alleged that Petitioner had been convicted in North Carolina of two controlled
substance offenses: one for the sale of cocaine in August 2000, and a second conviction for the
sale of cocaine in July 2003. (Id., Doc. No. 19: § 851 information). Petitioner elected to plead not
guilty and was later found guilty by a jury of the conspiracy charge in Count One. The jury
found that Petitioner was responsible for 50-grams or more of cocaine base, and they found that
the Government had failed to prove that he was responsible for 5-kilograms or more of cocaine,
finding instead that Petitioner was responsible for less than 500 grams of cocaine in the
conspiracy. (Id., Doc. No. 334: Jury Verdict).
A presentence report (PSR) was prepared in advance of Petitioner’s sentencing hearing.
The probation officer identified the two convictions for the sale of cocaine that the Government
noticed in the § 851 information. For the 2000 conviction, Petitioner was sentenced to a
suspended term of 15-months’ imprisonment which was later activated after his probation was
revoked. For the 2003 conviction Petitioner was given a suspended sentence of 13-16 months in
prison. (Id., Doc. No. 570: PSR ¶¶ 33, 35).
Petitioner appeared with his counsel for sentencing and after hearing from the parties, the
Court sentenced Petitioner to a term of life imprisonment. (Id., Doc. No. 421: Judgment).
Petitioner appealed to the United States Court of Appeals for the Fourth Circuit and his claims
were rejected and his judgment affirmed in all respects. See United States v. Moore, 305 F.
App’x 130 (4th Cir. 2008) (unpublished), cert. denied, 556 U.S. 1227 (2009). Petitioner then
filed a § 2255 motion, which was dismissed after the Court found that his claims were either
without merit or procedurally barred because he failed to raise the issues on direct appeal. (5:10CV-00046-RLV, Doc. No. 2). The Fourth Circuit dismissed Petitioner’s appeal. United States v.
Moore, 393 F. App’x 101 (2010) (unpublished).
Petitioner has now filed a second § 2255 motion this time contending his prior 2003
conviction for the sale of cocaine was erroneously relied upon to qualify him for the enhanced
sentence of life imprisonment because it did not subject him to a sentence in excess of one year.
(5:14-CV-00150, Doc. No. 1). Petitioner argues that the State court sentenced him to a term of 9-
11 months for that offense and because that term did not exceed one year, it could not support his
sentencing enhancement. (5:14-CV-00150, Doc. No. 1 at 5). Petitioner cites the Fourth Circuit’s
en banc decision in United States v. Simmons, 649 F.3d 237 (2011), in which the Court that held
that in order for a prior controlled substance offense to support a sentencing enhancement, the
sentencing court may only examine the criminal record of the defendant that is being sentenced
to determine whether a sentence in excess of one year was possible, and not a hypothetical
defendant with the worst possible record.1
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing
courts are directed to promptly examine motions to vacate, along with “any attached exhibits and
the record of prior proceedings” in order to determine whether a petitioner may be entitled to any
relief. The Court has considered the record in this matter and applicable authority and concludes
that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides, in relevant part,
that “[a] second or successive motion [under Section 2255] must be certified as provided in
Section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant guilty of the
As the Court previously noted, Petitioner’s 2003 conviction resulted in a suspended sentence of 13-16 months
therefore he received a sentence that was in excess of one year even though it was suspended. Put another way, if
Petitioner had violated the terms of his probation the trial court could have activated the full sentence just as it did
for his 2000 conviction and he could have served up to 16 months in prison.
(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).
Petitioner has provided no evidence that he has obtained the necessary authorization from
the Fourth Circuit to file the present § 2255 motion. The Court is therefore without jurisdiction to
consider the merits, if any, of the present motion. See In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997) (en banc); United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
IT IS, THEREFORE, ORDERED that Petitioner’s Section 2255 motion to vacate is
DISMISSED without prejudice as successive. (Doc. No. 1).
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, this Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); MillerEl v. Cockrell, 537 U.S. 322, 336-38 (2003) (stating that in order to satisfy § 2253(c), a
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000)
(holding that when relief is denied on procedural grounds, a petitioner must establish both that
the correctness of the dispositive procedural ruling is debatable and that the petition states a
debatably valid claim of the denial of a constitutional right).
The Clerk is respectfully directed to close this civil case.
IT IS SO ORDERED.
Signed: October 22, 2014
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