Moody v. United States of America

Filing 40

MEMORANDUM OPINION OF THE COURT signed by District Judge Aleta A. Trauger on 12/13/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (jm)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHRISTOPHER MOODY,

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 3:17-cv-00611
Judge Aleta A. Trauger

MEMORANDUM
Before the court is movant Christopher Moody’s Amended Motion (Doc. No. 13) under
28 U.S.C. § 2255 to set aside, vacate and correct an allegedly illegal sentence and Judgment
imposed by another judge of this court. See United States v. Conyers et al., No. 3:09-cr-00240
(M.D. Tenn. Feb. 20, 2014) (Judgment, Doc. No. 2563). (References to the criminal case record
will hereafter be designated as “Crim. Doc. No. __.”) For the reasons set forth herein, the court
will deny the motion and dismiss this action.
I.

PROCEDURAL BACKGROUND
Moody was originally charged in December 2010, in a Sixth Superseding Indictment, 1 on

counts of conspiring to possess with the intent to distribute five or more grams of a mixture
containing a detectable amount of cocaine and crack cocaine and knowingly possessing with the
intent to distribute five or more grams of cocaine and crack cocaine within 1000 feet of a public
housing development. (Crim. Doc. No. 295.) In the Eleventh (and final) Superseding Indictment
issued in November 2013, Moody was charged with eight counts related to drug trafficking and

1

Moody was not named in the original or first five superseding indictments.

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firearms. Specifically, he was charged with (1) using a place within 1000 feet of a school to
manufacture or distribute a controlled substance, in violation of 21 U.S.C. §§ 841, 856, and 860
(Counts 5 and 12); manufacturing and possessing crack cocaine with intent to distribute, within
1000 feet of a school, in violation of 21 U.S.C. §§ 841 and 860 (Count 6); possessing a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 7);
conspiracy to possess with intent to distribute cocaine and crack cocaine, in violation of 21
U.S.C. § 841(a)(1) (Count 8); possession with intent to distribute cocaine and crack cocaine near
a public housing facility, in violation of 21 U.S.C. §§ 841 and 860 (Count 9); and being a
previously convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g) (Counts 10 and 11). (Crim. Doc. No. 2468.)
A five-day jury trial was conducted beginning November 19, 2013 before the Honorable
William J. Haynes, Jr., retired, after which the jury returned a verdict of guilty on all counts.
(Redacted Verdict Form, Crim. Doc. No. 2504.) At the sentencing hearing conducted on
February 14, 2014, Moody was sentenced to life imprisonment on Counts 5, 6, 9, and 12; 360
months on Count 8, to run concurrently with the life sentence; 360 months on Counts 10 and 11,
to run concurrently with the life sentence; and 60 months on Count 7, to run consecutively to the
life sentence. (Judgment, Crim. Doc. No. 2563.) The conviction and sentence were affirmed on
direct review. United States v. Moody, 631 F. App’x 392 (6th Cir. 2015), cert. denied, Moody v.
United States, 136 S. Ct. 1689 (April 18, 2016).
Moody filed his original Motion to Vacate in this court on March 20, 2017. (Doc. No. 1.)
The court thereafter appointed counsel, who filed the Amended Motion to Vacate on April 17,
2017. (Doc. No. 13.) After numerous extensions of the deadline, the United States filed its
Response in opposition to the motion on June 15, 2018. (Doc. No. 34.) Moody filed a Reply on
October 1, 2018. (Doc. No. 39.)

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II.

THE HABEAS CLAIMS
The court construes the Amended Motion filed by counsel as entirely superseding the

original pro se motion. The Amended Motion asserts the following claims:
(1) That the trial court erred in instructing the jury that, as to Counts 5, 6, 7, and 10 of the
Eleventh Superseding Indictment, the movant could be convicted if “[t]he government . . .
convince[s] you beyond a reasonable doubt that the crimes charged happened on or before
November 13, 2008” (Doc. No. 13, at 1 (quoting Crim. Doc. No. 2663, at 191), because this
meant the jury was instructed that it could convict Moody based on events that fell outside the
statute of limitations;
(2) That the jury verdicts on Counts 5, 6, 7, and 10 violated Moody’s right to due process
insofar as he was convicted based on events that took place outside the statute of limitations;
(3) That the jury verdicts on Counts 5, 6, 9, and 12 violate Moody’s right to due process
under the Fifth Amendment, because the jury was not instructed to find that he had any culpable
mental state regarding knowledge of being, or intent to be, within 1000 feet of a school or public
housing facility;
(4) That the “enhanced sentence of life imprisonment” on Counts 5, 6, 9 and 12, which
was premised on prior convictions for felony drug offenses, violates Moody’s rights under the
Fifth, Sixth, and Eighth Amendments to the United States Constitution, because the fact of these
prior convictions was not charged in the indictment or found by the jury beyond a reasonable
doubt;
(5) That the enhanced sentence on Counts 5, 6, 9, and 12 under 21 U.S.C. § 860, based on
prior state court felony drug convictions, violated 21 U.S.C. § 860(b), which permits
enhancement based only on federal felony drug convictions under § 860 itself;
(6) That Moody’s life sentence on Counts 5, 6, 9, and 12 constitutes cruel and unusual

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punishment in violation of the Fifth and Eighth Amendments, insofar as it was based on “prior
minor felony drug offenses which were then used to ratchet [Moody’s] current offenses to a life
sentence without parole” (Doc. No. 13, at 6), and insofar as life sentences for drug offenses are
exceedingly rare, this sentence was imposed disparately based on Moody’s race, is
disproportionate to the offenses of conviction, is not narrowly tailored to serve a compelling
government interest, and is not justified by any valid penological theory;
(7) That the government’s use of 21 U.S.C. § 851 to seek a life sentence violates
Moody’s right to equal protection, because this statute is “used disproportionately and unfairly
and in the government’s unlimited discretion to target [Moody], an African-Americans [sic], for
a life sentence” (Doc. No. 13, at 7);
(8) That Moody’s right to due process was violated by the court’s instructing the jury that
it could convict him on possession of controlled substances or a firearm based on “constructive
possession,” even though the governing statutes require actual possession;
(9) That Moody’s convictions on Counts 5 and 12 are invalid and in violation of the Fifth
and Sixth Amendments to the United States Constitution, because Moody was indicted merely
for using a location to manufacture or to possess with intent to distribute “controlled substances,”
but the Eleventh Superseding Indictment did not identify what controlled substances were
involved, and the jury was never instructed as to the definition of “controlled substance” or to
find the existence of a controlled substance beyond a reasonable doubt (Doc. No. 13, at 8);
(10) That Moody’s convictions violate Johnson v. United States, 135 S. Ct. 2551 (2015);
(11) That Moody’s convictions violate Batson v. Kentucky, 476 U.S. 79 (1986), and the
Fifth Amendment, because potential jurors were removed in part or in substantial part because of
race;
(12) That Moody was deprived of the effective assistance of counsel at trial, in violation

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of the Sixth Amendment;
(13) That Moody was deprived of the effective assistance of counsel on appeal; and
(14) That the cumulative effect of all of the errors at trial deprived Moody of the right to
a fair trial, in violation of the Fifth Amendment.
III.

LEGAL STANDARDS
Moody seeks relief under 28 U.S.C. § 2255. Under that statute,
[a] prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States . . . or that the
sentence was in excess of the maximum authorized by law . . . may move the
court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). “To succeed on a § 2255 motion, a prisoner in custody must show ‘(1) an
error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the entire proceeding invalid.’”
McPhearson v. United States, 675 F.3d 553, 558–59 (6th Cir. 2012) (quoting Mallett v. United
States, 334 F.3d 491, 496–97 (6th Cir. 2003)). In § 2255 proceedings, it is the movant’s burden
to show his entitlement to relief. Potter v. United States, 887 F.3d 785, 787–88 (6th Cir. 2018).
“A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent
highly exceptional circumstances,” such as a change in the law. Dupont v. United States, 76 F.3d
108, 110–11 (6th Cir. 1996). At the same time, because a § 2255 motion is not a substitute for a
direct appeal, any claims not raised on direct review are procedurally defaulted and may not be
raised on collateral review unless the movant shows “(1) ‘cause’ excusing [the] procedural
default, and (2) ‘actual prejudice’ resulting from the errors,” United States v. Frady, 456 U.S.
152, 168 (1982) (citations omitted), or demonstrates that he is “actually innocent.” Bousley v.

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United States, 523 U.S. 614, 622 (1998) (citations omitted). 2
Ineffective assistance of trial or appellate counsel can constitute cause excusing
procedural default. See Sullivan v. United States, 587 F. App’x 935, 948 (6th Cir. 2014) (citing
Bousley, 523 U.S. at 622). Where a movant claims that a procedural default occurred due to the
ineffective assistance of counsel, “relief under § 2255 [is] available subject to the standard of
Strickland v. Washington, [466 U.S. 668 (1984)].” Grant v. United States, 72 F.3d 503, 506 (6th
Cir. 1996). Ineffective assistance of counsel, under the Strickland standard, can also serve as an
independent ground for § 2255 relief. See, e.g., Campbell v. United States, 686 F.3d 353, 357
(6th Cir. 2012). Moody’s motion addresses both aspects of ineffective assistance.
Under Strickland, to establish ineffective assistance of counsel, “[f]irst, the defendant
must show that counsel’s performance was deficient. . . . Second, the defendant must show that
the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result unreliable.” Id.
To demonstrate deficient performance by counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688. In considering an
ineffective-assistance claim, a court “must apply a ‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable professional assistance. . . . The
challenger’s burden is to show ‘that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687, 689).
To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but

2

Moody, in the present case, does not raise a claim of actual innocence.

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for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “In assessing prejudice under Strickland, the question is not
whether a court can be certain counsel’s performance had no effect on the outcome or whether it
is possible a reasonable doubt might have been established if counsel acted differently. . . . The
likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at
111–12 (citing Wong v. Belmontes, 558 U.S. 15, 27 (2009); Strickland, 466 U.S. at 693).
“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. If a reviewing court finds a lack of prejudice, it need not determine
whether, in fact, counsel’s performance was deficient. Id. “Surmounting Strickland’s high bar is
never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (citing Strickland, 466 U.S.
at 689, 693).
An ineffective-assistance claim can function as a way to escape rules of waiver and
forfeiture and to raise issues not presented at trial, so the Strickland standard must be applied
with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve. Even under de novo review, the standard
for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the record, and interacted
with the client, with opposing counsel, and with the judge. It is “all too tempting” to “secondguess counsel’s assistance after conviction or adverse sentence.” The question is whether an
attorney’s representation amounted to incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common custom. Richter, 562 U.S. at 105
(citations omitted). “Counsel [cannot] be unconstitutionally ineffective for failing to raise . . .

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meritless arguments.” Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999).
IV.

DISCUSSION
A.

Whether a Hearing Is Required

A prisoner who files a motion under § 2255 challenging a federal conviction is generally
entitled to “a prompt hearing,” at which the district court is to “determine the issues and make
findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255. The hearing is
mandatory, “unless ‘the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.’” Fontaine v. United States, 411 U.S. 213, 215 (1973) (quoting
28 U.S.C. § 2255(b)). However, to be entitled to a hearing, the movant must “set forth facts” that
show he is entitled to relief; mere “[c]onclusions, not substantiated by allegations of fact with
some probability of verity, are not sufficient to warrant a hearing.” O’Malley v. United States,
285 F.2d 733, 735 (6th Cir. 1961). Indeed, when a “petitioner’s claims are stated in the form of
conclusions without any allegations of facts in support thereof, as well as being unsupported by
proof or reference to such proof,” his motion is “legally insufficient to sustain a review.” Short v.
United States, 504 F.2d 63, 65 (6th Cir. 1974) (per curiam); see also Thomas v. United States,
849 F.3d 669, 681 (6th Cir. 2017) (“Bald assertions and conclusory allegations do not provide
sufficient ground to warrant requiring the government to respond to discovery or to require an
evidentiary hearing.”).
On the other hand, “[i]f the record includes a factual dispute, the district court must hold
a hearing to determine the truth of the [movant’s] claims.” Ross v. United States, 339 F.3d 483,
490 (6th Cir. 2003) (quotation marks and citation omitted). However, “no hearing is required if
the petitioner’s allegations cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.” Valentine v. United
States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782

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(6th Cir. 1999)).
Upon consideration of the amended Motions, the government’s Response, the movant’s
Reply, and the underlying record, the court finds that the movant has failed to set forth facts
showing that he is entitled to relief or that there are material factual disputes that warrant a
hearing. As there are no evidentiary issues to be resolved and the record “conclusively show[s]
that the prisoner is entitled to no relief,” 28 U.S.C. § 2255(b), the court will not conduct a
hearing on Moody’s motion.
B.

Resolution of the Claims

Most of Moody’s claims are procedurally defaulted, though he has tried ineffectually to
establish cause and actual prejudice to overcome the default by asserting that his trial or
appellate counsel was ineffective for failing to raise the claims at trial or on appeal. Moody
cannot establish that his counsel’s performance was constitutionally deficient, and he cannot
overcome the procedural default with respect to any of his substantive claims. As set forth
below, all of his claims are without merit.
Claims 1, 12(a), and 13(a)
Moody claims that the district court “erred in instructing the jury that, as to Counts 5, 6,
7, and 10 of the indictment, Petitioner could be convicted if ‘[t]he government . . . convince[s]
you beyond a reasonable doubt that the crimes charged happened on or before November 13,
2008.’” (Doc. No. 13, at 2 (quoting Nov. 22, 2013 Trial Tr., Crim. Doc. No. 2663, at 191)
(emphasis added by the movant).) This instruction was erroneous, because the statute of
limitations under 18 U.S.C. § 3282(a) is five years and the Eleventh Superseding Indictment was
returned on November 13, 2013, meaning that any conduct that took place before November 13,
2008 was outside the statute of limitations. Moody asserts that, because this instruction was
clearly erroneous, he was deprived of his statute of limitations defense, “in violation of 18 U.S.C.

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§ 3282 and due process and equal protection under the Fifth Amendment.” (Doc. No. 13, at 2–3.)
The court notes, as an initial matter, that this issue was waived on appeal because it was
not brought to the trial court’s attention contemporaneously, in time to correct it. See, e.g.,
United States v. Sheffey, 57 F.3d 1419, 1431 (6th Cir. 1995) (“Unless exceptional circumstances
are present, this court normally will not address issues not raised for the first time in the district
court.”). More to the point, the claim is procedurally defaulted, because it was not presented to
the Sixth Circuit on direct appeal. 3 Moody appears to try to establish cause for the default and
actual prejudice arising from it by raising claims of ineffective assistance of trial counsel (Claim
12(a)) and appellate counsel (Claim 13(a)), based on counsel’s failure to raise this issue at trial or
on direct appeal. Because the ineffective-assistance claims are not procedurally defaulted, the
court will address the issue on its merits.
The Sixth Circuit “has set a high standard for reversal of a conviction on the grounds of
improper instructions.” Sheffey, 57 F.3d at 1429. The court’s “inquiry into jury instructions is
limited to whether, taken as a whole, the instructions adequately inform the jury of the relevant
considerations and provide the jury with a sound basis in law with which to reach a conclusion.”
United States v. Wells, 211 F.3d 988, 1002 (6th Cir. 2000). “This court may reverse a judgment
on the basis of improper jury instructions only if the instructions, when viewed as a whole, were
confusing, misleading and prejudicial.” Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d
776, 787 (6th Cir. 2003) (citations omitted).
3

As the government points out, the Sixth Circuit did consider, and reject, Moody’s
argument that the trial judge improperly “allowed the jury to use pre-statute of limitations
character evidence to evaluate the defendant’s guilt without the protection of a 404(b) charge.”
United States v. Moody, No. 14-5205 (6th Cir. March 17, 2015) (Appellant’s Brief, Doc. No. 33,
at 30). Counsel did not argue on appeal that the trial judge’s misstatement constituted reversible
error. Interestingly, in fact, counsel incorrectly quoted the judge as instructing the jury that the
government must prove that the “crimes charged happened on or after November 13, 2008. Id.
(quoting Crim. Doc. No. 2663, at 131).

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In this case, it is clear that the statement that Moody could only be convicted on the basis
of conduct that took place “on or before November 13, 2008” was actually erroneous. Moody
has not established, however, that this single misstatement, when considered in the context of the
instructions as a whole, was confusing, misleading, or prejudicial. Rather, it is apparent that the
trial judge’s single reference to “on or before November 13, 2008” was a simple mistake,
abundantly overridden by more specific instructions to the jury that it could not convict based on
conduct that preceded November 13, 2008.
As the government explains, a first draft of jury instructions provided to the parties by
Judge Haynes, attached as Exhibit A to the government’s Response, contained language
informing the jury that it could only convict Moody on Counts 5, 6, 7, and 10 based on conduct
that happened “on or after November 13, 2008.” (Doc. No. 34-1, at 73.) On November 21, 2013,
after the close of proof, the parties discussed the draft instructions with the court. (Crim. Doc.
No. 2662, at 141–54.) As the transcript of that portion of the charge conference makes clear, the
parties and the court agreed that the jury should be told that it could not convict unless it found
that Moody committed the crimes on or after November 13, 2008. (Id. at 145.) The court also
agreed to provide the parties with a complete final set of the written jury instructions before they
gave their closing arguments. (Crim. Doc. No. 2663, at 12.)
The printed final jury instructions are not in the record. 4 According to the trial transcript,
that portion of the jury instructions in which the mistake appears was read by the court as
follows:
The defendant asserts that prosecution for crimes charged in Counts Five, Six,
Seven and Ten of the 11th Superseding Indictment are prohibited under the statute
4

The government’s attorney represents that he spoke to the Clerk’s Office and
ascertained that the paper case file does not contain a copy of the written jury instructions. (Doc.
No. 34, at 6 n.3.)

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of limitations for these crimes.
The statute of limitations is a law that puts a limit on how much time the
government has to obtain an indictment. No person shall be prosecuted, tried or
punished for any offense unless the indictment is found within five years next
after such offense shall have be committed. The government filed the 11th
Superseding Indictment on November 13, 2013. The government must convince
you beyond a reasonable doubt that the crimes charged happened on or before
November 13, 2008. Thus, a conviction cannot be based upon conduct that
occurred before this date.
You may consider the defendant’s conduct prior to the statute of limitations to
evaluate the defendant’s conduct within the statute of limitations and whether the
conduct within the statute of limitations establishes the defendant’s guilt beyond a
reasonable doubt. You cannot use any pre-statute of limitations conduct for any
other purpose.
(Crim. Doc. No. 2663, at 191–92 (emphasis added).) Neither party made a contemporaneous
objection to the error (“on or before November 13, 2008”), likely because neither noticed it. 5
Regardless, review of this instruction as a whole makes it clear that the jury could not have been
confused or misled by the judge’s apparent slip of the tongue. The jury was repeatedly instructed
that it could only convict based on conduct that took place within the five-year statute of
limitations, and it was also told that a conviction could only be premised on conduct that
occurred after November 13, 2008, including in the sentence following the one in which the
error appears (“Thus, a conviction cannot be based upon conduct that occurred before this
date.”).
Moreover, if the jury even noticed the judge’s error, it could have resorted to the printed
instructions for clarification. The judge informed the jury members, both before he began
reading the instructions and after he finished, that they would be provided with a written copy of
5

Counsel for the government represents that he contacted the court reporter to verify
whether the transcript was correct. The court reporter responded: “I have checked my cassette
tape of the portion of the transcript in question and listened to it several times. Judge Haynes is
reading the charge very rapidly, but the tape does reflect that he does say ‘on or before
November 13, 2008.’” (Doc. No. 34, at 6–7 n.4.)

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the instructions. (Crim. Doc. No. 2663, at 50, 197–98.) Although this court has no ability to view
the printed version from which Judge Haynes read, the available circumstantial evidence
strongly leads to the conclusion that the written version of the instruction actually provided to the
jury was correct. In addition to the fact that the draft version provided to the parties before the
charge conference (Doc. No. 34-1) is correct and that the parties discussed the matter during the
charge conference, the record reflects that Assistant U.S. Attorney Sunny Koshy read from the
final written instructions provided by the court during his closing argument. When he did, Koshy
read the statute of limitations instruction to say that the jury should acquit unless it found that
Moody committed the crime “on or after November 13, 2008.” (Crim. Doc. No. 2663, at 131.)
Moody makes no attempt to explain how he was prejudiced by a single misstatement in
the context of an otherwise clear and correct instruction. He insists only that, because “we cannot
know . . . whether the jury followed the judge’s oral instruction or whether the written instruction
taken with them into the jury room was correct, we cannot exclude the fact that the verdict
rendered was illegal or unconstitutional.” (Doc. No. 39, at 3.) The problem with this argument is
that the movant bears the burden of establishing the facts entitling him to relief. Rank speculation
that the written instruction might have been incorrect—all evidence to the contrary
notwithstanding—and that the jury might have been misled by a single error—one that the
attorneys did not even notice and which was corrected and clarified by the very next sentence—
does not constitute evidence of prejudice or confusion.
In short, even if this issue had been preserved and raised on appeal, it would not have
afforded relief, because Moody cannot establish that the jury instructions, “when viewed as a
whole, were confusing, misleading and prejudicial.” Roberts, 325 F.3d at 787. Because Claim 1
fails on its merits, Moody cannot establish that he was prejudiced by trial counsel’s failure to
notice the error or appellate counsel’s failure to raise it on appeal. His claims of ineffective

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assistance of counsel premised on those failures (Claims 12(a) and 13(a)) are also without merit.
The court will, however, issue a certificate of appealability (“COA”) on Claims 1, 12(a), and
13(a).
Claims 2, 12(b), 13(b)
In Claim 2, Moody asserts that “[t]he jury verdicts as to Counts 5, 6, 7, and 10 violated
due process of law” because the verdict form—consistently with the language of the Eleventh
Superseding Indictment—alleged that the charged conduct occurred “between in or around
January 2008 through in or around December 2008.” (Doc. No. 13, at 3–4.) That is, he argues
that trial counsel was ineffective for failing to object to the jury verdict form on the basis that it
permitted a conviction based on conduct that took place before November 13, 2008 (Claim
12(b)) (Doc. No. 13, at 10) and that appellate counsel was ineffective for failing to raise the issue
on appeal (Claim 13(b). (Doc. No. 13, at 15).
This verdict-form argument was not raised on direct appeal and is procedurally defaulted.
By raising claims of ineffective assistance of counsel based on the same issue, Moody appears to
be trying to establish cause for the default and actual prejudice resulting from it, in order to
overcome the procedural default. The court will therefore consider the issue on its merits.
Claim 2 is related to, but does not precisely overlap with, the statute of limitations
argument Moody did raise on direct appeal. In addressing that argument, the Sixth Circuit stated:
Moody also contends that the district court’s instructions “allow[ed] the
prosecutor” to urge the jury “to find [Moody] guilty of the charges in the statute
of limitation[s]” because “Moody was a drug dealer before the statute of
limitations[.]” But the district court said the opposite: “[A] conviction cannot be
based upon conduct that occurred before [the statute of limitations] date. You may
consider [Moody’s] conduct prior to the statute of limitations to evaluate [his]
conduct within the statute of limitations and whether the conduct within the
statute of limitations establishes [his] guilt beyond a reasonable doubt.” R. 2663 at
191–92. The district court further warned the jury that it “[could] not use any
prestatute of limitations conduct for any other purpose.” Id. Those instructions
were correct, and Moody’s argument is meritless.

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United States v. Moody, 631 F. App’x 392, 396 (6th Cir. 2015).
The language of the verdict form simply mirrored that of the indictment. The Sixth
Circuit held that introduction of evidence of conduct preceding the limitations period is not
erroneous so long as the jury is properly instructed that it cannot convict based on that evidence.
See id.; accord United States v. Mancuso, 718 F.3d 780, 790 (9th Cir. 2013) (“Mancuso argues
that the indictment improperly included charges beyond the applicable five-year statute of
limitations because Counts I, II, and III alleged violations spanning a period of seven and a half
[sic] years. We have held that the statute of limitations does not bar the introduction of evidence
of acts that occurred outside of the limitations period.”). Even assuming that the verdict form
erroneously made reference to a time span preceding the limitations period, “the instruction to
the jury mitigates any concerns that [the defendant] was found guilty for events occurring outside
of the statute of limitations.” Mancuso, 718 F.3d at 790.
Claim 2 is without merit. Thus, counsel was not ineffective for failing to raise this
particular argument. Claims 12(b), and 13(b), too, are meritless. The court will nonetheless grant
a COA on Claims 2, 12(b), and 13(b).
Claims 3, 12(c) and 13(c)
In Claim 3, Moody argues that the jury verdicts on Counts 5, 6, 9, and 12 violate due
process because the jury was not instructed to find, and did not find, that he had any intent to
manufacture or distribute drugs within 1000 feet of a school or public housing facility. Claim 3,
too, is procedurally defaulted. Claims 12(c) and 13(c), while not defaulted, are without merit,
because Moody cannot establish cause or actual prejudice arising from his attorney’s failure to
raise this issue at trial or on appeal.
Moody relies on Staples v. United States, 511 U.S. 600 (1994), for his mens rea

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argument, but that case, which concerned the National Firearms Act and specifically 26 U.S.C. §
5861(d), simply supports the general proposition that “some indication of congressional intent,
express or implied, is required to dispense with mens rea.” Staples, 511 U.S. at 605. Prior to
Staples, the Sixth Circuit had held that a conviction under 21 U.S.C. § 860 does not require proof
of actual intent to manufacture or sell controlled substances within 1000 feet of a school or
public housing facility. See United States v. Lloyd, 10 F.3d 1197, 1218 (6th Cir. 1993) (“Under
21 U.S.C. § 860 . . . , a district court may double the penalty for anyone found to have distributed
cocaine in violation of section 841(a), where that person sold the cocaine within 1,000 feet of a
school. This court has interpreted this statute as not incorporating any mens rea requirement;
thus, the jury did not need to find an intent on Little’s part to deliver drugs within 1000 feet of
the school.” (citing United States v. Cross, 900 F.2d 66, 68–69 (6th Cir. 1990)).
Even following Staples, numerous courts have concluded that § 860 does not require
proof of a defendant’s intent to manufacture or deliver drugs within 1000 feet of a school or
public housing facility. See, e.g., United States v. Jackson, 443 F.3d 239, 299 (3d Cir. 2006)
(“[T]he mens rea element for § 860(a) is found in the required underlying violation of §
841(a)(1), which calls for a knowing possession of narcotics with intent to distribute.”); United
States v. Harris, 313 F.3d 1228, 1240 (10th Cir. 2002) (“[W]e hold that to obtain a conviction
under § 860(a) for possession with intent to distribute, the government need only prove that the
defendant possessed illegal drugs within 1,000 feet of a school and intended to distribute them
somewhere.”). As one court has explained:
[W]hen asked to infer mens rea requirements in other criminal statutes, neither
this Court nor our sister circuits have relied solely on whether a particular
provision is an element of the offense or a sentencing factor. Instead, this Court
and others have frequently found that certain offense elements do not require
proof of an additional mens rea, so long as the offense as a whole carries a
scienter requirement that separates innocent from criminal conduct. . . . For
example, the Drug Free School Zones Act, 21 U.S.C. § 860, provides heightened

17

penalties for drug distribution within 1,000 feet of a school. In a prosecution
under that statute, however, the government need not prove the defendant’s
knowledge of his proximity to a school.
United States v. Burwell, 690 F.3d 500, 508 (D.C. Cir. 2012).
Claim 3 is without merit. Because counsel was not objectively unreasonable for failing to
raise a meritless argument either at trial or on appeal, Claims 12(c) and 13(c) are equally
meritless.
Claims 4, 12(d), and 13(d)
Moody’s sentence on Counts 5, 6, 9, and 12 was enhanced to life imprisonment based on
the court’s finding that Moody had prior convictions for felony drug offenses. In Claim 4,
Moody argues that the enhancement of his sentence on these counts violated his rights under the
Fifth, Sixth, and Eighth Amendments, because those prior convictions were not alleged in the
indictment and proved to the jury beyond a reasonable doubt. This claim was procedurally
defaulted, but Moody appears to seek to overcome the default by alleging that counsel was
ineffective for failing to articulate this objection at trial and on appeal.
As Moody himself recognizes, the Supreme Court decided twenty years ago that prior
convictions that enhance a defendant’s sentence are not elements of a crime that must be
submitted to a jury. Almendarez-Torres v. United States, 523 U.S. 224, 241–42 (1998). Although
the force of that decision has been eroded over time, the Sixth Circuit has repeatedly, and
recently, held that Almendarez-Torres “is still good law and will remain so until the Supreme
Court explicitly overrules it.” United States v. Farrad, 895 F.3d 859, 888 (6th Cir. 2018)
(quoting United States v. Nagy, 760 F.3d 485, 488 (6th Cir. 2014) ; see also United States v.
Pritchett, 749 F.3d 417, 434 (6th Cir. 2014); United States v. Mack, 729 F.3d 594, 609 (6th Cir.
2013).

18

Moody understandably makes this argument in order to preserve it for Supreme Court
review (see Doc. No. 39, at 3), but this court is not empowered to grant him relief on Claim 4.
Likewise, Moody cannot establish that counsel was ineffective for failing to raise an argument
already foreclosed by the Supreme Court or that he was prejudiced by that purported failure;
Moody is not entitled to relief on Claims 12(d) or 13(d) either. The court will, however, grant a
certificate of COA on Claims 4, 12(d), and 13(d).
Claims 5, 12(e), and 13(h)
In Claim 5, Moody argues that his sentence under 21 U.S.C. § 860 for Counts 5, 6, 9, and
12 was incorrectly enhanced to life imprisonment based on a misreading of § 860. He asserts that
his sentence was enhanced based on prior felony drug convictions in state court, but that §
860(b) only permits enhancement based upon “prior convictions under § 860 itself,” which
allows enhancement only once “a ‘prior conviction under subsection (a) [§ 860(a)] has become
final.’” (Doc. No. 13, at 6 (quoting 21 U.S.C. § 860(b)).) This claim is procedurally defaulted,
but Moody also claims that his attorney was ineffective at trial and on appeal for not raising this
issue (Claims 12(e), 13(d)), apparently with the hope of overcoming the procedural default.
This argument is foreclosed both by controlling precedent and a straightforward reading
of the statutory text. Section 860(a) establishes the penalty for engaging in drug trafficking in
violation of 21 U.S.C. § 841(a)(1) within 1000 feet of certain institutions, including schools and
public housing facilities. Generally, § 860(a) doubles both the maximum prison sentence and
supervised release term provided for in 21 U.S.C. § 841(b) for such convictions.
Under § 860(b), “[a]ny person who violates section 841(a)(1)” by distributing or
manufacturing a controlled substance within 1000 feet of certain institutions, including schools
and public housing facilities, after a prior conviction under § 860(a) is subject to penalties of
three times the prison sentence (but no less than three years or more than life), three times the

19

term of supervised release, and three times the fine imposed by § 841(b) for a first offense. 21
U.S.C. § 860(b). This appears to be the provision upon which the movant’s claims rely. Section
860(b) also expressly provides, however, that “[p]enalties for third and subsequent convictions
shall be governed by section 841(b)(1)(A) of this title.”
Section 841(b)(1)(A) states, in pertinent part: “If any person commits a violation of [§
860] after two or more prior convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life imprisonment without release.” The term
“felony drug offense” is defined in 21 U.S.C. § 802(44) as “an offense that is punishable by
imprisonment for more than one year under any law of the United States or of a State or foreign
country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic
steroids, or depressant or stimulant substances.” The Supreme Court has held that the definition
of “felony drug offense” in § 802(44) is the controlling definition for purposes of § 841(b)(1)(A).
Burgess v. United States, 553 U.S. 124, 127 (2008). While the Burgess Court decided this issue
in reference to the twenty-year mandatory-minimum provision, the Sixth Circuit, citing Burgess,
has also applied it in the context of applying the mandatory life sentence. See United States v.
Graham, 622 F.3d 445, 456 (6th Cir. 2010) (“[Section] 841(b)(1)(A) uses the same language in
both the twenty-year and the life-term mandatory-minimum provisions.”).
In other words, the enhancement of Moody’s sentence under § 860 was not premised on
an erroneous reading of the statute. Claim 5 is without merit, and his counsel was not objectively
unreasonable in failing to raise a meritless claim.
Claims 6, 12(f), and 13(e)
Moody asserts that his life sentence for the convictions on Counts 5, 6, 9, and 12 is
disproportionate to the crimes of conviction and, as such, constitutes cruel and unusual
punishment in violation of the Fifth and Eighth Amendments. He also claims that the fact that

20

such a sentence is rare (imposed in only .3% of drug cases) and “imposed disparately based upon
Petitioner’s race,” 6 “not narrowly tailored to serve any compelling government interest,” and
unjustified by any penological theory further establish that the punishment is cruel and unusual.
He characterizes the sentence as “based upon prior minor felony drug offenses which were then
used to ratchet [his] current offenses to a life sentence without parole.” (Doc. No. 13, at 6.) This
claim, too, is procedurally defaulted, but the movant appears to be attempting to establish cause
for the default and actual prejudice by likewise claiming that his attorney was constitutionally
ineffective insofar as he failed to raise this issue at sentencing or on direct appeal. (Claims 12(f),
13(e).)
Moody cites Solem v. Helm, 463 U.S. 277 (1983), and Graham v. Florida, 560 U.S. 48
(2010), in support of these claims, but he makes no effort to show that his case is comparable to
either of those. The Solem Court held that the Eighth Amendment bars, not only barbaric
punishments, but also sentences that are disproportionate to the crime of conviction. 463 U.S. at
284. The Supreme Court identified factors that sentencing courts should weigh in evaluating the
proportionality of a particular sentence, including (1) the gravity of the offense and the harshness
of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction, that is,
whether more serious crimes are subject to the same or to less serious penalties; and (3) the
sentences imposed in different jurisdictions for the same crime. Id. at 290–92. Based on these
principles, the Court held that a life sentence without the possibility of parole was
unconstitutionally disproportionate where the crime of conviction—uttering a no-account check
for $100—was minor and non-violent; the defendant’s prior felony convictions were relatively

6

Moody does not include any facts to support his assertion in Claim 6 that the sentence
was “imposed disparately” based on his race other than to cross-reference Claim 7, discussed
below.

21

minor; he received the most severe sentence the State of South Dakota could impose on any
criminal; and only one other state, Nevada, authorized a life sentence without parole under
similar circumstances. Id. at 296–300. In Graham, applying a similar analysis, the Court held
that the Eighth Amendment categorically prohibits the imposition of a sentence of life without
parole on a juvenile defendant who did not commit homicide. 560 U.S. at 82. Neither case is
comparable to Moody’s.
While the movant has not provided the court with any compelling precedent suggesting
that his sentence is disproportionate to the crimes in light of the factors identified in Solem,
numerous opinions have upheld the constitutionality of a life sentence based on less serious
crimes and more mitigating factors than are present here. In Harmelin v. Michigan, 501 U.S.
957, 994 (1991), the Supreme Court held that the imposition of a mandatory sentence of life
without the possibility of parole based on a conviction for simple possession of more than 650
grams of cocaine was not cruel and unusual, despite the fact that the defendant had no prior
felony convictions. There, a plurality rejected the argument that the Eighth Amendment required
strict proportionality between crime and sentence and instead concluded that the Eighth
Amendment only prohibited “extreme sentences that are ‘grossly disproportionate’ to the crime.”
Id. at 1001.
Applying Harmelin, the Sixth Circuit has held that a life-without-parole sentence for a
defendant who had two prior felony drug convictions and was convicted of conspiring to
distribute 177.9 grams of cocaine base “was not so ‘grossly disproportionate’ to his crime as to
violate the Eighth Amendment.” United States v. Hill, 30 F.3d 48, 50 (6th Cir. 1994). Likewise,
in United States v. Flowal, 163 F.3d 956, 964 (6th Cir. 1998), the court upheld a sentence of life
without parole for a defendant with two prior drug convictions who was found to have
distributed at least 5,000 grams of cocaine. The court rejected the argument that the sentence

22

violated the Eighth Amendment, noting that “the circumstances underlying this defendant’s
conviction are more egregious than those that justified the life sentence imposed in Harmelin and
are very similar to those in Hill.”
Moody had four prior felony convictions for drug-related offenses. (Information, Crim.
Doc. No. 2488.) He was responsible for over 7,000 grams of cocaine. (PSR, Crim. Doc. No.
2574 ¶ 43.) His claim that his sentence is grossly disproportionate to the crimes of conviction is
without merit. Counsel was not ineffective for failing to raise a meritless claim.
Claims 7, 12(g), and 13(f)
Claim 7 posits that Moody’s life sentence was imposed in violation of his right to equal
protection, because it was “based upon the government’s use of 21 U.S.C. § 851, which is used
disproportionately and unfairly and in the government’s unlimited discretion to target Petitioner,
an African-American[], for a life sentence.” (Doc. No. 13, at 7.) In an attempt to overcome the
procedural default of this claim, Moody also raises ineffective-assistance claims based on
counsel’s failure to raise this issue at sentencing or on appeal.
In support of this claim, Moody incorporates by reference statistics cited in a motion to
dismiss for selective and vindictive prosecution filed in United States v. Montgomery, No. 3:15cr-00184 (M.D. Tenn. June 17, 2016) (Doc. Nos. 119, 119-2). He claims that those figures show
that the U.S. Attorney’s Office in this district has a pattern and practice of disproportionately
targeting African Americans for enhancements under § 851. He requests further discovery and an
evidentiary hearing to establish his allegations.
Moody fails to point out that the district court in Montgomery rejected the selectiveprosecution argument and the Sixth Circuit affirmed, stating:
A selective-prosecution claim asks a court to exercise judicial power over a
special province of the Executive. Because federal law enforcement retain[s]
broad discretion to enforce the Nation’s criminal laws, a presumption of regularity

23

supports their prosecutorial decisions and, in the absence of clear evidence to the
contrary, courts presume that they have properly discharged their duties. And so
long as the prosecutor has probable cause to believe that the accused committed
an offense defined by statute, the decision whether or not to prosecute . . .
generally rests entirely in his discretion.
The Constitution, however, imposes outer bounds on that discretion. One of these
constraints, imposed by the equal protection component of the Due Process
Clause of the Fifth Amendment, is that the decision whether to prosecute may not
be based on an unjustifiable standard such as race, religion, or other arbitrary
classification. A defendant alleging that sort of selective prosecution must
demonstrate that the administration of a criminal law is directed so exclusively
against a particular class of persons . . . with a mind so unequal and oppressive
that the system of prosecution amounts to a practical denial of equal protection of
the law. And he must do so by proffering clear evidence that the prosecutor’s
policy had both a discriminatory purpose and effect. As for the purpose
requirement, a defendant must prove that the decisionmakers in his case acted
with discriminatory purpose. To satisfy the effect element, a defendant must show
that similarly situated individuals of a different race were not prosecuted.
United States v. Merriweather, 728 F. App’x 498, 507–08 (6th Cir. 2018), cert. denied, 139 S.
Ct. 192 (2018) (internal citations and quotation marks omitted).
In Merriweather, the Sixth Circuit further noted that courts should hesitate even to grant
discovery to develop a selective-prosecution claim “without first assessing the case’s strength,”
because such discovery risks “divert[ing] prosecutors’ resources [or] disclosing the
Government’s prosecutorial strategy.” Id. at 508 (quoting United States v. Armstrong, 517 U.S.
456, 464 (1996)). Thus, a defendant “pressing such a claim must make a ‘credible showing’ of
both discriminatory effect and discriminatory intent” before the court grants discovery. Id. The
court considered the evidence offered by the defendant there in support of his claim and
concluded that the district court did not err in finding that he had failed to make the requisite
“credible showing” of discriminatory effect or intent. Id. at 509.
Moody here has offered no evidence beyond the statistics rejected in the case for which
they were compiled. Moody does not even attempt to argue that the decision makers in his case
acted with discriminatory intent or that similarly situated individuals of a different race were not

24

targeted for § 851 enhancements. He has not established a prima facie case of disproportionate
sentencing and has not provided any basis for being permitted discovery. This claim is utterly
unsupported, and Moody cannot establish that counsel was ineffective for failing to raise this
issue at trial or on appeal or that he was prejudiced by any such failure.
Claims 8, 12(h), and 13(g)
Next, Moody argues that the trial court erred in instructing the jury that he could be
convicted of possessing controlled substances or a firearm based on “constructive” rather than
actual possession and that, as a result, his conviction is in violation of 21 U.S.C. § 841 and his
right to due process. Again, the claim is procedurally defaulted, but the movant also raises
ineffective-assistance claims based on counsel’s failure to raise this claim at trial or on appeal.
(Claims 12(h) and 13(g).)
Judge Haynes indeed instructed the jury that “[t]he term possession includes both actual
and constructive possession” and that “constructive possession” meant “that the defendant had
the right to exercise physical control over the item, and knew that he had this right, and that he
intended to exercise physical control over the item at some time, either directly or through other
persons.” (Crim. Doc. No. 2663, at 172–74.)
Counsel for the movant did not object to this instruction at trial or on appeal, but his
decision not to do so is explained by the fact that the Sixth Circuit has long held that
“‘[p]ossession may be either actual or constructive and it need not be exclusive but may be
joint.’” United States v. Johnson, 726 F. App’x 393, 405 (6th Cir. 2018) (quoting United States
v. Paige, 470 F.3d 603, 610 (6th Cir. 2006) (quoting United States v. Covert, 117 F.3d 940, 948
(6th Cir. 1997))). Moody cites a Supreme Court case in support of the proposition that a word
used in a drug statute “must be given its ordinary or natural meaning.” Bailey v. United States,
516 U.S. 127, 145 (1995). Johnson does not conflict with that principle, however.

25

An accurate instruction to the jury that possession can be either actual or constructive did
not violate Moody’s right to due process. Moody’s substantive claim is meritless, and counsel
was not constitutionally ineffective for failing to raise it, either at trial or on direct appeal.
Claims 9, 12(i), and 13(i)
Moody asserts that his convictions on Counts 5 and 12 are invalid and unconstitutional,
because, although he was indicted for using a location to manufacture and distribute a controlled
substance, the jury was never instructed on the definition of “controlled substance” or instructed
to find the existence of a controlled substance beyond a reasonable doubt. (Doc. No. 13, at 8–9.)
This claim is procedurally defaulted, but his claims that counsel was ineffective for not raising
this issue at trial or on appeal are not procedurally defaulted.
Counts 5 and 12 of the Eleventh Superseding Indictment charged Moody with knowingly
using “a place generally known as 1307 10th Avenue North, Nashville, Tennessee,” located
“within 1000 feet of real property comprising a public elementary school,” “for the purpose of
manufacturing and distributing a controlled substance” and with actually distributing, possessing
with intent to distribute, and manufacturing controlled substances “at said location,” in violation
of 21 U.S.C. §§ 841(a)(1), 856, and 860. (Crim. Doc. No. 2468, at 3, 6.) The Eleventh
Superseding Indictment, which the court read to the jury, also included language clearly
identifying cocaine and “cocaine base (crack cocaine)” as Schedule II controlled substances for
purposes of 21 U.S.C. § 841(a)(1). (See, e.g., Crim. Doc. No. 2663, at 165, 166.) In addition, the
jury was expressly instructed that crack cocaine is a Schedule II controlled substance. (Id. at
174–75.)
Specifically regarding Counts 5 and 12, the jury was instructed that, to find the defendant
guilty of violating 21 U.S.C. § 860 as charged in those counts, it must first find that the
government had proved beyond a reasonable doubt that the defendant had committed a violation

26

of 21 U.S.C. § 841(a)(1) or § 856 and that he did so within 1,000 feet of a public elementary
school. (Id. at 172.) The court had previously defined the elements of §§ 841(a)(1) and 856,
instructing the jury that,
[f]or the defendant to be found guilty under Section 841 (a)(1) and/or 21 U.S.C.
Section 856, the government must prove beyond a reasonable doubt that the
defendant knowingly or intentionally possessed a controlled substance and that
the defendant intended to manufacture or distribute that controlled substance, (2)
that the defendant knowingly or intentionally distributed the controlled substance,
and that the defendant knew at the time of the distribution that the substance was
a controlled substance, or (3) that the defendant manufactured a controlled
substance and that the defendant did so knowingly or intentionally.
(Crim. Doc. No. 2663, at 170–71.)
In other words, the jury was clearly and correctly instructed on every element of § 860
and informed that it must find every element of the crime, including the elements of § 841 or
856, beyond a reasonable doubt. While there was no specific supplemental instruction defining
the term “controlled substance,” the jury was informed repeatedly that cocaine and crack cocaine
are Schedule II controlled substances, and the evidence presented at trial only concerned the
defendant’s manufacture and distribution of those two controlled substances. Even assuming for
the sake of argument that the court erred in failing to specifically define the term, Moody has not
shown that he was prejudiced by that failure, that there was any possibility that the jury was
confused as to the meaning of the term, or, consequently, that counsel was ineffective for failing
to insist on a more precise definition of the term.
The movant is not entitled to relief on Claims 9, 12(i), or 13(i).
Claims 10 and 13(j)
In Claim 10, which contains four subparts, Moody contends that his sentence
enhancement as a career offender under §§ 4B1.1 and 4B1.2 of the U.S. Sentencing Guidelines
and as an armed career criminal under the Armed Career Criminal Act is unconstitutional,

27

because it contravenes the Supreme Court’s pronouncement in Johnson v. United States, 135 S.
Ct. 2551 (2015). This claim is procedurally defaulted, but his claim that appellate counsel was
ineffective for failing to raise the “Johnson v. United States and Welch v. United States issue on
direct appeal” (Claim 13(j), Doc. No. 13, at 19) is not.
The movant offers no argument or explanation for his Johnson (or Welch) claims. He
simply states, in full, as follows:
Petitioner’s convictions violate Johnson v. United States . . . where, inter alia:
a. Under Johnson, Petitioner’s prior convictions do no[t] qualify under the
force clause and the residual clause was ruled unconstitutionally vague in
Johnson.
b. Under Johnson, § 924(c) is void for vagueness.
c. Under Johnson, conspiracy under 21 U.S.C. § 846 cannot form the basis for
an enhancement under § 924(c).
d. Under Johnson, guideline enhancement under 4B1.1, 4B1.2, Career
Offender and Armed Career Criminal Act are void for vagueness.
(Doc. No. 13, at 9.)
The movant fails to elaborate upon these objections, but the court understands him to be
arguing that: (a) his convictions under 18 U.S.C. §§ 922(g)(1) and 924(e) on Counts 10 and 11,
for being a previously convicted felon in possession of a firearm and ammunition, violate
Johnson, because his prior convictions do not qualify as “violent felonies” under §
924(e)(2)(B)(ii), and Johnson established that § 924(e)(2)(B)(i) is void for vagueness; (b) his
conviction on Count 7 under 18 U.S.C. § 924(c) for possession of a firearm in furtherance of a
drug trafficking crime is invalid, because § 924(c) is void for vagueness, under Johnson; (c) his
conviction on Count 7 is invalid insofar as it is premised upon attempt or conspiracy to commit
any drug-related offense, 21 U.S.C. § 846; and (d) his sentencing as a career offender under §
4B1.1 of the U.S. Sentencing Guidelines violates Johnson. These claims are substantively

28

without merit, and the movant fails to articulate any prejudice arising from counsel’s failure to
raise a Johnson or Welch claim.
First, Section 922(g)(1) makes it unlawful for a previously convicted felon to possess any
firearm or ammunition that has been transported in interstate commerce. Section 924(e)
mandates a minimum sentence of fifteen years for any person convicted under § 922(g)(1) who
has “three previous convictions . . . for a violent felony or a serious drug offense.” Section
924(e)(2)(A) defines the term “serious drug offense,” and § 924(e)(2)(B) defines “violent
felony.” According to the Presentence Report, at the time he committed the crimes at issue in this
case, Moody had at least two prior state court felony drug convictions that qualify as serious
drug offenses under § 924(e)(2)(A) and at least one conviction for a violent felony in the form of
attempted aggravated robbery. (Presentence Report, Crim. Doc. No. 2574 ¶ 60.) Moody does
even attempt to argue that the drug offenses do not qualify as “serious” for purposes of §
924(e)(2)(A), and the Sixth Circuit has held that attempted aggravated robbery under Tennessee
law is a qualifying violent felony. See, e.g., United States v. Lester, 719 F. App’x 455, 458-59
(6th Cir. 2017) (affirming application of the ACCA based on a prior conviction for attempted
aggravated robbery under Tennessee law).
Second, Count 7 charged Moody under “Title 18, United States Code, Section 924(c)”
with possession of a firearm in furtherance of a drug-trafficking crime, specifically with
unlawfully manufacturing and possessing a controlled substance with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). (Crim. Doc. No. 2468, at 4.) Although the relevant subsection
of 924(c) is not spelled out in the indictment, the reference to “in furtherance of a drug
trafficking crime” makes it clear that § 924(c) was not applied based on possession of a firearm

29

during the commission of a “crime of violence” as defined in § 924(c)(3). 7 Moody was found
guilty on Counts 5 and 6 of violating § 841(a)(1), which clearly falls within § 924(c)(2)’s
definition of a “drug trafficking crime,” which encompasses “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.).” Neither Johnson nor any Sixth Circuit
opinion of which this court is aware has held that § 924(c)(2) is void for vagueness.
Third, because his conviction on Count 7 was clearly premised upon violations of §
841(a)(1) and not § 846, the court is at a loss to understand Claim 10(c). Regardless, even if
Count 7 were based on an underlying violation of § 846, a conspiracy under that provision would
also qualify as a § 924(c)(2) predicate, because it too is a “felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.)” and, therefore, a drug-trafficking crime. 21
U.S.C. § 924(c)(2).
Finally, regarding Claim 10(d), Moody’s challenge to his classification as a career
offender under §§ 4B1.1 and 4B1.2 of the U.S. Sentencing Guidelines is completely foreclosed
by the Supreme Court’s pronouncement that “the Guidelines are not subject to a vagueness
challenge under the Due Process Clause” and that “[t]he residual clause in § 4B1.2(a)(2)
therefore is not void for vagueness.” Beckles v. United States, 137 S. Ct. 886, 892 (2017).
All of Moody’s Johnson claims are devoid of merit, and counsel was not ineffective for
failing to raise them.

7

The language in § 924(c)(3)(B) is virtually identical to that of 18 U.S.C. § 16(b), which
the Supreme Court held in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), to be void for vagueness.
The Sixth Circuit, however, had previously held that § 924(c)’s “residual clause” “is
considerably narrower than the statute invalidated by the Court in Johnson” and is not
unconstitutionally vague. United States v. Taylor, 814 F.3d 340, 375 (6th Cir. 2016). Following
Dimaya, the Sixth Circuit has recognized that, while Taylor “stands on uncertain ground,” it
remains binding in this circuit. United States v. Richardson, 906 F.3d 417, 425 (6th Cir. Oct. 11,
2018).

30

Claims 11, 12(m), and 13(k)
Moody claims that his convictions violate the Fifth Amendment (Claim 11), that trial
counsel was ineffective for failing to raise a challenge under Batson v. Kentucky, 476 U.S. 79
(1986), to the striking of minority jurors (Claim 12(m)), and that appellate counsel was
ineffective for failing to order a transcript of the jury voir dire (Claim 13(k)). The substantive
claim is procedurally defaulted, and Moody has not shown that counsel was constitutionally
ineffective, for purposes of supplying the requisite cause and actual prejudice to overcome the
default.
As set forth above, it is the petitioner’s burden to show his entitlement to relief. Potter v.
United States, 887 F.3d 785, 787–88 (6th Cir. 2018). When a movant’s claims are “stated in the
form of conclusions without any allegations of facts in support thereof, as well as being
unsupported by proof or reference to such proof,” the motion is “legally insufficient to sustain a
review.” Short v. United States, 504 F.2d 63, 65 (6th Cir. 1974) (per curiam); see also Thomas v.
United States, 849 F.3d 669, 681 (6th Cir. 2017) (“Bald assertions and conclusory allegations do
not provide sufficient ground to warrant requiring the government to respond to discovery or to
require an evidentiary hearing.”).
Here, the only “fact” asserted in support of the Batson claims is that two potential jurors
who happened to be African American were removed. (Doc. No. 13, at 9.) That fact, standing
alone, does not establish a Batson violation. Moody asserts that their removal was “in part or in
substantial part because of race” (id.), but he does not offer any factual support for that
conclusory assertion. 8 His complaint that counsel failed to secure a transcript of the jury voir dire
for purposes of appeal does not come to his aid, because he offers no suggestion of what facts
8

The record contains no information about the racial make-up of the jury venire panel or
of the jury as empaneled.

31

supporting his claims the transcript might have revealed. Mere speculation is not sufficient to
substantiate his claims.
Moody has not shown that he is entitled to relief on the basis of Batson or any
ineffective-assistance claim related to Batson.
Claims 12(j), (k), (l), (n), and (o)
Moody asserts five additional subclaims of ineffective assistance of trial counsel that do
not appear to overlap with his substantive claims: (1) counsel failed to articulate a claim based on
a Fourth Amendment violation in connection with the introduction into evidence of a videotape
(Claim 12(j)); (2) counsel failed to challenge Moody’s prior convictions for purposes of the §
922(g) conviction (Claim 12(k)); (3) counsel failed to challenge an alleged Apprendi violation
based on the amount of drugs at issue (Claim 12(l)); (4) counsel failed to object to the use of
Moody’s prior convictions to enhance his sentences in this case or to argue that Moody’s lawyer
during his state criminal proceedings was ineffective for failing to inform him at the time of his
state court convictions that those convictions could be used to enhance his sentences on later
crimes (Claim 12(n)); and (5) counsel failed to object at trial to the use of state court convictions
at sentencing on the basis that 21 U.S.C. § 851(e) is unconstitutional (Claim 12(o)). These claims
are not procedurally defaulted, but they are devoid of merit.
First, Moody offers no indication of what possible argument counsel could have raised in
favor of suppression of the videotape, much less that he was prejudiced by failure to raise that
argument. Claim 12(j) is without merit.
Second, he offers no basis for collaterally attacking his state court convictions or showing
that any of them should not have been counted for purposes of establishing his status as an armed
career criminal under the ACCA or a career offender under the Sentencing Guidelines. Cf. Custis
v. United States, 511 U.S. 485, 491–97 (1994) (holding that a defendant may not collaterally

32

attack the prior state convictions used to enhance his sentence under the ACCA, except on the
grounds that the convictions were obtained in violation of the right to counsel). Claim 12(k) is
without merit.
Third, with respect to Claim 12(l), Moody asserts:
Trial counsel failed to challenge the Apprendi violation for not charging a
statutory offense such as § 841(b)(1)(A) or (b)(1)(B) for certain enumerated drug
type and quantity in the indictment. The indictment charged a violation of §
841(a)(1) which applies to all other violations involving Schedule I or II
controlled substances and carries a penalty under § 841(b)(1)(C).
(Doc. No. 13, at 14.) Moody did not provide any further argument to support this claim, but the
court understands him to be asserting that his sentence is unconstitutional and contravenes
Apprendi v. New Jersey, 530 U.S. 466 (2000), because it was increased on the basis of a quantity
of drugs not found by the jury beyond a reasonable doubt. However, Moody has failed to show
that his statutory sentencing range for any of the crimes of conviction was actually increased
based on judicial factfinding as to the quantity of drugs involved.
In Apprendi, the Supreme Court held that, “[o]ther than a fact of prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added).
More recently, in Alleyne v. United States, 570 U.S. 99 (2013), the Court held that any fact that
increases the mandatory minimum sentence for a crime is an “element” of the crime that must be
submitted to the jury for finding beyond a reasonable doubt. Neither of these holdings came into
play in Moody’s sentencing.
His life sentence on Counts 5, 6, 9, and 12 was premised entirely on 21 U.S.C. § 860(b),
which, as discussed above, cross-references § 841(b)(1)(A). Section 841(b)(1)(A) provides that
any person who commits a violation of 21 U.S.C. § 860—that is, by manufacturing drugs within
1000 feet of a school or public housing facility, among other places—“after two or more prior

33

convictions for a felony drug offense have become final . . . shall be sentenced to a mandatory
term of life imprisonment without release.” Again, the Supreme Court has never held that the
fact of a prior conviction is an element of a crime that must be proved beyond a reasonable
doubt. United States v. Farrad, 895 F.3d 859, 888 (6th Cir. 2018). And the quantity of drugs at
issue was irrelevant to the life sentence imposed on Counts 5, 6, 9, and 12.
The only other count indicted under 21 U.S.C. § 841 is Count 8, charging conspiracy to
possess cocaine and crack cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a),
846, and 2. The PSR states that the sentence on this count was subject to enhancement under 21
U.S.C. §§ 841(b)(1)(C) and 851. (Crim. Doc. No. 2574, at 2.) Section 851 prescribes the
procedure for the filing of an “information . . . stating in writing the previous convictions” the
government intends to rely upon for purposes of sentence enhancement. 21 U.S.C. § 851(a)(1).
Section 841(b)(1)(C) provides in relevant part that, if any person is found guilty of a drug-related
offense involving a Schedule I or Schedule II controlled substance (which includes cocaine and
crack cocaine) “after a prior conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment of not more than 30 years.” Moody was sentenced
on Count 8 to the statutory maximum of 30 years (360 months) based on a judicial finding of
prior drug offenses under § 851. Regardless of whether Judge Haynes took drug quantity into
consideration in setting the sentence for Count 8, 9 the sentence did not exceed the statutory
maximum. Consequently, it did not contravene Apprendi. Claim 12(l) is without merit.
9

The indictment does not identify a specific quantity of cocaine involved in the
conspiracy (Crim. Doc. No. 2468, at 4), but the PSR states that “[t]he total amount [of] drugs for
which Moody is being held accountable in relation to Count[] 8 . . . is 8.2 grams of powder
cocaine and 27.2 grams of crack cocaine (Crim. Doc. No. 2574, at 15). The transcript of the
sentencing hearing is not in the record, and neither the Judgment nor the Sealed Statement of
Reasons references drug quantity. (Crim. Doc. Nos. 2563, 2564.) Only the PSR’s reference to
drug quantity suggests that the sentencing judge might have taken quantity into consideration in
setting the sentence on Count 8.

34

Fourth, Claim 12(n) amounts to a claim that the attorneys representing Moody in state
court at the time of his prior convictions were ineffective for failing to notify him at that time
that his state convictions could later be used to enhance his sentence on federal convictions. (See
Doc. No. 13, at 14 (“[T]hus Petitioner was deprived of due process under the Fifth and
Fourteenth Amendments and denied the effective assistance of counsel at his state court
pleas.”).) He offers no legal authority or argument in support of his claim that his counsel’s
failure to raise such an objection in his criminal proceedings in this court was an error or that he
was in any way prejudiced by that failure. Claim 12(n) is without merit.
Claim 12(o) somewhat overlaps with Claim 12(n). Moody argues generally that counsel
was ineffective for failing to “raise all potential objections” to the consideration of his state court
convictions at sentencing, including that 21 U.S.C. § 851(e) is unconstitutional. Moody’s
argument that § 851(e) is unconstitutional is foreclosed by the Sixth Circuit’s holding in United
States v. Reed, 141 F.3d 644, 652 (6th Cir. 1998) (finding “no . . . compelling reason to hold that
[§ 851(e)] is unconstitutional” and noting, “[i]n fact, [that] the Supreme Court has made it clear
that Congress could choose to eliminate all collateral attacks on prior convictions with regard to
sentence enhancement, save for the limited circumstance in which the prior conviction was
obtained in violation of the right to have counsel appointed” (citing Custis, 511 U.S. at 491–97)).
Moody does not suggest what other objections counsel should have raised or presented any
evidence showing that, in the absence of § 851(e), he could have brought a meritorious collateral
attack on any of his prior state court convictions.
In sum, all of Moody’s ineffective-assistance claims—including both the stand-alone
claims and those related to his substantive claims—fail to satisfy either prong of the Strickland
analysis.

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Claim 14
Last, Moody claims that the cumulative effect of all errors at trial deprived him of a fair
trial. (Doc. No. 13, at 29.) It is well established that, even if individual errors in and of
themselves do not constitute reversible error, a defendant may “show that the combined effect of
individually harmless errors was so prejudicial as to render his trial fundamentally unfair.”
United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004). Here, however, Moody has not
shown the existence of any constitutional errors at trial. “His cumulative-error claim therefore
fails because there are simply no errors to cumulate.” Getsy v. Mitchell, 495 F.3d 295, 317 (6th
Cir. 2007).
VI.

CONCLUSION
As set forth herein, the Amended Motion to Vacate will be denied without a hearing. An

appropriate Order is filed herewith.
ENTER this 13th day of December 2018.

____________________________________
ALETA A. TRAUGER
United States District Judge