United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
MAURICE HICKS, JR. UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Carlos B. Moore's
(“Moore”) Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 (Record Document 628).
Moore seeks to have his sentence corrected on the grounds of
ineffective assistance of counsel and that increasing his
sentence for his prior convictions violated the Fifth and
Sixth Amendments of the United States Constitution. For the
reasons discussed herein, Moore's Motion is DENIED.
AND PROCEDURAL BACKGROUND
October 28, 2009, a federal grand jury filed charges against
Moore and twelve co-defendants in a nine-count indictment.
See Record Document 1. The indictment alleged that
the defendants had engaged in a conspiracy to possess and
distribute more than 50 grams of cocaine base, or crack
cocaine, in the Western District of Louisiana. See
January 28, 2010, Moore pleaded guilty to Count Two of the
indictment. See Record Documents 164 and 165. On
June 14, 2010, the Court sentenced him to 292 months'
imprisonment and ten years of supervised release.
See Record Documents 250 and 251. Moore appealed his
sentence. See Record Document 257. On December 15,
2011, while his appeal was pending, he filed a Motion for
Retroactive Application of Sentencing Guidelines for Crack
Cocaine Offenses. See Record Document 446. On June
26, 2012, the Court granted his Motion for Retroactive
Application and reduced his sentence to 262 months'
imprisonment. See Record Document 480. On March 19,
2013, the Fifth Circuit Court of Appeals affirmed his
sentence. See Record Document 561. On November 7,
2013, Moore filed the instant § 2255 Motion.
See Record Document 628.
Motions to Vacate, Set Aside, or Correct a Sentence Under 28
U.S.C. § 2255
federal habeas corpus remedy is contained in 28 U.S.C. §
2255, which provides that a prisoner serving a federal
sentence may make a motion to vacate, set aside, or correct
his sentence within a year after his conviction has become
final. Review under § 2255 is limited to four grounds:
(1) the sentence was imposed in violation of the Constitution
or laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence exceeds
the statutory maximum sentence; or (4) the sentence is
otherwise subject to collateral attack. See 28
U.S.C. § 2255. However, after conviction and exhaustion
of a defendant's right to appeal, the Court is
“entitled to presume that the defendant stands fairly
and finally convicted.” United States v.
Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), quoting
United States v. Frady, 456 U.S. 152, 164 (1982).
According to the Supreme Court, “our trial and
appellate procedures are not so unreliable that we may not
afford their completed operation any binding effect beyond
the next in a series of endless postconviction collateral
attacks . . . to the contrary, a final judgment commands
respect.” Frady, 456 U.S. at 164-65.
issues that can be presented in a motion filed under 28
U.S.C. § 2255 are limited. A defendant can challenge a
final conviction only on issues of constitutional or
jurisdictional magnitude. Shaid, 937 F.2d at 232. As
the Fifth Circuit has stated:
Relief under 28 U.S.C.A. § 2255 is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice. Nonconstitutional claims that could
have been raised on direct appeal, but were not, may not be
asserted in a collateral proceeding.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992) (citations omitted).
a petitioner wishes to assert issues that are constitutional
or jurisdictional in nature, he may be procedurally barred
from raising them. In order to raise an issue for the first
time on collateral review, a petitioner must show both
“cause” for his procedural default and
“actual prejudice” resulting from the error.
Frady, 456 U.S. at 168; Shaid, 937 F.2d at
232. To establish “cause, ” defendant must show
that some external impediment prevented him from raising the
claim on direct appeal. See United States v. Flores,
981 F.2d 231, 235 (5th Cir. 1993) (applying the same
“cause” standard to a prisoner's second
§ 2255 motion). In order to meet the “actual
prejudice” test, he must ...