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United States v. Moore

United States District Court, E.D. Louisiana

August 30, 2019


         SECTION “F”



         Before the Court is Darryl Moore's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the motion is DENIED.


         Darryl Moore, a federal prisoner, asks this Court to vacate his conviction and sentence on the basis that his counsel's erroneous advice rendered his Rule 11(c)(1)(C) guilty plea involuntary.

         On March 23, 2012, a federal grand jury named Darryl Moore in 13 counts of a multi-defendant second superseding indictment. Count 1, in particular, charged Moore with conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Two months later, on May 31, 2012, Moore pleaded guilty to all 13 counts in which he was charged, including the one-kilogram heroin conspiracy count, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In exchange for his plea, the government agreed not to file a Bill of Information, pursuant to 21 U.S.C. § 851(a), which, according to the plea agreement, would have mandated a sentence of life imprisonment, in light of Moore's two prior felony drug convictions. The parties also agreed to a specific sentence of 180 months' imprisonment, and Moore waived the right to appeal his conviction or sentence. He retained, however, the rights to challenge a sentence imposed in excess of a statutory maximum and to bring a claim for ineffective assistance of counsel. During the plea colloquy, U.S. District Judge Berrigan advised Moore of his rights and explained the elements that the government would have to prove if the matter proceeded to trial.[1]After Judge Berrigan detailed the elements that the government would be required to prove, Moore agreed to plead guilty and acknowledged that he was pleading guilty because he was in fact guilty of the offenses charged. He also affirmed that he had reviewed the factual basis with his attorney and that it was correct with respect to his actions.

         At the end of the rearraignment, Judge Berrigan conditionally adjudged Moore guilty with respect to his plea but deferred accepting the Rule 11(c)(1)(C) plea agreement pending review of a Presentence Investigation Report. On October 16, 2012, the U.S. Probation Office released its Final Presentence Investigation Report, which determined that the conspiracy to which Moore had pleaded guilty involved the trafficking of at least one kilogram of heroin. The PSR noted that the amount of drugs seized was less than one kilogram of heroin but determined that the conspiracy involved at least one kilogram based on analysis of wiretap conversations and co-conspirator statements.

         When Moore appeared for sentencing on December 5, 2012, he objected to the PSR's conclusion that he was responsible for one kilogram of heroin. Judge Berrigan overruled Moore's objection and denied his motion to withdraw his Rule 11(c)(1)(C) plea, citing Moore's stipulation in the factual basis and her own review of the case. In response to Moore's interjection that “the drugs, the drugs that you're talking about wasn't my drugs, ” Judge Berrigan stated:

Mr. Moore, don't dig yourself any deeper than you're already in. All right. This case does involve a Rule 11(c)(1)(C) agreement . . . . You objected to the conclusion in the PSR that you were responsible for one kilogram of heroin, and as noted in the factual basis you signed off on that and admitted to that, so I am rejecting that objection.
. . . Mr. Moore, at the time that you entered your plea it was pursuant to a plea agreement, and at this point in time I think it in your best interest I am not going to let you withdraw the plea and so now I am going to unconditionally accept the previously tendered plea of guilty.
. . . The sentence imposed is a stipulated sentence of 180 months under the Rule 11(c)(1)(C) agreement. Even though it is above the guideline levels, I am in favor of it because the government chose not to file a bill which would have resulted in a life sentence . . . .

         Moore timely appealed, after which his counsel of record filed an Anders brief, claiming that the appeal presented no nonfrivolous issue for appellate review. Agreeing with Moore's counsel, the Fifth Circuit dismissed the appeal as frivolous on April 2, 2014. The Supreme Court subsequently denied Moore's petition for a writ of certiorari on October 5, 2015.

         Moore now moves the Court for post-conviction relief pursuant to 28 U.S.C. § 2255, asserting four ineffective assistance of counsel claims.[2]


         A prisoner may file a habeas corpus petition pursuant to 28 U.S.C. § 2255, claiming a right to release from custody on the ground that a sentence ordered by a federal court “was imposed in violation of the Constitution or the laws of the United States.” 28 U.S.C. § 2255(a).[3] “Relief under 28 U.S.C. § 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.” United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). A claim of error that is neither constitutional nor jurisdictional is not cognizable in a § 2255 proceeding unless it constitutes a “fundamental” error that “renders the entire proceeding irregular and invalid.” United States v. Addonizio, 442 U.S. 178, 186 (1979).

         The Court “may entertain and determine [a motion to vacate] without requiring the production of the prisoner at the hearing.” 28 U.S.C. § 2255(c). Having considered the record, the motion, and the government's response, the Court finds that the record is adequate to address the petitioner's claims and to dispose of them as a matter of law. Accordingly, no evidentiary hearing is necessary. See United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995) (“[I]f on th[e] record we can conclude as a matter of law that [the petitioner] ...

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