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Mosley v. United States

United States District Court, W.D. North Carolina, Charlotte Division

July 12, 2017



          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1). Also pending before the Court are the following motions: (1) Petitioner's Motion for Access to Sealed Court Records (Doc. No. 35), (2) Petitioner's Motion for Bond (Doc. No. 42); (3) Petitioner's Motion for Status Report Hearing (Doc. No. 68); (4) Petitioner's Motion for Leave to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2255 (Doc. No. 71); (5) Petitioner's Motion for Leave to Supplement Previously Filed 2255 (Doc. No. 73); (6) Petitioner's Motion re: Motion to Vacate/Set Aside/Correct Sentence (Doc. No. 74); (7) Petitioner's Motion to Appoint Counsel (Doc. No. 78); (8) Motion to Withdraw as Attorney by Federal Defender (Doc. No. 80); (9) Petitioner's Motion to Withdraw Counsel and Proceed Pro Se (Doc. No. 81); (10) Petitioner's Supplement Newly Amended Supplement to Motion to Vacate (Doc. No. 82); (11) Petitioner's Motion for Status Report or Hearing re Motion to Vacate/Set Aside/Correct Sentence (Doc. No. 85); and Petitioner's Motion for Leave To Supplement and/or Amend (Doc. No. 89).

         I. BACKGROUND

         1. Petitioner is shot during a drug deal while providing protection with a firearm.

         On March 18, 2011, Charlotte-Mecklenburg Police Department officers responded to a shooting in a Wal-Mart parking lot in Charlotte, North Carolina. (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 73 at 10: 1/7/13 Sentencing Hrg. Tr.; Doc. No. 46 at ¶ 4: PSR). The responding officers found Petitioner lying on the ground, shot in the neck, with a loaded Hi-point, 9-mm, semi-automatic pistol lying next to his body. (Id., Doc. No. 73 at 5-6; Doc. No. 46 at ¶ 4). In investigating the shooting, officers interviewed Barry Adams, who was also at the Wal-Mart parking lot that day. (Id., Doc. No. 73 at 6). Adams reported that he was at the Wal-Mart to sell two ounces of cocaine, which he had received from Petitioner, and that Petitioner was there to provide protection for the deal because Adams was not “comfortable” with the prospective buyer. (Id. at 10). During the deal, as Adams had feared, the buyer pulled a gun and tried to rob Adams of the crack cocaine. (Id.). An exchange of gunfire ensued, with Petitioner firing at the person attempting to rob Adams. (Id.).

         When law-enforcement officers arrived at the scene, Petitioner acknowledged that he had shot back at the individual who robbed Adams, stating that he shot at him about seven times. (Id.). Adams reported to investigating officers that when he leaned down to talk to Petitioner after he had been shot, Petitioner told him that he had crack rocks in his pocket and asked Adams to “[g]et them out” before the police arrived. (Id. at 11). Adams did so, hiding them in an area of the parking lot. (Id.). Authorities later located two grams of crack in the parking lot. (Id.).

         2. On the advice of counsel, Petitioner pleads guilty to having been a felon-in-possession.

         A federal grand jury charged Petitioner with a single count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 8: Indictment). Petitioner eventually retained private counsel, Melissa Owen, who met with Petitioner twice for several hours so Petitioner could review the discovery against him and who ultimately advised Petitioner to plead guilty. See (Civ. Doc. No. 1-2 at 53: 6/12/12 Letter from Melissa Owen to Pet., attached as Ex. B to Pet. Mot. to Vacate (Ex. B)).

         When Petitioner was indicted, he had prior, state-court felony convictions for assault with a deadly weapon causing serious injury, possession with intent to sell or deliver cocaine, and conspiracy to traffic in cocaine, as well as a prior conviction in this Court for conspiracy to possess with intent to distribute crack cocaine. (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 46 at pp. 7-9). In later explaining her decision to advise Petitioner to plead guilty to the felon-in-possession offense, counsel Owen noted that the discovery revealed that witnesses stated that Petitioner did, in fact, possess the firearm at issue and that Petitioner had provided two statements to the police that he possessed the firearm. (Civ. Doc. No. 1-2 at 53). Owen also explained that some witnesses reported that a drug transaction had taken place before the shooting and that Petitioner had been there to provide security for the transaction. (Id.). Owen explained further that she had been informed that Petitioner had “show[n] up in a number of calls setting up drug transactions in a collateral federal drug prosecution” and that the Assistant United States Attorney advised Owen that if Petitioner did not plead guilty to the felon-in-possession offense, she would seek a superseding indictment charging Petitioner with participating in a drug-trafficking conspiracy and possessing a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c). (Id.). Related to this possibility, Owen noted that if Petitioner were charged with a drug-trafficking offense, his criminal history would qualify him as a career offender, subjecting him “to far higher penalties” than faced on the possession charge alone. (Id.).

         Petitioner entered a straight-up plea of guilty to the felon-in-possession offense, and Magistrate Judge David Cayer conducted a colloquy in accordance with Federal Rule of Criminal Procedure 11. (Id., Doc. No. 72: Rule 11 Tr.). During the colloquy, Petitioner reported to the Court that he was not under the influence of alcohol or drugs and that his mind was clear. (Id. at 4). Petitioner also affirmed that he understood the charge to which he was pleading guilty, as well as the maximum penalty he faced, and that he was, in fact, guilty of the firearm offense. (Id. at 4-5, 7). In response to questions about threats or intimidation, Petitioner affirmed that no one had “threatened, intimidated or forced” him into pleading guilty, nor had anyone made him “any promises or leniency or a light sentence” to induce him to plead guilty. (Id. at 8). Finally, Petitioner affirmed that he had had enough time to discuss any possible defenses to the charge with trial counsel and that he was “satisfied with Ms. Owen.” (Id.).

         3. After Petitioner questions the circumstances of his guilty plea, this Court suspends the first sentencing hearing.

         A probation officer prepared a PSR in advance of the sentencing hearing that calculated a total offense level of 25, including a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm during the course of a drug-trafficking transaction. (Id., Doc. No. 28 at 4-5: Draft PSR). Although the probation officer initially believed that Petitioner qualified as an armed career criminal, subjecting him to a statutory mandatory minimum of 180 months in prison, see 18 U.S.C. § 924(e), Owen spoke with the probation officer after Petitioner's pre-sentence interview and explained her argument that Petitioner did not qualify as an armed career criminal. See (Civ. Doc. No. 1-2 at 53-54). The probation officer ultimately agreed with trial counsel, and the final PSR did not include this enhancement. See (Crim. Case No. 3:11-cr-336-RJC-1; Doc. No. 46 at 4-5).

         This Court, the Honorable Max O. Cogburn, Jr., presiding, convened the first sentencing hearing on October 26, 2012.[1] At the beginning of the hearing, this Court questioned Petitioner about his answers during the Rule 11 colloquy to confirm that Petitioner still wanted to plead guilty. (Id., Doc. No. 70 at 2-3: 10/26/12 Sentencing Hrg. Tr.). In response, Petitioner questioned whether he had been “threat[ened] or intimidate[ed]” into entering his first plea based on the Government's advisement to his attorney that they would supersede the indictment to add additional charges if Petitioner did not plead guilty. (Id. at 3). Petitioner also challenged whether he had received all of the discovery in his case and complained that, although he was the victim of a gunshot wound, he was the only one charged arising out of the events at the Wal-Mart parking lot. (Id. at 4-5).

         Although Petitioner questioned whether he had been able to review all of the discovery, he never suggested that he was not guilty, stating, “I ain't saying I'm not guilty.” (Id. at 5). After hearing from Petitioner, this Court decided to suspend the sentencing hearing to enable Petitioner “to view whatever else there is in the [discovery] file that he [had] not viewed.” (Id. at 8). The Court then explained to Petitioner that he would have to decide whether he wanted to move to withdraw his guilty plea. (Id.).

         Before suspending the hearing, the Court explained that the Government had not “improper[ly]” threatened or intimidated Petitioner by agreeing to forego additional charges in exchange for his guilty plea. (Id. at 9). The Court explained that such a negotiation was “pressure but . . . proper pressure of the plea bargaining process.” (Id.). In response, Petitioner insisted that he did not want to go to trial but that he did want a hearing into the veracity of the witnesses against him. (Id.). After further discussion, Petitioner stated that he understood that he would not get that hearing and that he would “take [his] plea.” (Id. at 15). This Court declined to allow the plea at that time, instructing counsel Owen to make all discovery available to Petitioner. (Id. at 18). Counsel Owen agreed, but also noted that Petitioner had “had multiple opportunities to review the discovery . . [a]ll of the paper documents . . . .” (Id.). Owen explained that although there were discs of videotaped interviews that Petitioner had not been able to review because of compatibility issues between the discs and the software at trial counsel's law office, Petitioner was able to review transcripts of each of those recordings. (Id. at 19). This Court instructed counsel to figure out a way to enable Petitioner to view the videos in full. (Id. at 20-21). Although Petitioner continued to insist that he did not want to withdraw his plea and that he could raise the issues he sought to raise in a Section 2255 motion or “later on, ” this Court advised him that he could make that decision after he viewed the videos. (Id. at 11, 21, 23-24).

         4. At the conclusion of the second sentencing hearing, this Court sentences Petitioner to a downward-variance sentence of 100 months in prison.

         This Court convened a second sentencing hearing on January 7, 2013. At the beginning of the hearing, Petitioner affirmed that the answers that he gave during his Rule 11 colloquy were correct and that he was, in fact, guilty of the § 922(g) offense. (Crim. Case No. 3:11-cr-336-RJC-1, Doc. No. 73 at 3). Petitioner stipulated to the facts set forth in the offense conduct section of the PSR that met the elements of the offense, including that he possessed a gun on the day in question. (Id. at 4-7). He refused to stipulate, however, to the facts that purported to establish that “this was a drug deal gone bad.” (Id. at 4, 6).

         In response to Petitioner's objection to the four-level enhancement based on his having possessed the firearm in connection with a drug-trafficking offense, the Government called ATF Special Agent Robert Bryson to testify to the facts establishing that this offense was in the course of a drug-trafficking transaction. See (Id. at 9). Agent Bryson recounted Adams' interview in which he relayed that he was there to sell drugs, that he brought along Petitioner to serve as protection in case the deal went badly, that the drug buyer attempted to rob him, and that this robbery resulted in an exchange of gunfire between Petitioner and the would-be robbers. (Id. at 10-11). Agent Bryson also relayed Petitioner's statements to officers that he (Petitioner) shot at the robbers approximately seven times. (Id. at 10).

         Petitioner's counsel cross-examined Agent Bryson to refute the “drug deal gone bad” scenario. Petitioner's counsel established that Agent Bryson had not personally interviewed Petitioner or Adams and instead was relying on other officers' reports. (Id. at 11-12). Counsel also established that the crux of the evidence came solely from Adams' statement, though Agent Bryson testified that he had also considered what was found at the crime scene and other witnesses' statements. (Id. at 12-13). Counsel elicited that Petitioner did not mention anything about drugs in his interview with law enforcement officials and that several other witnesses, including Adams' girlfriend, did not tell investigators that this was a drug robbery. (Id. at 13-15, 17-18). Counsel further established that Adams did not tell the first CMPD detective to interview him that the robbery was a drug robbery, that for much of his first interview he insisted that this was merely a robbery of $60, and that he changed his story after a two-hour break in the interview. (Id. at 16, 18-20). When asked about the change in Adams' story after a two-hour break and whether any promises had been made to Adams that were not recorded, Agent Bryson testified that ordinarily the recording is not stopped, even during breaks. (Id. at 19). Although Agent Bryson did not know “for sure” whether the recording had been continued during Adams' interview, he testified that continuing the recording was “common practice.” (Id.). Agent Bryson also acknowledged on cross-examination that Petitioner's teenage daughter was interviewed and repeatedly denied that the robbery had anything to do with drugs. (Id. at 20).

         As counsel was cross-examining Agent Bryson about Petitioner's teenage daughter, counsel for the Government requested a moment to speak with Petitioner's counsel. (Id.). The attorneys then had an off-the-record discussion with this Court and, at some point during this conference, the Court relayed that if it assessed the four-level enhancement under § 2K2.1(b)(6)(B) it would “likely” sentence Petitioner at the low-end of the advisory range but, if it did not apply the enhancement, it would sentence Petitioner at the high end of the range. (Id. at 30, 40-41). At the conclusion of this discussion, Petitioner withdrew his objection and requested to move forward to sentencing. (Id. at 21). At some point before Petitioner withdrew his objection, he was informed that if he did not withdraw his objection, the Government would seek a superseding indictment. (Id. at 43).

         Before arguing for a specific sentence, the Government noted that it would not move for the third-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b), given Petitioner's litigious posture between entry of his guilty plea and the sentencing hearing, which included more than 15 filed motions and the fact that he repeatedly declined to accept responsibility for his criminal conduct. (Id. at 21-22). Without the third-level reduction, Petitioner's total offense level was 26, with a criminal history category V, yielding an advisory range of 110 to 120 months. (Id. at 21).

         In response, Petitioner's counsel requested a downward-variance sentence of 100 months. (Id. at 22). Counsel acknowledged Petitioner's litigiousness but argued that, notwithstanding all of his court filings, he never denied that he committed the offense. (Id.). In asking for a lower sentence, counsel recounted the “suffer[ing]” Petitioner had endured as a result of his gunshot wound to the neck and contended that “the justice system has failed him” because no one was prosecuted for the shooting. (Id. at 22-23). This line of argument prompted this Court to observe that “the evidence [was] pretty clear he got shot because he showed up at a drug deal with a gun, ” that Petitioner was “hang[ing] out with gun-toting drug dealing crooks, ” and that Petitioner was shot because he “was a criminal involved with guns and drugs.” (Id. at 23). The Court acknowledged that Petitioner did not “have to agree to every nuance of the crime” but stated that there was “plenty of evidence to support the Government's version [that this was a drug deal gone bad].” (Id. at 24). The Court emphasized that “the justice system is treating [Petitioner] very very fairly.” (Id. at 25).

         Petitioner then spoke on his own behalf, again complaining that he was the only one charged as a result of the shooting incident. (Id. at 26). Petitioner requested a sentence below 100 months and asserted that when he confessed, he was under medication and had been antagonized by law enforcement. (Id. at 27-28).

         The Court sentenced Petitioner to 100 months of imprisonment. (Id. at 39). The Court found that Petitioner had accepted responsibility for the offense, even though Petitioner did not agree “chapter and verse [with] the government's version” of the offense. (Id. at 35). Thus, the Court varied one level “to reach the level the Court believed this should have been sentenced at, and is going to be sentenced at, [a range] ¶ 100 to 125 months.” (Id. at 36). The Court noted its reluctance to vary from the Guidelines, but explained that it “ha[d] to sentence where [the court] believe[d] the sentence ought to go.” (Id.). The Court also noted that its downward variance avoided unwarranted sentencing disparities among defendants who fully accept responsibility for the crimes with which they are charged. (Id.). Even after imposing the sentence, the Court continued to explain its conclusion that 100 months was the appropriate sentence in this case, regardless of the guideline enhancements. (See id. at 41; see also id. at 43 (“I sentenced you to the sentence that I think is appropriate in this case under all these circumstances.”).

         Petitioner appealed, arguing that trial counsel provided ineffective assistance of counsel in withdrawing Petitioner's objection to the four-level enhancement. The Fourth Circuit affirmed this Court's judgment, holding that Petitioner had “failed to demonstrate that ineffective assistance of counsel conclusively appears on the record.” United States v. Mosley, 552 F. App'x 267, 268 (4th Cir. 2014).

         Petitioner now seeks to have his conviction and sentence vacated and has submitted an affidavit in support of the numerous claims raised in his motion. The Government has filed a response to Petitioner's motion to vacate, addressing each of his claims. (Civ. Doc. No. 57). Moreover, since filing his original motion to vacate, Petitioner has filed numerous motions to amend and/or supplement, which the Court addresses below. Petitioner has also filed numerous, other pending motions in this matter, and the Court addresses each of them separately as well.


         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


         A. ...

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