United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
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).
John Moore used an Apple computer to access and view
thousands of images of child pornography. (Crim. Case No.
3:12-cr-62-FDW, Doc. No. 25 at 3-6: PSR). Authorities
discovered his actions after Petitioner brought the computer
to an Apple Store for repair, and technicians discovered a
video containing child pornography. (Id. at 3). The
technicians contacted authorities, and agents subsequently
obtained a warrant for the computer. (Id. at 4). In
August 2011, agents interviewed Petitioner while he was at
his job at a K&W Cafeteria in Myrtle Beach, South
Carolina. (Id. at 5). Three days later, agents
interviewed Petitioner at the FBI office in Charlotte, North
Carolina, and Petitioner admitted that he repeatedly searched
websites containing child pornography and viewed
approximately 2, 000 images of child pornography.
(Id. at 5-6).
Petitioner's indictment and arrest, he hired the Liberty
Bell law group to represent him. (Doc. No. 1 at 4; Crim. Case
No. 3:12-cr-62-FDW, Doc. No. 35 at 13: Sent. Hr'g Tr.).
a public defender represented Petitioner during his initial
appearance, in November 2012 Petitioner's family hired
Joseph Bell, Jr., to represent Petitioner. See
(Crim. Case No. 3:12-cr-62-FDW, Doc. No. 17 at 1). In April
2013, Petitioner pleaded guilty straight up to one count of
possession child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). (Id., Doc. No. 34: Rule 11
Plea Hr'g Tr.). During the plea hearing, Petitioner
testified that no one had threatened, intimidated, or forced
him to plead guilty and that no one had made him promises of
leniency or a light sentence to induce him to plead guilty.
(Id. at 8). Petitioner affirmed that he was guilty
of the charge. (Id. at 7). He also affirmed that he
had had enough time to discuss any possible defenses with his
attorney and that he was satisfied with his attorney's
services, saying, “I thank God for him.”
(Id. at 8-9). Petitioner reviewed and signed the
written acceptance of plea form, and the magistrate judge
found that his guilty plea was knowingly and voluntarily made
and accepted it. (Id. at 12; Doc. No. 13: Acceptance
and Entry of Guilty Plea).
months later, Petitioner wrote a pro se letter to the Court,
asserting that Bell had provided “insufficient
counsel.” (Id., Doc. No. 16: Motion for
Inquiry of Counsel). Bell moved to withdraw as counsel, and
this Court ultimately granted his motion and appointed
attorney Denzil Forrester to represent Petitioner. United
States v. Moore, 681 Fed.Appx. 241, 243 (4th Cir. 2017).
Over a year after Petitioner pled guilty, he moved to
withdraw his plea. (Crim. Case No. 3:12-cr-62-FDW, Doc. No.
30: Motion to Withdraw Guilty Plea). This Court held four
hearings to consider Petitioner's motion. Moore,
681 Fed.Appx. at 243. Additionally, the Court ordered a
competency evaluation of Petitioner, and he was found to be
argued that he should be allowed to withdraw his guilty plea
because his plea was involuntary because Bell had pressured
him to plead guilty and financial considerations had created
a conflict of interest and colored Bell's advice.
(Id.). The Court heard testimony from
Petitioner's mother, Elizabeth Griffin Moore, and his
sister, Mary Katherine Baer, about the retention of
Petitioner's counsel. (Crim. Case No. 3:12-cr-62-FDW,
Doc. Nos. 56, 75: Hr'g Trs.). Moore testified that she
and her husband had hired an attorney named
“Gina” from California to represent Petitioner,
but they sought new counsel after Gina told them that she
would need additional money to represent Petitioner.
(Id., Doc. No. 75 at 2, 8, 10).
testified that she then had entered into a verbal contract
with Bell to represent Petitioner for $25, 000. (Id.
at 9-10). Moore's brother, James Griffin, paid the legal
fees, which had amounted to $47, 000. (Id. at
10-12). Moore testified that, around March 2014,
Petitioner's sister Mary Katherine Baer asked Bell about
his fees and requested an accounting. See
(Id. at 13, 29, 36, 56). Moore testified that she
felt Petitioner had been bullied into pleading guilty.
(Id. at 51). In her own testimony, Petitioner's
sister Baer testified that Bell had told her that her brother
would likely receive a four- to seven-year sentence.
(Id., Doc. No. 56 at 23). Shortly thereafter, Baer
discovered that her uncle James Griffin had overpaid Bell.
(Id. at 30-31). Bell eventually issued a refund.
See (Id., Doc. No. 75 at 15).
testified that his fee was to be $35, 000, plus expenses.
(Id. at 113-14, 122). He hired a forensic expert,
who reviewed the hard drives and evidence from
Petitioner's computer. (Id. at 116-17). Bell
discussed the findings with Petitioner. (Id. at
117). Bell testified that he also discussed the sentencing
guidelines with Petitioner, but he did not promise Petitioner
that he would be sentenced to four to six years.
(Id. at 118). Bell filed objections to the
presentence report, which, if granted, would have resulted in
a guideline range of 51 to 63 months of imprisonment.
(Id. at 119-20). Bell had a copy of Petitioner's
confession that he was the one viewing child pornography.
(Id. at 120). Bell testified that he would have
proceeded to trial if Petitioner had asked him to.
(Id. at 122). Bell also testified that he did not
discover the overpayment until after Petitioner had pleaded
guilty. (Id. at 124-25). Bell testified that the
financial situation played no role in the advice that he
offered and that he had not coerced Petitioner to plead
guilty. (Id. at 125-26). He acknowledged that
Petitioner expressed dissatisfaction with his decision after
he pleaded guilty. (Id. at 126). According to Bell,
he had researched whether to file a motion to suppress, but
he did not believe there was a basis for moving to suppress
the evidence because Petitioner was not in custody when he
made the statements admitting to viewing child pornography
and his meetings with the FBI were voluntary. (Id.
Court denied Petitioner's motion to withdraw his plea,
making express findings on the factors set forth in
United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Specifically, this Court found that Bell “was a
‘very credible witness,' who had drawn on his
extensive experience to give Petitioner ‘very good
advice' regarding [his] guilty plea”; that there
was no evidence that Petitioner's plea was involuntary,
in light of the Rule 11 colloquy; and that there was
overwhelming evidence of Petitioner's guilt and no basis
to challenge his confession, so Petitioner could not credibly
assert his legal innocence. See Moore, 681 Fed.Appx.
at 244 (quoting findings of the district court). Petitioner
continued to maintain his innocence at sentencing, when the
Court allowed him to convert his guilty plea to an
Alford plea, and, consequently, denied any
adjustment to the guidelines range for acceptance of
responsibility. Id. at 244-45. This Court sentenced
Petitioner to 108 months of imprisonment, the bottom of the
advisory guidelines range. (Crim. Case No. 3:12-cr-62-FDW,
Doc. No. 58: Judgment).
appealed, arguing that this Court had impermissibly
participated in the plea discussions by encouraging him to
enter an Alford plea, that he received ineffective
assistance of counsel, and that this Court erred by denying
his motion to withdraw his guilty plea. The Fourth Circuit
affirmed Petitioner's conviction and sentence.
Moore, 681 Fed.Appx. at 244. The Fourth Circuit
declined to reach Petitioner's ineffective assistance
claim and held that the Court had not erred in denying
Petitioner's motion to withdraw his guilty plea, noting
that this Court had determined that “Moore had received
the close assistance of able and experienced counsel.”
Id. at 245-46.
Supreme Court denied Petitioner's petition for a writ of
certiorari on October 2, 2017. Moore v. United
States, 138 S.Ct. 148 (2017). Petitioner filed the
pending motion to vacate on October 2, 2018, arguing that his
confession was coerced, his privilege against
self-incrimination and his due process rights were violated,
and he received ineffective assistance of counsel. (Doc. No.
1 at 12). Following this Court's order, he corrected his
motion to affirm that it was filed under penalty of perjury.
(Doc. Nos. 4, 5). The Government filed its Response on
February 11, 2019. (Doc. No. 6).