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Moore v. United States

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

February 14, 2019

JOHN MOORE, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF 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).

         I. BACKGROUND

         Petitioner 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).

         Before 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.).

         Although 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).

         Six 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 competent. (Id.).

         Petitioner 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).

         Moore 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).

         Bell 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. at 128-29).

         This 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).

         Petitioner 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.

         The 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).

         II. ...


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