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Moore v. United States

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

October 23, 2019

MICHAEL LAMONT MOORE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER is before the Court on Petitioner's pro se “Notice of Motion for Rehearing and Reconsideration Based Upon Counsel Being Ineffective and Not Following Up on Michael Moore's Appellate Rights, ” (Doc. No. 5), which is construed as a Rule 59(e) Motion for Reconsideration of the Order dismissing Petitioner's Motion to Vacate pursuant to 28 U.S.C. § 2255 with prejudice as time-barred. The Federal Defender filed two Supplements to Petitioner's Pro Se Motion to Reconsider, (Doc. Nos. 8, 9), as well as a Motion for Entry of Order Requiring Government Response, (Doc. No. 9).

         Petitioner was charged in the underlying criminal case with: Count (1), Hobbs Act conspiracy; Count (2), Hobbs Act robbery (18 U.S.C. § 1951); and Count (3), using and carrying firearms during and in relation to a crime of violence, “that is, the violation of Title 18, United States Code 1951 set forth in Count Two, ” and aiding and abetting the same (18 U.S.C. §§ 924(c), 2). (3:10-cr-208, Doc. No. 3 at 4).

         With regards to the conspiracy charged in Count (1), the Court instructed the jury, in part, as follows:

A conspirator is responsible for offenses committed by another conspirator, if the conspirator was a member of the conspiracy when the offense was committed, and if the offense was committed in furtherance of, and as a foreseeable consequence of the conspiracy.
Therefore, if you have first found the Defendant guilty of the conspiracy charged in Count One, and if you find beyond a reasonable doubt that during the time the Defendant was a member of that conspiracy another conspirator committed an offense in Counts Two or Three in furtherance of and as a foreseeable consequence of that conspiracy, then you may find the Defendant guilty of that offense, even though the Defendant may not have participated in any of the facts which constitute the offense described in Counts Two or Three.

(Id., Doc. No. 151 at 179-81).

         The Court instructed the jury as follows with regards to Count (3):

On or about April 30, 2010, in Mecklenburg County …, the defendants …, aiding and abetting each other and known and unknown to the Grand Jury, during and in relation to a crime of violence, that is, the violation of Title 18, United States Code, Section 1951 set forth in Count Two, for which they may be prosecuted in a Court of the United States, did knowingly, and unlawfully use and carry firearms, and, in furtherance of such crime of violence, did possess said firearms….

(Id., Doc. No. 151 at 183-84).

         The jury found Petitioner guilty as charged. (Id., Doc. No. 101). The Court adjudicated Petitioner guilty and sentenced him to a total of 204 months' imprisonment comprised of 84 months for counsel (1) and (2), concurrent, and 120 months for Count (3), consecutive. (Id., Doc. No. 137).

         On appeal, counsel filed a memorandum brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal, but raising two issues: (1) whether the trial court erred by denying Petitioner's motion for a variance sentence; and (2) whether there was sufficient evidence for the jury to convict Petitioner of using and carrying a firearm in furtherance of a crime of violence. The Fourth Circuit affirmed and stated with respect to the second claim that “the evidence revealed that Moore possessed a gun that he fired at an officer while fleeing police after the robbery [and t]hat gun was also used in the robbery.” United States v. Moore, 530 Fed.Appx. 251, 252 (4th Cir. 2013). The United States Supreme Court denied certiorari. Moore v. United States, 571 U.S. 983 (2013).

         Petitioner filed a § 2255 Motion to Vacate in the instant case: (1) arguing that his § 2255 Motion to Vacate is timely pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015);[1] (2) arguing that his criminal history was incorrectly scored pursuant to Johnson; (3) renewing the claims that were raised and rejected on direct appeal; and (4) arguing that the one-year statute of limitations for filing a post-conviction motion should be equitably tolled. The Court dismissed the § 2255 Motion to Vacate with prejudice as time-barred on August 6, 2015. Moore v. United States, 2015 WL 4663917 (Aug. 6, 2015).

         On August 13, 2015, Petitioner filed a pro se “Notice of Motion for Rehearing and Reconsideration Based Upon Counsel Being Ineffective and Not Following Up on Michael Moore's Appellate Rights.” (Doc. No. 5). Petitioner argues that the Court's Order denying § 2255 relief should be reversed because his § 2255 Motion to Vacate is timely pursuant to Johnson, that he asked counsel for the trial transcript “so that Mr. Moore could perfect his appeal” but that counsel abandoned him, that Petitioner suffers from diminished mental ...


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