United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
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).
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
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).
Court instructed the jury as follows with regards to Count
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
(Id., Doc. No. 151 at 183-84).
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).
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).
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); (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).
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