Opinion
No. 2:96-CR-0042 (02)
January 9, 2002
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
Defendant MORRIS EDWARD MOORE has filed with this Court a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the reasons hereinafter expressed, the undersigned Magistrate Judge is of the opinion defendant is entitled to no relief and recommends the motion to vacate, set aside or correct sentence be DENIED.
I. FACTS AND PROCEDURAL HISTORY
In January of 1996, a one count indictment was returned against defendant Morris Edward Moore (MOORE) in the 108th District Court of Potter County, Texas for possession of a controlled substance (cocaine) in an amount of 400 grams or more. According to the government's response, the case was accepted by federal prosecutors in the summer of 1996, and the pending state charge was dismissed. On September 10, 1996, the Federal Grand Jury for the Northern District of Texas returned an indictment against MOORE. The indictment contained four (4) counts alleging:
1. That defendant along with co-defendants Nance and Crawford, conspired to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 846;
2. that defendant possessed with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2;
3. that defendant along with co-defendants Nance and Crawford, conspired to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 846; and
4. that defendant possessed with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2;
All offenses were alleged to have occurred on or about November 19, 1995. Mr. George Harwood was appointed by the Court to represent defendant. Mr. Harwood had previously represented defendant MOORE on the state court charge.
On December 10, 1996, after a two day trial, a jury found defendants MOORE and Nance guilty as to all four counts as charged. Sentencing was held March 6, 1996. Defendant MOORE was granted a downward departure, and was sentenced to a term of 87 months confinement on the two cocaine counts, and a term of 60 months on the two marijuana counts, such terms to run concurrently. Mandatory assessments of $200 were levied and defendant MOORE was also sentenced to a 4-year period of supervised release on the cocaine charges, and a 3-year period of supervised release on the marijuana charges, such terms to run concurrently. On March 7, 1997, judgment was entered in accordance with the pronounced sentence.
Charges against defendant Crawford were dismissed in exchange for Crawford's testimony at trial.
Defendant directly appealed his sentence to the Fifth Circuit Court of Appeals asserting as his sole ground that the evidence was insufficient to sustain the conviction. On June 1, 1998, in an unpublished opinion, the Fifth Circuit rejected defendant's claim of error and upheld the conviction and sentence. United States v. Morris Edward Moore, No. 97-10259 (5th Cir. June 1, 1998).
On March 19, 1999, defendant filed the instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. On April 27, 1999, the government filed a response in opposition to defendant's motion to vacate. On June 18, 1999, defendant filed a reply to the government's response.
II. DEFENDANT'S ALLEGATIONS
Defendant raises the following grounds in support of his contention that his conviction and sentence were imposed in violation of the Constitution or laws of the United States:
1. When the jury was charged by the Court, the prosecutor knew that defendant had not been indicted or charged in state court for five kilos of cocaine;
2. The government's expert witness Roy Murphy falsely testified that five kilos of marijuana were booked in with him on November 20, 1995;
3. The government's witness Scott Woolery falsely testified at the state grand jury proceeding about the amount of drugs recovered;
4. Counsel was ineffective for:
a. Failing to object to the federal marijuana charges knowing that no such charges existed at the state level;
b. Failing to obtain a copy of the diagram of the back seat of the vehicle in question;
c. Failing to use the testimony of Officer Woolery from the state grand jury proceeding to impeach him at trial;
d. Failing to call Janice Gutherie as a character witness;
e. Failing to research the work history of Crawford and to discover that Crawford was working for the City of St. Louis in November, 1995; f. Failing to call Trooper Gonzales to testify that only 4 kilos of cocaine were recovered on November 19, 1995;
g. Failing to obtain a severance of his and his co-defendant's trial;
h. Failing to be properly prepared for trial because he had never tried a case in Federal Court;
i. Failing to introduce defendant's salary to show he was not having financial difficulties;
j. Failing to obtain a copy of an accident report which happened the day of defendant's arrest; and
k. Failing to strike juror Linda Hubbart for cause because she had relatives in law enforcement.
5. The government's witness Arthur Crawford falsely testified at trial and thus breached his plea agreement with the government;
6. The government suppressed exculpatory evidence.
III.
GROUNDS 1,2,3,5 AND 6 ARE PROCEDURALLY BARRED
MOORE raises various arguments in grounds 1, 2, 3, 5 and 6 alleging his conviction was obtained by the use of false testimony by government witnesses and as the result of prosecutorial misconduct. These issues however, were not raised on direct appeal, and MOORE presents them for the first time in this section 2255 motion. The government maintains that defendant has presented claims which are too vague for consideration, which are not cognizable under section 2255, and which do not allege a violation of one of his constitutional rights. The government further maintains that defendant has raised no jurisdictional issues, and that the defendant has raised these issues for the first time without establishing the requisite cause and prejudice to excuse his failing to raise such issues on direct appeal. The government thus concludes that defendant's claims are not grounds upon which relief can be granted in a § 2255 proceeding.
Following a conviction and exhaustion of, or waiver of, the right to direct appeal, a defendant is presumed fairly and finally convicted. United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). As a result, review of convictions pursuant to section 2255 is ordinarily limited to questions of constitutional or jurisdictional magnitude. Such issues may not be raised for the first time on collateral review without a showing of cause for failing to raise the issue on direct appeal and actual prejudice resulting from the alleged error. Id. Other types of error (non-constitutional or non-jurisdictional error) may not be raised under section 2255 unless the defendant demonstrates the error could not have been raised on direct appeal and, if condoned, would result in a complete miscarriage of justice. United States v. Cervantes, 132 F.3d 1106 (5th Cir. 1998). See also United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (collateral attack primarily limited to issues of constitutional or jurisdictional magnitude and, even then, movant must show both cause for not raising issue on direct appeal and prejudice because of such failure; other errors may not be raised at all unless movant shows both; that the error could not have been raised on direct appeal, and that the error, if condoned, would result in complete miscarriage of justice); United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992); United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992).
The government vigorously challenges the veracity of all of MOORE's allegations. For purposes of the 2255 analysis, however, the Court need not determine whether the allegations are true, because MOORE has not shown any entitlement to § 2255 relief as a procedural matter. First, the allegations are far too conclusory, and do not reveal what prejudice, if any, MOORE suffered. Further, even assuming the issues raised in grounds 1, 2, 3, 5 and 6 of defendant's motion allege fundamental constitutional errors, this Court is barred from considering such allegations if defendant cannot show cause for his failure to present such claims in the direct appeal of his conviction, and "actual prejudice" resulting from the alleged errors. Since the defendant has put forth no argument to support his failure to raise these issues on direct appeal, he clearly has not met the requisite cause and prejudice test, and his claims under grounds 1, 2, 3, 5 and 6 are barred and must be denied.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Under this ground, defendant MOORE argues he was denied effective assistance of counsel because trial counsel:
1. Failed to object to the federal marijuana charges knowing that no such charges existed at the state level;
2. Failed to obtain a copy of the diagram of the back seat of the vehicle in question;
3. Failed to use the testimony of Officer Woolery from the state grand jury proceeding to impeach him at trial;
4. Failed to call Janice Gutherie as a character witness;
5. Failed to research the work history of Crawford and to discover that Crawford was working for the City of St. Louis in November, 1995;
6. Failed to call Trooper Gonzales to testify that only 4 kilos of cocaine were recovered on November 19, 1995;
7. Failed to obtain a severance of the co-defendant's trials;
8. Failed to be properly prepared for trial because he had never tried a case in Federal Court;
9. Failed to introduce defendant's salary to show he was not having financial difficulties;
10. Failed to obtain a copy of an accident report which happened the day of defendant's arrest; and
11. Failed to strike juror Linda Hubbart for cause because she had relatives in law enforcement.
Ineffective assistance of counsel is an issue cognizable under § 2255 and the proper standard for judging a defendant's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland standard, a defendant must show defense counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A defendant must also show counsel's deficient performance prejudiced the defense. To establish this prong, defendant must show counsel's errors were so serious as to deprive defendant of a fair trial. Specifically, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different or that the errors were so serious as to deprive the [defendant] of a fair trial with a reliable result." Id. at 694.
In order to amount to ineffective assistance of counsel, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Id. at 689. A reviewing court's scrutiny of trial counsel's performance is highly differential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.
INEFFECTIVE ASSISTANCE Ground Number 1
Defendant appears to claim that since he was not charged by the State of Texas for any violations of the law related to the seized marijuana, and was charged with marijuana offenses in federal court, that his counsel, Mr. Harwood, was ineffective. Conspicuously absent from this and a number of defendant's allegations of ineffective assistance, however, is any proposed theory upon which counsel could have obtained the relief defendant MOORE contends he should have received. Defendant seems to be laboring under the misconception that only the crimes charged in state court could be prosecuted in federal court. Not only has the defendant MOORE failed to set out the basis for such a concept, he is absolutely wrong about it. The federal prosecutor was free to charge any and all violations of federal law related to the incident in question, and was not limited to the charges filed in state court. Clearly, defense counsel had no control over the federal prosecutorial decisions, and he cannot be said to have acted unreasonably or ineffectively.Ground Number 2
Defendant claims counsel should have obtained and introduced a diagram of the vehicle involved in the incident to impeach Trooper Woolery's testimony that he found additional drugs under the back seat after Trooper Gonzales initially made the initial discovery of drugs.
The government's response adequately addresses these issues. The defense strategy at trial was that MOORE was unaware drugs were hidden in the vehicle. As such, any testimony as to how the drugs were recovered was not relevant to his defense. MOORE has shown neither prejudice nor ineffectiveness under this ground.
Ground Number 3
Defendant insists counsel should have introduced the state grand jury testimony of Trooper Woolery to impeach him at trial. The government counters that Trooper Woolery did not testify at the state court grand jury proceeding, and defendant has produced nothing showing he did. It appears MOORE is attempting to show Trooper Woolery testified falsely at trial regarding the amount of drugs recovered as evidenced by the original amount listed in the state indictment. Again, MOORE's position appears to be based on the mistaken assumption that the federal prosecution was limited to the amounts charged by the state. As stated in Ground Number 1, the federal government was free to charge defendant with more crimes than had been charged by the state prosecutors. Defendant is not entitled to relief.
Although the government produced no affidavit or other evidence to support this proposition, the burden is on defendant MOORE and he did not contest this assertion in his Reply to Government Brief filed with the Court on June 18, 1999.
Grounds Numbered 4 and 9
Defendant claims his counsel was ineffective because he did not call Janice Gutherie as a character witness and failed to introduce defendant's salary history.
These claims of ineffective assistance of counsel are without merit. Defendant has failed to support the allegations with any independent evidence, witnesses and/or documents, and has completely failed to show any prejudice. While defendant argues that Ms. Gutherie, his girlfriend, should have been called as a character witness because she had a good job with the post office and her house and car were paid for, he has attached nothing to his motion to show the Court what her potential testimony would have actually been or how it would have helped him in any appreciable degree.
The same is true of counsel's alleged failure to introduce defendant's past salary to show he was not having financial troubles. As the government has indicated, defendant MOORE testified at trial that he had been a postal worker for nineteen years and that he was meeting his financial obligations. Nothing has been presented herein to demonstrate how this alleged "omission," which would have been cumulative, prejudiced his case.
Ground Number 5
Defendant claims counsel was ineffective for failing to investigate the work history of government witness Crawford. If he had done so, avers defendant, he would have discovered that Crawford was working for the City of St. Louis in November of 1995. Defendant does not enlighten the Court as to the significance of this testimony.
While the relevance of defendant's assertion is unclear to the Court, the government has directed the Court to Crawford's testimony at trial wherein he stated he was unemployed for three months prior to the drug arrest date of November 19, 1995. Thereafter, testified Crawford, upon his release from state custody, on or about November 20, 1995, he worked for the City of St. Louis until he was indicted on the federal charges.
Since Crawford testified at trial about his work history, including the period immediately prior to the drug arrest date in November of 1995, it is unclear what else defendant wanted his counsel to do. Moreover, MOORE has presented no evidence to contradict Crawford's testimony at trial, nor has he presented what additional evidence counsel could or should have uncovered.
Ground Number 6
In this ground of error, defendant appears to argue that counsel was ineffective for failing to call Trooper Gonzales as a witness to rebut the trial testimony of Trooper Woolery. While it is far from clear, as best the Court can discern, defendant is alleging Trooper Gonzales would have testified that only cocaine was recovered on the day in question. At trial, Trooper Woolery testified about the recovered cocaine and marijuana. Defendant's claim in this regard is nothing more than a conclusory allegation. He has presented absolutely nothing in the way of evidence to support his belief as to what Trooper Gonzales might have said if called as a witness and, has not shown that such testimony would have benefitted him.
Ground Number 7
Defendant states counsel was ineffective for failing to obtain a severance of trial, instead causing defendant to be tried with a co-defendant with a prior conviction. The government agreed, however, to forego the use of MOORE's co-defendant's prior conviction during trial, and counsel for the co-defendant informed all parties that his client would not be testifying. MOORE has presented no grounds justifying severance under Rule 14, of the Federal Rules of Criminal Procedure. Counsel cannot have said to have been ineffective where he had no ground upon which to obtain a severance.
Ground Number 8
Defendant next argues counsel was ineffective because he was not properly prepared to try MOORE's case in that he had no prior experience in federal court. The government obtained an affidavit from Mr. Harwood in which he relates that he has been licensed to practice law in the State of Texas for twenty-five years during which time he has represented criminal defendants in more than 100 criminal jury trials. Defendant has presented nothing to show prejudice or, more significantly, failed to show a lawyer is per se ineffective in his initial federal case.
Ground Number 10
Defendant argues counsel should have attempted to obtain a copy of an accident report about a traffic accident witnessed by defendant prior to his arrest, which he claims would explain his nervousness when stopped by officers. However, the government's witness Crawford corroborated defendant MOORE's testimony that they had witnessed a horrible accident. MOORE explained to the jury that this was the source of his nervousness. MOORE has failed to show how the lack of introduction of a police report prejudiced his case.
Ground Number 11
In his last claim of ineffective assistance of counsel, defendant claims that one of the jurors should have been stricken from the panel because she had relatives in law enforcement. This fact was not revealed to the trial court until the panel had been seated because the juror said she forgot about such law enforcement connections. The trial court allowed both defendants and their counsel to confer to determine whether they would like to strike the juror and use the first alternate or keep the juror. The decision was made to keep the original juror and defendant has not shown the Court that this was anything other than trial strategy, nor has he shown that the outcome of his case would have been different without this juror.
The fact that the juror had in-law relatives in law enforcement would not, in and of itself, warrant excusing the juror for cause.
For the above listed reasons, defendant's ineffective assistance claims must fail.
V. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge that the motion to vacate, set aside and correct sentence, filed by defendant MORRIS EDWARD MOORE be DENIED.
VI. INSTRUCTIONS and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to defendant utilizing the inmate correspondence card, and to each attorney of record by regular U.S. Mail or other pre-arranged means.
Any party may file objections to this Report and Recommendation within fourteen (14) days after the date of its filing. 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Defendant shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. Defendant's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).