United States District Court, S.D. Illinois
June 3, 2005.
WILLIAM MOSS, #05531-025, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: G. PATRICK MURPHY, Chief Judge, District
MEMORANDUM AND ORDER
On May 25, 2004, William Moss filed the instant motion pursuant
to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by
a person in federal custody (Doc. 1). He has also filed a
supporting memorandum (Doc. 7). The Government responded to the
motion on October 4, 2004 (Doc. 6), and Moss filed a reply (Doc.
9). On October 26, 2004, Petitioner filed a motion to stay these
proceedings (Doc. 8).
Pursuant to Rule 8(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts,
If [a 2255] motion has not been dismissed at a
previous stage in the proceeding, the judge, after
the answer is filed and any transcripts or records of
prior court actions in the matter are in his
possession, shall, upon a review of those proceedings
and of the expanded record, if any, determine whether
an evidentiary hearing is required. If it appears
that an evidentiary hearing is not required, the
judge shall make such disposition of the motion as
The Seventh Circuit has noted that "[n]o hearing is required in
a section 2255 proceeding if the motion raises no cognizable
claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by
the motion may be resolved on the record before the district
court." Oliver v. United States, 961 F.2d 1339
, 1343 n. 5
(7th Cir. 1992), citing United States v. Frye, 738 F.2d 196
(7th Cir. 1984). In this case, the Court finds that the
factual matters raised by the motion may be resolved on the
record, and the motion raises no cognizable claim. Accordingly,
the Court will resolve the motion without a hearing.
A federal grand jury returned a multi-count indictment against
William Moss and others on December 6, 2000. (See Doc. 1 in
Cause No. 00-CR-40101-GPM.) Two superseding indictments were
filed after the initial indictment. (See Docs. 37, 54 in
On March 6, 2001, a federal grand jury returned a multi-count
third superseding indictment (Doc. 158). William Moss was charged
in Count 1 with conspiring to distribute and possess with intent
to distribute more than five (5) grams of a mixture and substance
containing cocaine base ("crack cocaine") and cocaine. Count 2
charged Moss with knowingly and intentionally distributing a
mixture and substance containing cocaine base ("crack cocaine")
on May 10, 2000. Count 3 charged Moss with knowingly and
intentionally distributing a mixture and substance containing
cocaine on May 25, 2000. Count 4 charged Moss with knowingly and
intentionally distributing a mixture and substance containing
cocaine on June 1, 2000. Count 5 charged Moss with the crime of
brandishing a firearm on June 16, 2000, during and in relation to
a drug trafficking crime, in violation of Title 18, United States
Code, Section 924(c).
The undersigned District Judge presided over the jury trial of
this matter from March 20-22, 2001. The jury found Moss guilty of
all counts and made a specific finding beyond a reasonable doubt
that the conspiracy involved more than 5 grams of cocaine. This
Court subsequently imposed a sentence of 377 months imprisonment, 8 years of supervised
release, a $10,000 fine, and a $500 special assessment. Moss
appealed, and the Seventh Circuit affirmed the conviction and
sentence. See United States v. Moss, 57 Fed. Appx. 704 (7th
Cir. 2003). The United States Supreme Court denied certiorari.
See Moss v. United States, 538 U.S. 1067 (2003).
Moss argues that his sentence should be vacated, set aside, or
corrected for the following reasons: (1) trial counsel failed to
pursue a plea bargain on his behalf when the evidence against him
was overwhelming; (2) the Court failed to make an adequate
inquiry to address an obvious conflict of interest between Moss
and his attorney; and (3) trial counsel was ineffective for
failure to object to introduction of statements made by witnesses
who were not available at trial for confrontation and
Title 28, United States Code, Section 2255 provides that "[a]
prisoner in custody under sentence of the court established by
Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject
to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence." Thus,
collateral relief is available to Moss only if any legal error in
his conviction is "jurisdictional, constitutional, or is a
fundamental defect which inherently results in a complete
miscarriage of justice." Oliver, 961 F.2d at 1341, quoting
Haase v. United States, 800 F.2d 123, 126 (7th Cir. 1986).
In other words, a Section 2255 motion does not serve as a
substitute for a direct appeal.
There are three types of issues that cannot be raised in a
motion brought pursuant to Section 2255: (1) issues that were raised on direct appeal, absent a
showing of changed circumstances; (2) nonconstitutional issues
that could have been but were not raised on direct appeal; and
(3) constitutional issues that were not raised on direct appeal,
absent a showing of either good cause for the procedural default
and actual prejudice stemming from the alleged error, or that the
district court's failure to consider the issue would result in a
fundamental miscarriage of justice. See McCleese v. United
States, 75 F.3d 1174, 1177 (7th Cir. 1996); Degaglia v.
United States, 7 F.3d 609, 611 (7th Cir. 1993); Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992), reversed
on other grounds, Castellanos v. United States, 26 F.3d 717
(7th Cir. 1994).
The United States Supreme Court has held that ineffective
assistance of counsel may constitute cause for a procedural
default, but "[s]o long as a petitioner is represented by counsel
whose performance is not constitutionally ineffective under the
standard established in Strickland v. Washington, there is no
inequity in requiring him to bear the risks of attorney error
that results in a procedural default." Murray v. Carrier,
477 U.S. 478, 488 (1986), citing Strickland v. Washington,
466 U.S. 668, 687 (1984). To prove "prejudice," Moss must show "not merely
that the errors . . . created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage,
infecting his entire trial [or appeal] with error of
constitutional dimensions." United States v. Frady,
456 U.S. 152, 170 (1982) (emphasis in original).
Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, Moss
must show that his counsel's "performance was deficient, which
means that counsel's errors were so serious that they deprived
[him] of `counsel' within the meaning of the Sixth Amendment, and
that the deficient performance prejudiced him, which means that
counsel's errors were so serious that they deprived him of a fair trial with reliable results." Mahafey v. Schomig, 294 F.3d 907,
918 (7th Cir. 2002), citing Strickland, 466 U.S. at 687.
The Seventh Circuit has noted that "[r]egardless of when it is
made, because counsel is presumed effective, a party bears a
heavy burden in making out a winning claim based on ineffective
assistance of counsel." United States v. Trevino, 60 F.3d 333,
338 (7th Cir. 1995).
There is no merit to the claims that trial counsel was
ineffective. The Government's response and accompanying affidavit
from trial counsel establish that no plea agreement was ever
offered to Moss. The Government was certainly under no obligation
to offer Moss a plea agreement, and Moss has not offered any
facts to show that he would have received a more favorable
sentence even if he had entered an open plea of guilty. His
assertions that he would have thought about pleading guilty and
that he would have received a lesser sentence are mere
conjecture. The mere possibility of prejudice is insufficient to
demonstrate actual prejudice. See Prewitt v. United States,
83 F.3d 812, 819 (7th Cir. 1996). And, because Moss has
continued to proclaim his innocence at every stage of the trial,
at sentencing, and even in his collateral attack, his claim now
that his lawyer should have talked him into pleading guilty is
without merit. See, e.g., Sanders v. United States,
341 F.3d 720 (8th Cir. 2003).
The other arguments that trial counsel was ineffective likewise
fail. Moss fails to demonstrate what witnesses provided hearsay
testimony or who was "unavailable" for trial. He makes only bare
accusations hoping that something will stick. He admits to a
conspiracy between himself and his brother, Randall Moss, but he
argues that he never conspired with the other alleged
co-conspirators. Unfortunately, he simply fails to understand the
law of conspiracy, as the Government points out in detail. Moss
has simply failed to show that there was any error of
constitutional dimension. Conflict of Interest
Moss argues that there was an "obvious" conflict of interest
between him and his attorney. No such issue was raised on direct
appeal, however, and as stated above, this cannot be raised now,
absent a showing of cause and prejudice. Moss has offered no
cause for his failure to raise the issue before now.
Even if the issue was preserved, there is nothing to support
the bare assertion that a conflict of interest existed. Moss
makes no reference to which attorney has a conflict of interest,
and the Government correctly points out that Moss had four
different lawyers during the proceedings. He likewise fails to
provide any facts about the nature of the supposed conflict. For
these reasons, this claim is denied.
Finally, Moss has filed a motion to stay, arguing that this
Court should not rule on the instant 2255 motion until the
Supreme Court decides the case of United States v. Booker. This
request is obviously moot, because the Supreme Court decided the
Booker case several months ago. See United States v. Booker,
125 S.Ct. 738 (Jan. 12, 2005). In Booker, the Supreme Court
held that defendants have a right to a jury trial on any disputed
factual subject that increases the maximum punishment. The
federal Sentencing Guidelines come within this rule to the extent
that their operation is mandatory. This means that the sentencing
guidelines are now only advisory.
The problem for Moss, however, is that the judgment in this
case became final on March 31, 2003, when the United States
Supreme Court denied certiorari. See Moss v. United States,
538 U.S. 1067 (2003). The Seventh Circuit recently ruled that
Booker does not apply retroactively. See McReynolds v. United
States, 397 F.3d 479 (7th Cir. 2005). Thus, there is no
reason to accept additional briefing on this issue.
For the foregoing reasons, the motion for relief pursuant to
28 U.S.C. § 2255 is DENIED, and this action is DISMISSED with
prejudice. The motion to stay (Doc. 8) is DENIED as moot. The
Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
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