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United States v. Moore

January 18, 2006

M. L. MOORE, #07549-424, DEFENDANT.

The opinion of the court was delivered by: Charles P. Kocoras, Chief District Judge


This matter comes before the court on the motion of Defendant M. L. Moore to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.


Moore is a former Chicago police officer who was the subject of an undercover investigation of police corruption in 1996. The indictment charged him with racketeering and racketeering conspiracy, extortion, robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 et seq.; distribution and possession of cocaine, cocaine base, heroin, and marijuana; and using and carrying a firearm in relation to a crime of violence or drug trafficking. He was convicted by a jury and sentenced to 1312 months.

Moore appealed his conviction and sentence to the Seventh Circuit. He requested review of numerous issues: the proper scope and application of the Hobbs Act, the propriety of the firearm offenses as applied to his situation, issues with particular instructions given to the jury, the fact that his trial was not severed from that of one of his co-defendants with alleged gang affiliations, the use of an unredacted version of his proffer statement, and the introduction of a post-arrest statement of another co-defendant that inculpated him. After considering each of Moore's arguments, the court affirmed his conviction and his sentence. His petition for certiorari was denied by the United States Supreme Court on October 4, 2004.

Less than a year after the denial of certiorari, Moore filed the instant motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Over the ensuing four months, he moved to amend the petition six times. The government then filed its response; thereafter Moore filed a 107-page memorandum in response as well as an additional motion to amend.


Relief under 28 U.S.C. § 2255 is limited to situations where a conviction or sentence is founded in "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994). However, § 2255 motions are not intended to recapitulate issues addressed on direct appeal; decisions of the appellate court are binding as the law of the case. Daniels v. United States, 26 F.3d 706, 711 (7th Cir. 1994). Absent changed circumstances of fact or law, a court can decline to reconsider an issue already decided on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). If an issue could have been presented on direct appeal but was not, it is subject to procedural default. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). Procedurally defaulted claims can still be considered if the petitioner can show cause for the failure to raise them on appeal and actual prejudice resulting from the initial error. Id.


In light of Moore's multitude of submissions in connection with this motion, we must as a threshold matter consider what precisely comprises the motion under consideration. The rules governing § 2255 proceedings do not specifically address attempts to amend § 2255 motions. In such a circumstance, Rule 12 of the special rules for § 2255 proceedings provides that we may implement any consistent federal rule of criminal or civil procedure, which in this instance would be Federal Rule of Civil Procedure 15(a). See Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999).

Under Rule 15(a), Moore's first amendment was made as a matter of right since the government had not yet responded. Subsequent amendments are permissible only by leave of court, which is freely given when justice so requires. If there is an apparent reason not to permit the amendment, such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment," Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962), the motion may be denied. See, e.g., Payne v. Churchich, 161 F.3d 1030, 1036-37 (7th Cir. 1998).

With respect to the amendments requested before the government filed its response, the only argument the government has raised is timeliness. It is unclear whether the government intended to argue only that the amendments involved some delay or that the one-year cutoff for § 2255 claims under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") had expired for some of the changes made. 28 U.S.C. § 2255 ¶ 6. Neither basis alone offers good grounds for denial of the amendments. With respect to the operation of AEDPA's one-year cutoff, the relation back doctrine for amendments in civil cases also applies to § 2255 motions. See, e.g., Rodriguez v. United States, 286 F.3d 972, 980-81 (7th Cir. 2002). Rule 15(c)(2) provides that an amendment filed after the applicable limitations period has expired relates back to the timely filing date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Recently, the Supreme Court examined whether the phrase "conduct, transaction, or occurrence" encompassed every event relating to the trial or conviction under attack and concluded that it did not. See Mayle v. Felix, 125 S.Ct. 2562, 2566 (2005). Instead, the new ground for relief must be supported by facts alike both in time and in type to those in the original pleading. See id.*fn1

Applying the teaching from Felix to Moore's two untimely amendments, we conclude that they do not relate back to the original pleading. Specifically, the November 29 motion to amend presents claims of official interference and an argument of factual innocence. These issues are not based on facts of the same time and type as those Moore had previously raised. As for the 107-page "memorandum in support" also filed November 29, it consists primarily of numerous new arguments and text of cases or portions thereof with no development or connection to the specifics of Moore's contentions. A litigant, whether pro se or not, has a responsibility to present cogent, targeted argument, and we will accordingly not sift through such a voluminous, rambling submission. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

That brings us to the six amendments filed before the one year expired. Although delay is often a factor that must be considered in assessing a motion to amend, it is seldom sufficient by itself to warrant denial of leave. See Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir. 2004). Particularly in cases where the delay is not substantial, the amendment will be allowed unless the party opposing it would be significantly prejudiced. Here, the government was aware of Moore's additional assertions that were filed as of the date of its response (October 26, 2005) and addressed them. Consequently, we cannot conclude that the government was prejudiced by their inclusion in the motion. With respect to changes Moore attempted to insert after the government filed its response, the analysis changes. The government ...

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