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Moore v. Stewart

United States District Court, D. Maryland, Southern Division

September 15, 2016

ANTHONY MOORE, #54607-083 Petitioner,
v.
WARDEN TIMOTHY STEWART Respondent.

          MEMORANDUM OPINION

          GEORGE J. HAZEL United States District Judge.

         On August 13, 2015. Anthony Moore, an inmate housed at the Federal Correctional Institution in Cumberland. Maryland (FCI-Cumberland), filed a Petition for habeas corpus relief under 28 U.S.C. S 2241. On September 9, 2015, the Court directed the Government to file a response to the Petition. The Government filed a Motion to Dismiss and Moore has filed an Opposition. ECF No.9; ECF NO.7. The matter has been fully briefed, and the case is ready for review and may be determined without a hearing. See Local Rule 105.6 (D. Md. 2016).

         I. BACKGROUND

         On December 19, 2002, a federal grand jury returned a twenty-two count indictment charging Moore and thirteen co-defendants with various federal drug and firearm violations. stemming from a conspiracy to distribute heroin and cocaine base. On May 21, 2003, Moore pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute I kilogram or more of heroin and 50 grams or more of cocaine base in the United States District Court for the Eastern District of Virginia, in violation of21 U.S.C. SS 841(a)(1). 841(b)(1)(A), 846. ECF No. 7-1; see also United States v. Moore, Criminal No. 02-cr-0225 AWA (E.D. Va. 2003). During the May 21, 2003 plea colloquy, the sentencing court informed Moore that his offense carried a mandatory minimum penalty of 10 years imprisonment and a maximum possible penalty of a life sentence, with a line not to exceed $4, 000, 000.00. ECF NO.7-1 at 5. Moore indicated his understanding of the seriousness of the penalties. Id. At sentencing on November 12.2003, Judge Jerome B. Friedman examined the drug weights. Moore's role in the offense, and the firearm enhancement. He determined that a downward departure was not warranted and calculated Moore's offense level as 41 under the United States Sentencing Guidelines and his criminal history category as IV, which resulted in an advisory guidelines range of 360 months to life. Moore was sentenced to a 360-month term of imprisonment and five years of supervised release. The remaining counts in the indictment were dismissed. ECF No. 7-2 at 95-103, 133-41. Judgment was entered against Moore on November 14, 2003. Moore's appeal to the United States Court of Appeals for the Fourth Circuit was dismissed.

         Moore tiled a 28 U.S.C. S 2255 Motion to Vacate, which attacked the voluntariness of his guilty plea. the effectiveness of his attorney, and the alleged unconstitutional enhancement of his sentence. See United States v. Moore, Criminal No. 02-cr-0225 AWA (E.D. Va. 2003) at ECF No. 69. The United States District Court for the Eastern District of Virginia denied the Motion on January 20.200.. Id., ECF No. 77. Moore filed Motions to Alter or Amend the Judgment denying his Motion to Vacate. Id., ECF No. 78; ECF No. 79; ECF No. 80. The Motions were denied. Id., ECF No. 80. The Fourth Circuit dismissed the appeal on July 9. 2007. See United States v. Moore, 232 Fed.App'x 291 (4th Cir. 2007).

         Moore filed a second S 2255 Motion in the Eastern District of Virginia. The Motion was dismissed without prejudice as successive on February 28, 2012. See United States v. Moore, Criminal No. 02-cr-0225 AWA (E.D. Va. 2003) at ECF Nos. 221. 225-27. Moore moved to alter or amend the denial of the Motion and the district court denied that Motion on June 13, 2012. Id. ECF No. 233: ECF No. 243. Moore's appeal of the denial of his Motion and reconsideration request was dismissed by the Fourth Circuit on January 16. 2013.1 See United States v. Moore. 504 Fed.App'x 263 (4th Cir. 2013).

         In the instant Petition, Moore argues that (I) his sentence exceeds the statutory maximum in violation of provisions of the U.S. Constitution and (2) that the federal district court lacked subject matter jurisdiction to try, convict, or sentence him under 21 V.S.C. S 846. ECF No. I.

         In the Government's Motion to Dismiss, it is argued that the Court should dismiss the Petition as the relief sought by Moore is more properly brought under a S 2255 Motion to Vacate and S 2255 is not "inadequate or ineffective" so as to file an action under 28 U.S.C. S 2241. ECF NO.7. In his Opposition. Moore identifies "several purely legal questions concerning this Court's habeas jurisdiction and [his1 habeas claims." ECF NO.9 at 1.

         II. ANALYSIS

         Moore seeks habeas corpus relief under S 2241. invoking what is often referred to as the "savings clause" provision under S 2255(e) to seek vacatur of his sentence, criminal judgment and indictment. An inmate may file a motion under S 2255 to collaterally attack the legality of I Moore's subsequent post-judgment Motions to Suspend and Disbar Counsel and to Dismiss the Indictment were denied by the Virginia federal court. The decision was affirmed on appeal on March 4, 2016. See United States v. Moore, 636 Fed.App'x 882 (4th Cir. 2016). his conviction or sentence. 28 U.S.C. S 2255(a); Davis v. United States, 417 U.S. 333, 343 (1974). But generally, a prisoner may file a petition under S 2241 only to challenge the manner in which a sentence is executed. 28 U.S.C. S 2241(c). A prisoner must challenge the legality of his sentence under 28 U.S.C. S 2255 unless "the remedy by motion [under S 2255] is inadequate or ineffective to test the legality of his detention." 28 U.S.C. S 2255(e); see Rice v. Rivera. 617 F.3d 802, 806-08 (4th Cir. 20I0) (per curiam); In re Jones, 226 F.3d 328, 332 (4th Cir. 2000); 28 U.S.C. S 2241(e); see also Farrow v. Revell, 541 Fed.Appx. 327, 328 (4th Cir. 2013) (per curiam) (“A federal prisoner who seeks to challenge the legality of his conviction or sentence generally must proceed pursuant to S 2255, while S 2241 petitions are reserved for challenges to the execution of the prisoner's sentence.") (citing In re Vial 115 F.3d 1192, 1194 (4th Cir. 1997)).

         Section 2255 is not inadequate merely because the inmate is unable to obtain relief under S 2255. In re Vial 115 F.3d at 1194 n.5. Thus, S 2255 is not rendered inadequate because of a limitation bar, the prohibition against successive petitions, or a procedural bar due to failure to raise the issue on direct appeal. Id. (citing Tripali v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988)). Rather, S 2255 is inadequate and ineffective to test the legality of a conviction when:

(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first S 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of S 2255 because the new rule is not ...

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