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Moore v. United States

United States District Court, D. Maryland

August 29, 2017

COREY A. MOORE, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. TDC-10-0648



         Corey A. Moore has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("2255 Motion"). In his Motion, Moore challenges his conviction in the underlying criminal action on the basis that his trial counsel operated under a financial conflict of interest such that his waiver of his right to a jury trial was invalid. On July 18, 2017, the Court held an evidentiary hearing at which it heard testimony from Moore, attorney Brian McDaniel, and former Assistant United States Attorney Jonathan Lenzner. See 28 U.S.C. § 2255(b) (2012). The parties have since filed supplemental briefing as requested by the Court. For the reasons set forth below, the Motion is denied.


         On October 20, 20I0, Moore was charged with possession with intent to distribute cocaine hydrochloride, possession with intent to distribute one kilogram or more of phencyclidine (PCP), possession of firearms in furtherance of a drug trafficking crime, and possession of firearms and ammunition by a convicted felon. After initially receiving appointed counsel, Moore retained Vandy L. Jamison, Jr. as his attorney on October 28, 2010 before retaining attorney Brian McDaniel, who became the attorney of record on November 12, 2010. McDaniel continued to represent Moore through July 10, 2013.

         Moore wanted McDaniel to represent him because of his reputation as one of the best defense attorneys and someone who would "fight" on behalf of his clients. They entered a retainer agreement under which Moore and his family would pay $30, 000 for the representation through the trial, with the expectation that the full amount would be paid prior to the trial date. In 2011, after paying $15, 000 of the retainer fee up front, Moore and his family were unable to make further payments toward the $30, 000 total. According to Moore, during their initial meeting in or about January 2011, McDaniel told him that if the remainder of the payments were not made, the only way he would be able to represent him would be through a bench trial. Moore told McDaniel that he did not want to have a bench trial and would try to pay the full retainer fee. McDaniel denies telling Moore that if he was not paid in full, he would conduct only a bench trial.

         On January 2, 2011, McDaniel filed a Motion to Suppress Tangible Evidence in which he argued that evidence seized pursuant to a search warrant should be suppressed because the search warrant affidavit did not establish probable cause. According to McDaniel, he had discussed the motion with Moore before filing it. On April 13, 2011, United States District Judge Alexander Williams, Jr. granted the motion. After the Court denied the Government's Motion for Reconsideration on May 31, 2011, the Government filed an interlocutory appeal. On April 24, 2012, the United States Court of Appeals for the Fourth Circuit reversed the district court's decision on the Motion to Suppress, upholding the inclusion of the evidence under the good faith exception. The case was remanded to the district court for trial.

         The Court then scheduled a jury trial for October 30, 2012. Prior to that trial date, McDaniel had several conversations with Moore about waiving his right to a jury trial. According to McDaniel, he recommended a bench trial because Judge Williams had ruled in Moore's favor on the suppression motion and had been troubled by the information upon which the officers relied in getting the search warrant. McDaniel therefore thought that if there was "some gray area, " Judge Williams might rule in Moore's favor. He also believed that, even if evidence about Moore's history was not formally admitted at trial, Judge Williams was aware that Moore, who had been acquitted in several other cases, had a reputation as the "Teflon defendant, " which was relevant to the defense theory that the Government planted evidence on him. McDaniel notified the prosecutor, Assistant United States Attorney Jonathan Lenzner, that Moore would be seeking a bench trial. According to Lenzner, however, McDaniel described the request for a bench trial as Moore's idea and stated that he was trying to talk Moore out of it.

         As it turns out, the October 2012 trial date was continued after the Government disclosed shortly before trial that certain swabs taken of the firearms in question had never been tested for DNA. Although McDaniel believed that such testing was not necessary, Moore successfully insisted that McDaniel push to have the tests conducted before trial. As a result of the testing, the jury trial was rescheduled to February 5, 2013. According to Moore, prior to this trial date, McDaniel again told him that if he was not paid the remainder of the retainer fee, he would conduct only a bench trial. Moore asserts that he acquiesced to waiving a jury trial and proceeding with a bench trial because he had no other choice since he had retained McDaniel and believed he was therefore "stuck" with him. According to McDaniel, he never threatened that he would refuse to conduct a jury trial if his full retainer fee was not paid, and the decision to seek a bench trial was, as before, based on trial strategy. McDaniel also testified that he has had other clients who had not fully paid the agreed upon legal fees, but those clients never waived their right to a jury trial.

         On February 5, 2013, the date the trial was to begin, McDaniel filed a waiver of jury trial signed by Moore. At the Government's suggestion, Judge Williams conducted a colloquy in open court about the waiver in which he explained Moore's right to a jury trial, including the requirement that 12 jurors rather than a single judge would have conclude that the government has proven his guilt beyond a reasonable doubt in order to sustain a conviction, and confirmed that Moore wished to proceed with a bench trial. Satisfied that Moore was acting knowingly and voluntarily in waiving a jury trial, Judge Williams accepted the waiver and began the five-day bench trial. The bench trial concluded on February 11, 2013. Moore was found guilty on all four counts.

         Meanwhile, on February 3, 2013, concluding that Moore could not afford to pay him, McDaniel had filed a Motion for Appointment of Counsel Pursuant to the Criminal Justice Act ("CJA") in order to receive attorney's fees from the Court. At the end of the first day of the bench trial on February 5, Judge Williams discussed, as an ex parte matter, the CJA motion with McDaniel. In the discussion, Judge Williams described the restrictions on CJA funding available. On February 6, 2013, McDaniel's CJA motion was granted, effective February 4, 2013. The Order allowed McDaniel to bill for reasonable time from the first day of trial until sentencing and stated that "the compensation limit is capped at actual hours not to exceed 77.6 hours or $9, 700.00." Order, ECF No. 67. Moore asserts that he was not informed either before his waiver or during the trial that McDaniel had requested or been approved for CJA funds.

         On June 3, 2013, Moore was sentenced to a total of 271 months of imprisonment. On June 5, 2013, Moore moved to have McDaniel withdraw as counsel for his appeal because of "adversarial differences." Mot. Withdraw, ECF No. 103. McDaniel filed his own Motion to Withdraw as Counsel, stating that differences "about certain trial decisions and how best to posture the Defendant at Sentencing" began "[a]fter the verdict and prior to the sentencing in this matter." Mot. Withdraw, ECF No. 128-6. The Motion to Withdraw was granted on July 10, 2013.

         After Moore's conviction was affirmed on appeal, Moore filed identical Motions to Vacate pursuant to 28 U.S.C. S 2255 on December 28, 2015 and January 8, 2016. Separately, Moore filed a Motion to Reduce Sentence under Amendment 782, to which the Government noted its consent. The Court granted the Motion to Reduce Sentence on December 16, 2016, reducing Moore's term of imprisonment to a total of 211 months.


         In his 2255 Motion, Moore identifies two related constitutional grounds for relief. First, he asserts that McDaniel "operated under a 'financial conflict of interest' when he chose to forgo a jury trial in favor of a bench trial for movant solely because movant could no longer afford his representation for the more extensive jury trial." 2255 Motion 9, ECF No. 117. Second, he alleges that his waiver of jury trial was invalid because McDaniel "presented the waiver of jury trial to movant as the only alternative course of action under the financial circumstances that restrained ...

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