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United States v. Moss

United States District Court, W.D. Kentucky, Louisville Division

May 16, 2019

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
JASON MOSS DEFENDANT/MOVANT

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          LANNY KING, MAGISTRATE JUDGE

         This matter is before the Court on Movant Jason Moss' motion to vacate under 28 U.S.C. § 2255, to which the United States responded in opposition, and Movant replied. (Dockets # 36, 51, 52.) The Court referred the matter to the undersigned Magistrate Judge for findings of fact and recommendation pursuant to 28 U.S.C. § 636 (Docket # 42), and it is ripe for determination.

         Because Movant's claims are without merit, the RECOMMENDATION will be that the Court DENY Movant's Section 2255 motion (Docket # 36).

         Background facts and procedural history

         On May 24, 2017, Movant was charged in a superseding information with receipt of child pornography on or about and between February 19, 2015 and February 23, 2015, in violation of 18 U.S.C. § 2252A(a)(2)(B) (Count 1). (Docket # 22.) Additionally, Movant was charged with possession of child pornography on or about May 6, 2015, which was “different than that charged in Count 1, ” in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 2). (Id.)

         On May 24, 2017, Movant entered into a written plea agreement in which he agreed to plead guilty to Counts 1 and 2 in exchange for the United States' agreement, at the time of sentencing, to agree that a sentence of 87 months' imprisonment is the appropriate disposition of this case. (Docket # 24, Paragraph 11.)

         On May 24, 2017, Movant pled guilty. (Transcript, change of plea hearing, Docket # 46.) The Court established a factual basis for Movant's crimes. (Id. at 170-71.)[1] Movant admitted that the pornographic images he possessed (Count 2) were different from the ones he received (Count 1) and that he acquired them on different dates. (Docket # 46 at 151, 160, 170).

         On November 6, 2017, the Court sentenced Movant. The Court stated that “I have … accepted the binding plea agreement, and I have granted a motion at the bench, thus reducing by two levels the resulting guideline range calculation, which results in a sentence of 87 months.” (Docket # 48 at 182.)[2]The Court sentenced Movant to 87 months' imprisonment on each count to run concurrently for a total sentence of 87 months' imprisonment. (Id. at 180.)

         Movant makes three claims: 1) Trial counsel was ineffective prior to entry of his pleas of guilty; 2) Double Jeopardy was violated because he was convicted of both receiving and possessing child pornography; and 3) Prosecutorial misconduct occurred when the United States (improperly) led him to believe that it would recommend a sentence of less than 87 months if he offered the United States substantial assistance (in prosecuting another person). (Docket # 36 at 129.)

         Standard of review

         Under 28 U.S.C. § 2255, a prisoner in custody may move the court that imposed the sentence to vacate, set aside, or correct that sentence on grounds that:

[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]

28 U.S.C. § 2255(a). Where the movant alleges constitutional error, to warrant relief, the error must be one of constitutional magnitude that had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). Non-constitutional errors, on the other hand, are generally outside the scope of § 2255 relief and only merit relief if the movant establishes a “fundamental defect which inherently results in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 348 (1994); United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000).

         Claim 1

         Movant's first claim is that trial counsel was ineffective prior to entry of his pleas of guilty. (Docket # 36 at 129.)[3] The written plea agreement expressly allowed Movant to raise an ineffectiveness claim in a Section 2255 motion. (Docket #24, Paragraph 12.). In his reply to the United States' response in opposition to his Section 2255 motion, Movant states that he “wishes to withdraw his ineffective assistance of counsel claim at this time.” (Docket # 52 at 226.) As explained below, regardless of the withdrawal, Movant waived his pre-plea ineffectiveness claims when he pled guilty.

         Claims about the deprivation of constitutional rights that occurred before a defendant pled guilty are generally foreclosed by that plea. United States v. Gahan, No. 1:15-cr-28, 2018 WL 5603535, at *8 (W.D. Mich. Oct. 30, 2018) (citing United States v. Broce, 488 U.S. 563, 569 (1989) and Tollett v. Henderson, 411 U.S. 258, 267 (1973)). In Tollett, the United States Supreme Court explained the rationale for the pre- plea waiver rule:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by ...

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