United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
J. DANIEL BREEN, Chief District Judge.
Before the Court is the pro se 28 U.S.C. § 2255 motion of the Petitioner, Decornick Moore, to vacate, set aside or correct his sentence (the "Petition"). (D.E. 1.) Moore, Bureau of Prisons register number XXXXX-XXX, is an inmate at the Federal Correctional Institution in Memphis, Tennessee. For the reasons articulated herein, the Petition is DENIED.
A warrant was issued on January 23, 2012 for Petitioner's arrest pursuant to a criminal complaint entered in Case No. 1:12-cr-10016-JDB on charges of drug trafficking. (Case No. 1:12-10016-JDB, D.E. 1, 12.) After his arrest, he was charged in an indictment and two superseding indictments with conspiracy to traffic in marijuana, 280 grams of cocaine base and more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. ( Id., D.E. 100, 299, 323.) He was also indicted in two other cases in this district, numbered 2:12-cr-20081 and 1:12-cr-10040, on charges of conspiracy to traffic in more than 500 grams of cocaine and of cocaine trafficking. (Case No. 2:12-cr-20081, D.E. 3; Case No. 1:12-cr-10040, D.E. 1.) CJA Panel attorney Michael J. Stengel was appointed by the Court on June 11, 2012 to represent Moore. (Case No. 1:12-10016-JDB, D.E. 261.)
In a plea agreement entered into with the Government in early August 2012, the Petitioner agreed to plead guilty to the conspiracy charge described in Count One of the second superseding indictment in this case. ( Id., D.E. 343.) In return for the plea, the Government would dismiss counts against him in the other two cases in this district. The parties agreed that the correct range of imprisonment pursuant to the United States Sentencing Guidelines ("U.S.S.G.") was 140 to 175 months and that Petitioner should be held accountable for at least 1, 000 kilograms but less than 3, 000 of marijuana equivalent under U.S.S.G. § 2D1.1. The Government recommended a sentence of 140 months. Moore was allowed under the agreement to withdraw his plea in the event he was sentenced to a term above that amount.
At the change of plea hearing on August 9, 2012, the Court, Stengel and the Government were under the impression that the mandatory minimum sentence for Count One of the second superseding indictment was 120 months. In the presentence report (the "PSR") prepared on October 19, 2012, however, the mandatory minimum was calculated as sixty months with a maximum of 480 months. The guideline range recommended in the PSR was the same 140 to 175 month period referenced in the plea agreement and at the change of plea hearing. In his November 20, 2012, sentencing memorandum, Stengel argued for a sentence of eighty-four months. ( Id., D.E. 408.) In its position paper filed on November 21, 2012, the Government acknowledged that the correct statutory minimum sentence was sixty months, but argued that a sentence of 140 months was still appropriate. ( Id., D.E. 409.) In a hearing on November 26, 2012, the Court sentenced Moore to 140 months incarceration followed by four years of supervised release. ( Id., D.E. 412.)
In his Petition, as supplemented,  Moore seeks relief for ineffective assistance of counsel based on the following:
1.... Defense Counsel, the Court and the AUSA individually and collectively misinformed him of the minimum and maximum punishment he faced at the time of his guilty plea [and that] said misinformation rendered his plea of guilty unknowing and involuntary. (D.E. 1-1 at 1.)
2. Counsel advised [Petitioner] if convicted after trial of the drug amount 1, 000-3, 000 kilograms of marijuana equivalent he would receive no less than 10 no[r] more than life if convicted. (D.E. 5 at 1.)
3. Counsel advised [Petitioner] if he persisted to withdraw plea after he learn[ed] offer of minimum and maximum he would get obstruction of justice and perjury charges brought up on him. (Id. )
4. Counsel advised [Petitioner] to get sentenced even though he rendered erroneous advi[c]e and that he (counsel) would testify in [Moore's] behalf... that he gave him erroneous and ineffective advice when negotiating the plea with him when it came to his 2255 relief after he requested to withdraw. (Id. )
5. Counsel failed to object to the rule 11 error from the court and AUSA of the minimum and maximum punishment I faced at my change of plea hearing[, ] but instead agreed with them leading me to enter an involuntary and unknowing plea I would not ...