Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MOSES v. U.S.

February 7, 2005.

LEROY A. MOSES, a/k/a JAWAD AMIR MUSA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION & ORDER

By motion dated December 15, 2004, Leroy A. Moses ("Moses"), also known as Jawad Amir Musa, moves, pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure, to vacate this Court's Opinion and Order dated May 20, 1998, denying his habeas petition under 28 U.S.C. § 2255. This motion is denied for the reasons that follow.

BACKGROUND

  In November 1990, a confidential informant ("CI") for the Drug Enforcement Administration ("DEA") offered to sell one kilogram of heroin to David Wray. Moses v. United States, No. 90 Cr. 863 (RPP), 1993 U.S. Dist. LEXIS 4962, at *2 (S.D.N.Y. Apr. 16, 1993). After negotiating with the CI, Wray agreed to pay $20,000 as a down payment for the heroin. Id. Through his personal contacts, Wray eventually discussed the purchase with Moses, who agreed to provide the $20,000 down payment. Id. Moses and the other individuals involved in the conspiracy met the CI in Manhattan on November 27, 1990, in order to complete the transaction. Id. at *4. After the CI gave an arrest Page 2 signal, DEA agents arrested three of the individuals; Moses and two others drove away but were later apprehended in Baltimore, Maryland. Id. at *6.

  On July 2, 1991, Moses was charged in a one-count indictment for conspiracy to possess, with intent to distribute, one kilogram or more of heroin, in violation of 21 U.S.C. § 846. On July 18, 1991, following a jury trial, Moses was convicted of the narcotics conspiracy charged in the indictment. The jury made no findings with respect to the quantity of heroin involved in the conspiracy.

  On December 11, 1992, the Court held a sentencing hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), for the purpose of determining the quantity of heroin for which Moses was liable. On April 16, 1993, the Court found "by a preponderance of the evidence that defendant [Moses] knew that he was engaging in a conspiracy to possess, with intent to distribute, a kilogram of heroin." Moses, 1993 U.S. Dist. LEXIS 4962, at *7-8. Because Moses had two prior felony narcotics convictions, this Court sentenced him to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). The Second Circuit affirmed Moses's conviction and sentence. United States v. Moses, 23 F.3d 396 (2d Cir. 1994).

  On April 10, 1997, Moses filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that (1) certain amendments to the Federal Sentencing Guidelines required or permitted a reduction in his sentence; (2) both his trial and appellate counsel rendered ineffective assistance; and (3) the Government improperly withheld impeachment evidence relevant to his defense. United States v. Moses, No. 97 Civ. 2833 (RPP), 1998 U.S. Dist. LEXIS 7343, at *7-31 (S.D.N.Y. May 20, 1998). On May 20, 1998, the Court denied Moses's § 2255 petition in its entirety and Page 3 declined to issue a certificate of appealability. Id. Moses unsuccessfully appealed the Court's decision not to issue a certificate of appealability.

  On December 23, 2003, Moses, proceeding pro se, filed the instant motion pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure.*fn1 On February 29, 2004, Moses filed a motion for appointment of pro bono counsel, which the Court denied. Moses v. United States, No. 97 Civ. 2833 (RPP), 2004 U.S. Dist. LEXIS 5157 (S.D.N.Y. Mar. 30, 2004). The Government submitted a letter opposing the instant motion on March 16, 2004. On April 12, 2004, Moses submitted his reply memorandum of law, and on May 28, 2004, Moses's attorney filed a supplemental reply memorandum of law with the Court's permission. Moses filed a supplemental "Letter of Authority" on January 18, 2005.

  DISCUSSION

  Moses moves, pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure, to vacate the Court's denial of his § 2255 petition. Rule 60(b) states, in relevant part:

  On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other Page 4 reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time.

 Fed.R.Civ.P. 60(b). "[R]elief under Rule 60(b) is available for a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the previous habeas proceeding rather than the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004).

  Moses argues that this Court should vacate its May 20, 1998 judgment denying his habeas petition made pursuant to 28 U.S.C. § 2255. (Moses's Memorandum in Support of Motion for Relief from Judgment ("Moses's Mem.").) In denying Moses's § 2255 petition, this Court determined that the Second Circuit's holding in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993) procedurally barred two of Moses's four ineffective assistance of counsel claims because he did not raise them on direct appeal.*fn2 Moses, 1998 U.S. Dist. LEXIS 7343, at *13-16. On April 23, 2003, the Supreme Court decided Massaro v. United States, 538 U.S. 500 (2003), which abrogated Billy-Eko and held that failure to bring an ineffective assistance of counsel claim on direct appeal does not bar a petitioner from bringing an ineffective assistance of counsel claim in a later, collateral proceeding. For this reason, Moses claims that Massaro "creates `extraordinary circumstances' warranting vacation of the judgment."*fn3 (Moses's Mem. at 8.) Page 5

  The Government opposes Moses's motion on three grounds. (Government Letter in Opposition to Motion ("Gov't Ltr.").) First, the Government states that the Court did not rely on Billy-Eko when it rejected the ineffective assistance of counsel claims contained in Moses's § 2255 petition. (Id. at 7-9.) Second, the Government argues that Rule 60(b)(6) relief is available only in extraordinary circumstances where the judgment would work extreme and undue hardship, and this is not such a situation. (Id. at 9-10.) And third, the Government argues that Moses's Rule 60(b) motion should be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.