United States District Court, S.D. New York
July 5, 2005.
ROY MOODY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
Roy Moody, proceeding pro se, brings this petition pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
Moody asserts three grounds in support of his petition. He first
claims that his counsel, Sanford N. Talkin, Esq., was ineffective
because (1) he did not object pursuant to Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to
certain sentencing enhancements used to calculate Moody's
sentence; (2) he did not object to a purported contradiction in
the Presentence Report prepared by the Probation Department; and
(3) he did not object to venue within the Southern District of
New York. Moody claims next that his sentence is unconstitutional
in light of Apprendi and United States v. Booker,
___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Last, he claims that
the purported contradiction in the Presentence Report ("PSR")
rendered the "sentencing process unreliable. . . ." (Pet.'s Mem.
of Law dated Oct. 4, 2004 at 3).
As set forth more fully below, Moody's petition is denied
because Moody's counsel was not ineffective; Moody waived his
Apprendi objection and even if he had not waived the objection,
it is meritless; Booker does not apply retroactively on
collateral review; he waived his objection to the claimed contradiction in the PSR, and even if he
had preserved it, the purported contradiction did not undermine
the sentencing process.
In June of 2001 the government filed a six count indictment
against Moody, charging him with two counts of conspiracy to
distribute 50 or more grams of crack cocaine pursuant to
21 U.S.C. §§ 841(b)(1)(A), 846, and four counts of using, carrying,
and possessing a firearm in connection with a drug trafficking
crime pursuant to 18 U.S.C. 924(c). (See Indictment No. S19 00
Cr. 671 (JSM)).
Specifically, count one charged Moody with participating in a
conspiracy to distribute 50 or more grams of crack cocaine within
1,000 feet of a public school and also to distribute heroin.
Counts two and three charged Moody with using, carrying, and
possessing a firearm in connection with the conspiracy alleged in
count one. Count four charged Moody with participating in a
conspiracy to distribute 50 or more grams of crack cocaine in New
York and North Carolina; counts five and six charged Moody with
using, carrying, and possessing a firearm in connection with the
conspiracy alleged in count four. (Id.).
In August of 2001 the court severed counts one, two, and three,
and the parties proceeded to trial on counts four, five and six.
(See Tr. dated Aug. 24, 2001). After the evidence closed the
court dismissed count five pursuant to Fed.R.Crim.P. 29. (See
Tr. dated Sept. 24, 2001 at 891:3-7). The jury acquitted Moody of
count six but convicted him of count four, which carried a
mandatory minimum sentence of 10 years' imprisonment and a
maximum sentence of life imprisonment. (See Amended Judgment in
a Criminal Case dated Sept. 13, 2002; 21 U.S.C. § 841(b)(1)(A)). In July of 2002, Judge John S. Martin, Jr., who presided over
the trial, dismissed the previously severed counts of the
indictment and sentenced Moody for his conviction on count four.
In calculating Moody's sentence, Judge Martin employed the
then-mandatory U.S. Sentencing Guidelines. Pursuant to the
guidelines, Judge Martin found by a preponderance of the evidence
three facts that adjusted Moody's sentencing range upward.
Specifically, Judge Martin found that "more than 1.5 kilograms
[of crack cocaine] were involved in this conspiracy"; that Moody
used a gun "in furtherance of the narcotics conspiracy"; and that
Moody had obstructed justice. (Tr. dated July 9, 2002 at 13:9-16;
24:10-15; 32:8-15, Ex. A to Letter of Daniel M. Gitner to the
Court dated Apr. 19, 2005). With those enhancements established,
Moody's applicable guideline range was 360 months' imprisonment
to life. (Tr. dated July 23, 2002 at 2:2-6, Ex. B to Letter of
Daniel M. Gitner to the Court dated Apr. 19, 2005).
Although Moody's counsel argued at length against the factual
and legal bases for the enhancements, (Tr. dated July 9, 2002 at
8:20-33:11, Ex. A to Letter of Daniel M. Gitner to the Court
dated Apr. 19, 2005), he did not object to the constitutionality
of the sentencing procedure as violative of the principles
established in Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Judge Martin sentenced Moody to 540
months' imprisonment to run concurrently with a New York state
court sentence that Moody serve 15 years' to life imprisonment
for murder. (Tr. dated July 23, 2002 at 16:7-11, Ex. B to Letter
of Daniel M. Gitner to the Court dated Apr. 19, 2005).
Moody appealed his conviction and sentence and asserted four
grounds: (1) that the court erroneously admitted irrelevant and
prejudicial evidence; (2) that the court erroneously denied him a
downward adjustment in his offense level due to his allegedly
minor role in the conspiracy; (3) that the court erroneously
applied the obstruction of justice enhancement to him; and (4) that the court erroneously attributed 1.5 kilograms of
crack cocaine to him. See United States v. McFadden,
70 Fed.Appx. 31, 33 (2d Cir. 2003) (unpublished summary order).
However, Moody did not assert that his sentence violated the
principles established in Apprendi or that the purported
inconsistency in the PSR rendered the sentencing process
unreliable. The United States Court of Appeals for the Second
Circuit affirmed the district court's sentence in a summary
order, id., and Moody timely filed this section 2255 petition.
II. The Legal Standards Applicable to Moody's Petition
"A motion under § 2255 is not a substitute for an appeal."
United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). "A
party who fails to raise an issue on direct appeal and
subsequently endeavors to litigate the issue via a § 2255
petition most show that there was cause for failing to raise the
issue, and prejudice resulting therefrom." Id. (quoting United
States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995)) (internal
quotation marks and citations omitted); see also Bousley v.
United States, 523 U.S. 614, 622, 118 S.Ct. 1604,
140 L.Ed.2d 828 (1998). Alternatively, a petitioner may raise an issue for
the first time on collateral review "if he can establish that the
constitutional error . . . has probably resulted in the
conviction of one who is actually innocent." Bousley,
523 U.S. at 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (internal quotation marks
and citations omitted).
Cause "under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be
attributed to him. . . ." Coleman v. Thompson, 501 U.S. 722,
753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "Attorney ignorance
or inadvertence" does not constitute cause because the attorney
is the petitioner's agent with respect to the litigation. Id.
However, attorney error that rises to the level of ineffective
assistance of counsel does constitute cause because it is an
independent violation of the Sixth Amendment and thus operates as
an "external factor" that is "imputed to the State." Id. at 753-54
(internal quotation marks and citations omitted).
In turn, to demonstrate ineffective assistance of counsel,
Moody must satisfy the two-pronged test set forth in Strickland
v. Washington, 466 U.S. 668, 688-94, 80 L.Ed.2d 674,
104 S.Ct. 2052 (1984). First, he must show that his attorney's
representation fell below an objective standard of
"reasonableness under prevailing professional norms." Id. at
688. Second, he must show that there is a "reasonable
probability" his sentence would have been different but for the
attorney's error. Id. at 694.
"Judicial scrutiny of counsel's performance must be highly
deferential." Id. at 698. "In considering the reasonableness of
counsel's failure to object," the court must "indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Cox v. Donnelly,
387 F.3d 193, 198 (2d Cir. 2004) (quoting Strickland, 466 U.S. at 689,
80 L.Ed.2d 674, 104 S.Ct. 2052).
As set forth above, Moody asserts that he received ineffective
assistance of counsel, that his sentence violated Apprendi and
Booker, and that an inconsistency in the PSR rendered the
sentencing process unreliable. The Court now turns to each of
A. Moody Did Not Receive Ineffective Assistance of Counsel
Moody urges that his attorney was ineffective for (1) failing
to object pursuant to Apprendi either at sentencing or appeal,
(2) failing to object to an inconsistency in the PSR concerning
information relevant to the sentencing enhancement for
obstruction of justice, and (3) failing to object to venue. The
Court disagrees with each of Moody's assertions.
1. Any Apprendi Objection Would Have Been Meritless In Apprendi, the Court held that a sentence violated the
Sixth Amendment when facts found by the judge by a preponderance
of the evidence resulted in a sentence greater than the otherwise
applicable statutory maximum for the offense of conviction.
Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435. At
the time of Moody's sentencing and appeal, the Second Circuit had
established that even though a sentence is based upon facts found
by a judge by a preponderance of evidence, the "constitutional
rule of Apprendi does not apply where the sentence imposed is
not greater than the prescribed statutory maximum for the offense
of conviction." United States v. Thomas, 274 F.3d 655, 664 (2d
Cir. 2001); see also United States v. Luciano, 311 F.3d 146,
153 (2d Cir. 2002); United States v. Richards, 302 F.3d 58, 66
(2d Cir. 2002); United States v. Garcia, 240 F.3d 180, 183 (2d
Cir. 2001); United States v. McLeod, 251 F.3d 78, 82 (2d Cir.
The statute setting forth the punishment applicable to Moody's
offense of conviction authorized the court to impose a sentence
of life imprisonment, irrespective of any judicial fact finding.
21 U.S.C. § 841(b)(1)(A)(1999). Moody's sentence of 540 months,
therefore, fell within the "prescribed statutory maximum for the
offense of conviction," Thomas, 274 F.3d at 664, and no
Apprendi violation occurred. Accordingly, it would have been
meritless for Moody's attorney to lodge an objection based on
Apprendi either at sentencing or on appeal.
"Counsel's failure to make a meritless argument does not amount
to ineffective assistance." Muniz v. United States,
360 F.Supp.2d 574, 580 (S.D.N.Y. 2005) (quoting United States v.
Arena, 180 F.3d 380, 396 (2d Cir. 1999)). Because Moody's
sentence was consistent with Apprendi and the governing Second
Circuit law interpreting that case, his attorney was not
ineffective for failing to lodge an Apprendi objection at
sentencing or appeal.
2. Petitioner's Attorney Argued Effectively Against the
Obstruction of Justice Enhancement Moody asserts that his attorney was ineffective for failing to
object to an inconsistency in the PSR relating to a two-point
enhancement for obstruction of justice. The PSR was inconsistent,
Moody claims, because at one point it set forth that the
Probation Department lacked information that Moody obstructed
justice, yet at another point it set forth facts, provided by the
government, relating to Moody's obstruction of justice. (Pet.'s
Mem. of Law dated Oct. 4, 2004 at 3, 10).
Even assuming that the PSR was inconsistent on this point, the
attorney's failure to object on the basis of the asserted
inconsistency did not fall below an objective standard of
reasonableness. In fact, he expressly argued against the
obstruction of justice enhancement both at sentencing and on
appeal and in both instances asserted legal and factual reasons
for why it should not apply. (Tr. dated July 9, 2002 at
24:14-32:18; McFadden, 70 Fed. Appx. at 34). Moreover, he
lodged an objection at sentencing to the enhancement for
obstruction of justice. (Tr. dated July 9, 2002 at 32:16-18).
Even if petitioner's attorney's failure to object specifically
to the PSR were objectively unreasonable, which it was not, Moody
has failed to show any resultant prejudice. Moody has proffered
no reason why the court's substantive conclusion that the
enhancement was appropriate would have been any different if his
attorney had objected specifically to the purported inconsistency
in the PSR. Nor does he dispute the facts that convinced the
court to apply the enhancement, namely, Moody's secreting of a
gun from police during a murder investigation. (Id. at
24:20-23; 30:9-25). Accordingly, petitioner's attorney was no
ineffective for failing to specifically object to the claimed
inconsistency in the PSR.
3. Petitioner's Attorney Was Not Ineffective for Failing to
Object to Venue Moody asserts that the overt acts set forth in the indictment
did not occur in the Southern District of New York, and that his
attorney was ineffective for failing to raise lack of venue as an
issue at trial. In a prosecution for conspiracy pursuant to
21 U.S.C. § 846, the government "bears the burden of proving, by a
preponderance of the evidence, that venue exists." United States
v. Naranjo, 14 F.3d 145, 146-47 (2d Cir. 1994). Because "venue
is proper in any district in which the crime was committed," in a
prosecution pursuant to section 846 "venue is proper in any
district in which an overt act in furtherance of the conspiracy
was committed by any of the coconspirators." Id. (quoting
United States v. Ramirez-Amaya, 812 F.2d 813, 816 (2d Cir.
Moody has offered nothing to substantiate his claim that all
overt acts took place outside of this district. In addition, the
trial record reveals that witnesses testified that the overt acts
alleged in the indictment the purchase of cocaine by Moody's
coconspirators as well as other overt acts, took place in
Manhattan, which is within this judicial district. (Indictment
No. S19 00 Cr. 671 ¶ 10(a); Tr. dated Sept. 5, 2001 at 101:3-7;
103:4-13; 112:22-114:8; 117:8-120:6; 161:14-175:12; Tr. dated
Sept. 10, 2001 at 666:16-683:10). This testimony was sufficient
to establish venue in the Southern District by a preponderance of
the evidence, and Moody proffers nothing to controvert this
evidence. Accordingly, the record demonstrates that any objection
to venue would have been meritless, and the lack of objection was
not prejudicial. Moody's attorney, therefore, was not ineffective
for failing to object to venue at trial or on appeal.
B. Moody's Sentence Was Constitutional
Moody next claims that his sentence was unconstitutional
pursuant to Apprendi and Booker because it was calculated on
the basis of facts, such as drug quantity, not submitted to a
jury and proven beyond a reasonable doubt. This claim fails for
three reasons: Moody has waived his Apprendi objection; even if he had preserved it, it
lacks merit; and Booker does not apply retroactively.
Moody failed to challenge his sentence on constitutional
grounds either at sentencing or on appeal, a failure that results
in waiver of the claim unless he can show either cause and
prejudice for the omission, or that he is likely innocent. See
Bousley, 523 U.S. at 623, 118 S.Ct. 1604, 140 L.Ed.2d 828;
Munoz, 143 F.3d at 637. Moody does not assert his innocence.
Instead, he contends that his counsel was ineffective, which, if
true, would constitute cause. However, as set forth above, the
attorney did not render ineffective assistance of counsel during
either sentencing or appeal with respect to Apprendi issues.
Moody asserts no other reason for failing to raise this
constitutional objection previously, and accordingly he has
waived his claim. See Coleman, 501 U.S. 722, 111 S.Ct. 2546,
115 L.Ed.2d 640; United States v. Pipitone, 67 F.3d 34 (2d Cir.
Even if he had preserved the issue, however, the claim would
fail. As set forth above, Moody's sentence was consistent with
Apprendi, which was the governing law at the time his sentence
was imposed and his appeal was decided. Moreover, to the extent
that Moody claims his sentence is invalid in light of Booker
which was decided more than one year after his conviction became
final that case does not apply retroactively. Guzman v. United
States, 404 F.3d 139 (2d Cir. 2005). Therefore, the Court
concludes that Moody's sentence was proper.
C. Any Inconsistency in the PSR Did Not Affect the Sentencing
Last, Moody asserts that the alleged inconsistency in the PSR
regarding the obstruction of justice enhancement "render[ed] the
sentencing process unreliable. . . ." (Pet.'s Mem. of Law at 3).
Again, his claim fails for two reasons: he has waived it and it
lacks merit. Moody did not assert this contention on appeal and his attorney
as set forth above was not ineffective in failing to raise
it. Since Moody offers no other reason for failing to raise this
claim on appeal, he has waived it for the purposes of this
However, even if he had preserved it, he fails to explain how
the alleged inconsistency compromised the sentencing process and
he fails to cite any case law to substantiate his conclusory
assertion. The sentencing court closely considered the
applicability of the obstruction of justice enhancement and
queried both the government and Moody's counsel on this issue.
(Tr. dated July 9, 2002 at 24:14-32:18). Indeed, Judge Martin
held two hearings because he did not "want to do anything with
less than a full record. . . ." (Tr. of Hr'g dated July 9, 2002
at 41:23). Accordingly, considering the arguments against the
enhancement that Moody's counsel advanced as well as the
sentencing court's full consideration of each of the issues
before it, the sentencing process was reliable.
The Court denies Moody's petition because Moody's counsel was
not ineffective; petitioner waived his Apprendi objection and
even if he had not waived the objection, it is meritless;
Booker does not apply retroactively on collateral review; he
waived his claim regarding the purported contradiction in the PSR
and in any event, the alleged contradiction did not undermine the
In addition, because Moody has not made a substantial showing
of the denial of a constitutional right, a certificate of
appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore
v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir.
2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir.
1997). Finally, pursuant to 28 U.S.C. 1915(a)(3), the Court
certifies that any appeal from this Order would not be taken in good faith.
See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917,
8 L.Ed.2d 21 (1962).
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