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MOODY v. U.S.

July 5, 2005.

ROY MOODY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Introduction

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.

  I. Facts

  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 ...


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