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Moore v. United States

United States District Court, S.D. New York

February 19, 2015

KENNETH MOORE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION & ORDER

KATHERINE B. FORREST, District Judge.

Kenneth Moore, presently incarcerated in FCI Beckley, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the bases that (1) he received ineffective assistance of counsel at his sentencing hearing due to his attorney's failure to investigate and object to the allegedly false facts that he pointed a weapon at a child during a robbery and that he used an icepick during a violent altercation while in custody awaiting sentencing, and (2) the Government breached his plea agreement by making certain comments at his sentencing hearing. (14-cv-3221 ECF No. 1 ("Pet.").)

On March 30, 2012, the Court sentenced Moore to 120 months' imprisonment, three years supervised release, and a $400 special assessment. (10-cr-954 ECF No. 99; 10-cr-971 ECF No. 48.) The Second Circuit affirmed his sentence on January 17, 2015. United States v. Horne, 552 Fed.App'x 44, 46-47 (2d Cir. 2014) (summary order). For the reasons set forth below, Moore's petition is DENIED.

I. BACKGROUND

On June 9, 2009, New York City Police Department ("NYPD") officers on patrol in the Bronx stopped a livery cab that was speeding and driving erratically. (Presentence Investigation Report ("PSR") ¶ 22.) When the officers looked inside the car, they found Moore, another man, and two firearms in the backseat. (PSR ¶¶ 24-25.) The officers arrested the two men, and recovered a.40 caliber pistol and ammunition from Moore. (PSR ¶¶ 25-26.)

On July 23, 2010, Moore robbed a Bronx grocery store at gunpoint with three other men. (PSR ¶ 30.) During the robbery, one of the men pointed his gun at an infant. (PSR ¶ 31.) The robbers took approximately $400 from behind the counter and fled in a van. (PSR ¶¶ 33-35.) NYPD officers stopped the van and apprehended the four men. (PSR ¶¶ 37-40.) Moore attempted to run away but was caught by the officers, who discovered a nine millimeter semiautomatic pistol in his waistband. (PSR ¶ 43.)

Moore was charged for this criminal activity in two separate indictments. First, on October 14, 2010, Moore was charged in Counts One, Two, Three, and Six of a seven-count indictment. (10-cr-954 ECF No. 13.) Count One charged Moore with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951. Count Two charged Moore with Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951-52. Count Three charged Moore with possession of a firearm in connection with the robbery charged in Count One, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), (2). Count Six charged Moore with possession of a firearm after having been convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1). Second, on October 18, 2010, Moore was charged in Count One of a two-count indictment with possession of a firearm after having been convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1). (10-cr-971 ECF No. 5.)

Moore, then represented by Charles S. Hochbaum, pled guilty to Counts One, Two, and Six of the first indictment and Count One of the second indictment on October 21, 2011, pursuant to a written plea agreement with the Government (the "Plea Agreement"). (10-cr-954 ECF No. 119 ("Gov't Opp. Br.") ex. A.) The Plea Agreement stipulated to an offense level of 26 and a corresponding U.S. Sentencing Guidelines (the "guidelines") range of 78 to 97 months' imprisonment. (Id. ex. A at 4-5.) The parties agreed to seek neither an upward nor a downward departure from the stipulated guidelines range, and not to "suggest that the Probation Office consider a sentence outside of the Stipulated Guidelines Range, or suggest that the Court sua sponte consider a sentence outside of the Stipulated Guidelines Range." (Id. at 5.) They also acknowledged that the agreement did not limit the parties' rights to present to the Probation Office or the Court any facts relevant to sentencing and that the Court was not bound by the Plea Agreement in its determination of the sentence. (Id.)

During his plea hearing before Magistrate Judge Henry B. Pitman on October 21, 2011, Moore specifically acknowledged, among other things:

1. That he was satisfied with Hochbaum's representation and advice (10-cr-954 ECF No. 43 at 8:16-19);

2. That he had not been subjected to any threats or force in order to make him plead guilty (id. at 3:25-4:1-4);

3. That he signed the Plea Agreement (id. at 4:9-11);

4. That, before signing the Plea Agreement, he reviewed it with counsel (id. at 4:15-17);

5. That he understood the charges against him, which Magistrate Judge Pitman reviewed in open court (id. at 8:24-14:16);

6. That after the Guidelines range had been determined, the Court had the authority to depart from the Guidelines and to impose a sentence that was either more severe or less severe than the sentence called for by the guidelines (id. at 16:12-18);

7. That he has a right not to plead guilty and to go to trial, at which he would have certain constitutional rights, including the right to have a jury determine whether he was guilty beyond a reasonable doubt, the right to an attorney, the right to cross-examine and subpoena witnesses, and the right against self-incrimination (id. at 19:16-20:11);

8. That he was waiving his right to challenge his sentence if it fell within or below the stipulated guidelines range in the ...


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