Opinion
97 CV 1267 (RR)
August 29, 2001
PAUL MOORE, Petitioner Pro Se.
THE HONORABLE ALAN VINEGRAD UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK, Attorney for Respondent.
ORDER
This matter is before the court on the mandate of the United States Court of Appeals for the Second Circuit dated July 25, 2001. Moore v. United States, No. 01-3737 (2d Cir. July 25, 2001). Paul Moore was convicted before this court in 1992 for various crimes relating to his participation in a violent racketeering ring known as the Vassell Enterprise. See United States v. Vassell, CR 90-1063. His conviction was affirmed by the Court of Appeals that same year. See United States v. Vassell, 970 F.2d 1162 (1992). In 1997, he moved pursuant to 28 U.S.C. § 2255 for an order vacating his conviction. This court dismissed the motion in a lengthy written memorandum dated March 31, 1998, a copy of which is attached hereto, on the grounds that (1) the motion was untimely in light of then applicable Second Circuit law, see Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997); and (2) the claims raised were without merit. See Moore v. United States, 97 CV 1267 (RR) (E.D.N.Y. Mar. 31, 1998). Moore did not appeal this dismissal. Instead, in 2001, he moved in the Court of Appeals for leave to file a successive petition. See 28 U.S.C. § 2244. The Circuit ruled that no leave was required since this court's 1998 dismissal of the 1997 motion was erroneous in light of Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998), a case decided three months after the dismissal, which rejected the timeliness standard established in Peterson v. Demskie. Accordingly, Moore's 1997 motion must be reinstated by this court and Moore is to submit any further claims as a motion to amend his original petition.
In conformity with the Court of Appeals' mandate, this court directs the Clerk of the Court to reopen 97 CV 1267 and to retrieve the closed file from storage.
A review of the court's 1998 memorandum indicates that Moore's 1997 petition challenged his conviction on the grounds that (1) trial counsel was constitutionally ineffective in (a) failing to investigate a possible alibi defense, (b) refusing to allow Moore to testify, and (c) failing to request a special verdict specifying which of three alleged drugs Moore conspired to traffic in; (2) appellate counsel was ineffective in failing to challenge this court's reliance on U.S.S.G. § 2A1.1 (first degree murder) in calculating his sentence; and (3) he was the victim of vindictive prosecution. In addition, on August 24, 2001, the court received Moore's undated motion to amend his petition, a copy of which is attached hereto, to add a claim, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), that he was denied due process because his indictment did not allege, nor did the jury expressly find, the quantity of drugs utilized in calculating his sentence.
The court hereby orders Moore to advise in writing on or before September 28, 2001 whether he thinks any other claims were raised in his 1997 petition other than those identified above. In that same submission Moore should advance any and all arguments in support of his 1997 claims mindful of this court's March 31, 1998 findings that the bulk of his claims lacked merit. Moore is ordered to serve a copy of his papers responding to this order on the United States Attorney.
The United States is requested to respond to the petition on or before October 29, 2001, providing copies of relevant transcripts of proceedings, as well as petitioner's and the United States Attorney's brief on appeal. Petitioner is granted until November 29, 2001, to file a reply, if any.
Service of a copy of this Order shall be made by the Clerk of this court, together with a copy of the petition, to the United States Attorney for the Eastern District of New York, One Pierrepont Plaza, Brooklyn, New York 11201, and by mailing a copy of this Order to the petitioner.
SO ORDERED.