Opinion
97 CV 1267 (RR)
September 24, 2002
Paul Moore, Reg. No. 30156-053, White Deer, PA, Petitioner Pro Se
The Honorable Roslynn Mauskopf, United States Attorney, Eastern District of New York, Jo Ann Navickas, Assistant U.S. Attorney, Brookly, NY, Attorney for Respondent
Memorandum and ORDER
Paul Moore is presently incarcerated serving a life term of incarceration for various crimes, including murder, committed as a member of the Vassell Enterprise, a group of individuals who dealt massive quantities of heroin, cocaine, and cocaine base in New York and Texas.See United States v. Vassell, et al., No. 90 CR 1063 (RR). Proceeding pro se, Moore now petitions this court to vacate his conviction or correct his sentence pursuant to 28 U.S.C. § 2255. The history of this petition is a lengthy one.
On March 6, 1997, over four years after his conviction was affirmed on direct appeal, see United States v. Vassell, 970 F.2d 1162 (2d Cir. 1992), Moore first moved this court for § 2255 relief on the grounds that (1) counsel was constitutionally ineffective in that he (a) failed to investigate a possible alibi defense, (b) refused to allow petitioner to testify in his own defense, (c) failed to request a specific verdict as to drug type, and (d) failed to raise an appellate challenge to this court's reliance on U.S.S.G. § 2A1.1 (guideline applicable to first degree murder) in calculating his sentence; and (2) petitioner had been the victim of vindictive prosecution. Relying on the Second Circuit's ruling in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), which suggested that prisoners such as Moore, who had had several years before the enactment of AEDPA to consider filing collateral challenges to convictions, were not automatically entitled to a one-year filing grace period from the statute's effective date, this court dismissed Moors petition as untimely. In the alternative, the court also rejected Moore's claims as without merit, reserving only on his charge that counsel had prevented him from testifying in his own defense, which the court found insufficiently developed to permit a ruling on the merits. See Moore v. United States, No. 97 CV 1267 (RR), 1998 WL 1967975 (E.D.N.Y., Mar. 31, 1998).
This 1998 dismissal was not challenged on direct appeal. Instead, it was first considered by the Court of Appeals three years later when Moore moved for leave to file a second § 2255 petition based on the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court of Appeals denied the motion as unnecessary, finding that Moore was not presenting a `second or successive' petition since this court's March 1998 dismissal of his original filing was erroneous in light of the Circuit's June 1998 decision in Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998) (holding that petitioners whose convictions became final before enactment of AEDPA were entitled to an automatic one-year grace period to file for § 2255 relief, and that language in Peterson v. Demskie to the contrary was dictum). See Moore v. United States, No. 01-3737 (2d Cir. Jul. 25, 2001). Accordingly, the Circuit transferred Moore's case back to this court directing it to review the merits of petitioner's 1997 claims and to afford him the opportunity to amend his original petition to add an Apprendi claim. Id.
Upon receipt of the Circuit mandate, this court accepted Moore'sApprendi-based amendment to his petition. It further invited Moore to submit any additional arguments as to why the court should not adhere to its 1998 ruling finding most of his original claims without merit. Moore did not respond to this order, even when his time to submit papers was extended sua sponte by the court. Neither did he file papers in response to the government's February 2002 opposition to his petition. More recently, Moore failed to file any reply to trial counsel's sworn affidavit refuting petitioner's claim that he was not permitted to testify in his own defense.
Moore's continued interest in pursuing his petition was, however, confirmed in a submission filed on his behalf by co-defendant Donald Vassell. See Response dated Dec. 19, 2001.
Having carefully reviewed all the papers filed by the parties from 1997 to the present. the court hereby denies Moors original 1997 claims as without merit. It denies his Apprendi claim as procedurally barred.
Focusing first on Moore's 1997 claims that counsel was constitutionally ineffective for failing to investigate an alibi defense, move for a special verdict, or appeal this court's guideline calculations. and that petitioner was the victim of vindictive prosecution, the court hereby adopts by reference the analysis set forth in its memorandum and order of March 31, 1998.
Turning to Moore's claim that counsel violated his right to testify. the court finds this "highly self-serving and improbable" assertion to be persuasively refuted by able counsel's sworn affidavit of July 9, 2002.See Chang v. United States, 250 F.3d 79. 86 (2d Cir. 2001) (holding that in appropriate circumstances court could resolve such a collateral challenge by reviewing counsel's affidavit). Therein, counsel unequivocally states that "both before and during the trial" he explained to Moore his right to testify. making plain that this was "ultimately his decision." See Murphy Aff. at ¶¶ 3-4. Counsel reports that, in fact. Moore was "at all times . . . reluctant to testify," and that "[b]ecause of that reluctance," he crafted a defense that "could be placed before the jury without the need" for petitioner's testimony. Id. at ¶ 4. Counsel candidly states that he did not think it was in Moore's interest to testify. Id. Although he does not particularize his concerns, this court is well aware of the critical facts.
It was the government's theory at trial that in connection with his membership in the Vassell Enterprise, Moore dealt drugs, moved drug proceeds, shot and killed a rival drug dealer, and shot and wounded an enterprise member who failed to obey orders. If he testified, Moore would not only have had to refute various eye-witness accounts of his involvement in or admission to certain of the charged crimes, he would have had to explain his role in documented wire transfers of large sums of cash from Texas — where the Enterprise ran a profitable crack operation — to confessed enterprise confederates in New York. Further, any "innocent" explanations would have been challenged by evidence that law enforcement authorities had on several occasions found Moore in possession of drugs, firearms, or large sums of unexplained cash.
As the court noted in its March 1998 memorandum and order, Moore and his girlfriend Winsome Vassell, sister of Enterprise leader Eric Vassell, had been stopped by DEA officials at the Dallas/Fort Worth airport on January 27, 1989, at which time the two gave inconsistent responses regarding their possession of over $17,000 in cash. The two had also been arrested in New York in October 1985 in possession of six firearms and 292 vials of crack cocaine. In September 1989, five months after he shot Harold Spence to death in Dallas, Moore was arrested in Brooklyn in possession of a loaded firearm.
In light of these facts, it is easy to understand both counsel's opinion that Moore should not testify at trial and Moore's decision "not [to] argue" with that view. Id. at ¶ 7. In sum, the court fully credits counsel's statement that Moore never "indicate[d] to me that he wanted to testify in his own defense. To the contrary, he indicated that he did not wish to testify." Id. It concludes that no useful purpose would be served by ordering a further hearing on this point. See Chang v. United States, 250 F.3d at 86 (affirming district court's rejection of similar claim without hearing live testimony). Moore's claim that counsel violated his constitutional right to testify is hereby denied as without merit.
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000). Moore also asks this court to vacate his conviction or at least reduce his sentence in light of the prosecution's failure to plead or prove beyond a reasonable doubt a drug quantity sufficient to trigger the lifetime maximum sentence provided in 21 U.S.C. § 841(b)(1)(A).
In United States v. Thomas, 274 F.3d 655, 673 (2d Cir. 2001) (en banc), a case heard on direct appeal, the Second Circuit plainly ruled that "after Apprendi, drug type and quantity are elements of the offense under 21 U.S.C. § 841 that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt." The government nevertheless submits that Moore's Apprendi claim must be rejected because it seeks collateral application of a new rule of criminal procedure, which is generally proscribed by Teague v. Lane, 489 U.S. 288 (1989). Although this issue is presently under advisement in the Second Circuit, see United States v Luciano (Parise), No. 01-1198 (2d Cir. argued Jan. 28, 2002). four other Circuit Courts have ruled thatApprendi does not apply retroactively to collateral challenges to convictions, see McCoy v. United States, 266 F.3d 1245, 1254-58 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001); United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir. 2001);Jones v. Smith, 231 F.3d 1227, 1236-38 (9th Cir. 2000). Similarly, numerous district court judges in this circuit, including this one, have so ruled. See Herrera v. United States, 169 F. Supp.2d 92, 97-100 (E.D.N.Y. 2001) (RR); Vega v. United States, No. 01 Civ. 9379 (JFK), 2002 WL 1788015, at *2-4 (S.D.N.Y. Aug. 2, 2002); Parrado v. United States, 207 F. Supp.2d 230, 232-34 (S.D.N.Y. 2002) (PKL); Vargas v. United States, 207 F. Supp.2d 304, 305-08 (S.D.N.Y. 2002) (VM); Quinones v. United States, No. 5:01-CV-0974 (HGM), 2002 WL 1313204, at *2 (N.D.N.Y. June 14, 2002); Morales v. United States, No. 01 CIV 7194 (JFK). 2002 WE 732097, at * 3-4 (S.D.N.Y. Apr. 25, 2002); Garcia v. United States, No. 01 Civ. 7188 (SAS), 2002 WL 42888, at *1-3, (S.D.N.Y. Jan. 11. 2002);Deleon v. United States, No. 01-CV-0027E(SC) (JTE), 2002 WL 450057, at *3 (W.D.N.Y. Jan. 9, 2002). Because the rationale of these cases is persuasive, the court denies Moore's Apprendi challenge to his conviction and sentence as procedurally barred.
Even if the Apprendi rule were retroactively applicable to Moore's case. it would not afford him the relief demanded. Moore was sentenced to concurrent maximum sentences on five counts of conviction. At the time of sentence, the court found that two of those counts, for racketeering and conspiracy to traffic in narcotics, carried lifetime maximums. Assuming that Apprendi rendered this conclusion erroneous with respect to the narcotics conspiracy count, Moore would not be entitled to have his conviction on that count vacated. Rather, since 21 U.S.C. § 841(b)(1)(C) and 846 prohibit conspiracies to traffic in any quantity of drugs, petitioner would only be entitled to have his sentence reduced on that count to bring it within the twenty-year statutory maximum. See United States v. Thomas, 274 F.3d at 665-666, 672-73 (holding that prosecution's failure to plead drug quantity in indictment only entitled convicted defendant to resentencing on lesser-included charge of trafficking in unspecified quantity of drugs).
Having heard the evidence at trial, this court has little doubt that the prosecution could have pleaded and proved beyond a reasonable doubt that the Vassell Enterprise dealt in over one kilogram of heroin, over five kilograms of cocaine, and over 50 grams of cocaine base. Enterprise members testified to how various apartment buildings in New York had been turned into "drug supermarkets" with sales occurring twenty-four hours a day, seven days per week, over a period of years. Enterprise activities in Texas were similarly well organized, as reflected in the regular weekly transmittal of tens of thousands of dollars in cash profits to the Vassell managers in New York. In fact, in a presentence statement made in an effort to benefit from a demonstration of acceptance of responsibility for his conduct, Moore admitted that from 1985 until the time of his arrest, he and his girlfriend were supported exclusively by drug profits from the Vassell Enterprise. See Presentence Report at ¶ 68. Moore further acknowledged personally selling at least three "big 8s" of crack while working for the enterprise in Dallas. Id. at ¶ 71. Since a "big 8" equals 1/8 kilogram of crack, or 375 grams of cocaine base, Moore dealt in well over the amount necessary to trigger the lifetime maximum sentence provided in 21 U.S.C. § 841(b)(1)(A).
Moore would not, however, be entitled to any reduction in his concurrent life sentence for racketeering. While drug trafficking was charged as a predicate act of racketeering, so was murder, and the jury's express finding that Moore was guilty beyond a reasonable doubt of intentional murder by itself exposed him to a lifetime maximum sentence under 18 U.S.C. § 1963(a). In fact, the sentencing guideline offense level for that murder, 43, mandated a life sentence. See U.S.S.G. § 2A.1.1 (applicable to intentional murder). In sum, since any correction of Moore's drug sentence would not reduce his total term of lifetime imprisonment, no § 2255 relief is warranted in this case.
Conclusion
For the reasons stated in this memorandum, as well as the one filed on March 31, 1998, this court denies Moore's petition to vacate his conviction or correct his sentence, finding his claims to be either without merit or procedurally barred.