United States District Court, S.D. Alabama, Southern Division
KRISTI K. DuBOSE, District Judge.
This action is before the Court on the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("the Petition") (Doc. 66) and supporting affidavit (Doc. 67-1) filed by Petitioner Richard Leon Moore ("Moore"), a federal prisoner proceeding pro se; the Government's Response in opposition (Doc. 74); and Moore's Reply (Doc. 75) and Supplemental Reply (Doc. 79) to the Response. Previously, the Court denied without an evidentiary hearing, all of Moore's claims but for his claim that his counsel was ineffective for failing to file an appeal (doc. 82).
By separate order, the issue was set for an evidentiary hearing (doc. 83). After several continuances, the evidentiary hearing was held on September 12, 2014. Moore, his counsel, Sidney M. Harrell, Jr., and Adam Overstreet, Assistant United States Attorney, were present. Moore's prior counsel testified at the hearing. Accordingly, upon consideration of the motion, response and replies and parties' respective arguments and the testimony presented at the evidentiary hearing, the Court finds that Moore's claim regarding counsel's alleged failure to file an appeal is DENIED.
I. Procedural History
On August 25, 2011, a Grand Jury of this district returned an indictment against Moore and a co-defendant. (Doc. 1) The indictment alleged eight counts against Moore. Count One alleged a violation of 21 U.S.C. § 846 - specifically, conspiracy to violate 21 U.S.C. § 841(a)(1) by possessing with intent to distribute a mixture and substance containing a detectable amount of cocaine ("crack cocaine"), "[b]eginning on or about November 1, 2010, and continuing until on or about the date of the return of th[e] indictment." Count One also charged that "[t]he quantity of crack cocaine involved in the conspiracy exceeded 28 grams[, ]" thus making Moore "subject to the penalty provisions of Title 21, United States Code, Section 841(b)(1)(B)." (Doc. 1 at 1-2) The remaining seven counts alleged various violations of § 841(a)(1) involving crack cocaine occurring at various times during the period of the alleged conspiracy.
At Moore's initial appearance and arraignment on September 14, 2011, Moore entered a plea of not guilty, and attorney W. Gregory Hughes ("Hughes"), a member of this district's CJA panel, was appointed to represent him. (Docs. 17-19) On October 7, 2011, Moore filed his notice of intent to plead guilty to Count One (Doc. 28), along with a Plea Agreement and Factual Resume (Docs. 29-30). On October 11, 2011, the Government filed an Enhancement Information pursuant to 21 U.S.C. § 851(a). (Doc. 34 [duplicate at Doc. 35]) On October 18, 2011, Moore, accompanied by counsel, pled guilty to Count One of the indictment. (Doc. 37)
On February 7, 2012, prior to sentencing, attorney Bruce Maddox ("Maddox") entered a notice of appearance on behalf of Moore. (Doc. 41) Hughes accordingly moved for leave to withdraw from further representation of Moore (Doc. 42), which was granted on February 10, 2012 (Doc. 43) The Probation Office entered a Presentence Investigation Report for Moore on April 11, 2012. (Docs. 55-58) On June 13, 2012, Moore entered his position regarding sentencing factors enumerated in the Presentence Investigation Report, stating: "[A]lthough he has objections to certain factual matters in the presentence report, none of those objections, if sustained, would alter either the Offense Level calculation or the Criminal History Category. He therefore does not object to the ultimate calculations of the Presentence Investigation Report." (Doc. 62)
On June 15, 2012, the Court sentenced Moore to 188 months imprisonment, followed by 6 years of supervised release. (Doc. 64) On June 19, 2012, Moore filed a Notice of Non-Appeal with the Court. (Doc. 63) No direct appeal was taken. On January 23, 2013, Moore then timely filed his Petition pursuant to 28 U.S.C. § 2255 (Doc. 66).
Moore asserted four claims for relief in his Petition: That his counsel failed to file a notice of appeal, despite his express request that an appeal be taken; that the Court lacks jurisdiction to enhance his sentence; that his guilty plea was "unknowing, involuntary and without the advice of competent counsel; and that he was denied his Sixth Amendment right to the effective assistance of counsel. By order entered March 21, 2014 (doc. 82), the Court denied all of Moore's claims but for his claim that counsel was ineffective for failing to file an appeal despite Moore's express request. That claim is now pending before the Court for resolution.
a. Applicable Legal Principles
1. Habeas Generally
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(a)-(b).
Habeas relief is an extraordinary remedy which "may not do service for a [direct] appeal." United States v. Frady, 456 U.S. 152, 165 (1982). A petitioner who has waived or exhausted his right to appeal is presumed to stand "fairly and finally convicted." Id. at 164. "[U]nless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited... [A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (citation and quotation omitted). See also Burke v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998) ("Nonconstitutional claims can be raised on collateral review only when the alleged error constitutes a fundamental defect which inherently results in the miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.") (citations and internal quotations ...