United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
a motion to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255, filed by Petitioner Charles Anthony
Moseman (“Moseman”) on March 5, 2018, as well as
a brief in support. (Docs. 1 & 2.) Moseman challenges the
120-month sentence of imprisonment imposed after he pleaded
guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The Government has
filed a response in opposition to Moseman's motion (doc.
7), and Moseman has replied (doc. 8). For the following
reasons, the § 2255 motion is due to be
accordance with a plea agreement, on March 31, 2016, Moseman
pleaded guilty to one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). The
plea agreement contained the provision that the Government
would recommend that Moseman be incarcerated for a term
consistent with the low end of the advisory U.S. Sentencing
Guidelines range. (Crim. Doc. 11 at 5).
Presentence Investigation Report (“PSR”) was
prepared. (Crim. doc. 16.) The PSR guideline range for
imprisonment was 120 to 150 months, but because the statutory
maximum sentence was 120 months, 120 months' imprisonment
became the guideline range. (Id. at 23).
Moseman's counsel filed objections to the PSR,
challenging a two-level firearm enhancement and a four-level
possession of a firearm in connection with another felony
enhancement. (Crim. Doc. 13). At the sentencing hearing, this
Court heard the objections by Moseman's counsel but
overruled Moseman's objections and sentenced him to 120
months of imprisonment. Judgment was entered on September 9,
appealed the sentence to the Eleventh Circuit Court of
Appeals. The United States filed a motion to dismiss the
appeal pursuant to the appeal waiver in Moseman's plea
agreement. On March 30, 2017, the Eleventh Circuit granted
the United States's motion to dismiss the appeal pursuant
to the appeal waiver.
Moseman's first motion filed under 28 U.S.C. § 2255,
and it is timely. Moseman remains in custody.
litigation stemming from a § 2255 motion,
“‘[a] hearing is not required on patently
frivolous claims or those which are based upon unsupported
generalizations. Nor is a hearing required where the . . .
[movant's] allegations are affirmatively contradicted by
the record.'” Holmes v. United States, 876
F.2d 1545, 1553 (11th Cir. 1989) (quoting Guerra v.
United States, 588 F.2d 519, 520-21 (5th Cir. 1979)).
However, it is appropriate for the Court to conduct an
evidentiary hearing if, “‘accept[ing] all of the
. . . [movant's] alleged facts as true, '” the
movant has “‘allege[d] facts which, if proven,
would entitle him to relief.'” Diaz v. United
States, 930 F.2d 832, 834 (11th Cir. 1991) (internal
attacks his sentence with several claims. First, he argues
that the sentence appeal waiver in his plea agreement was not
knowing and voluntary because this Court failed to adequately
explain the waiver to him. Second, he argues that his defense
counsel was constitutionally ineffective for failing to
respond to the United States's motion to dismiss his
appeal and the Eleventh Circuit's subsequent dismissal.
Last, he argues that the United States breached his plea
agreement and that his counsel was ineffective for allowing
the United States to breach the plea agreement.
The claim that Moseman's appeal waiver in his plea
agreement was not knowing and voluntary because the Court
failed to discuss the appeal waiver at his change of plea
Moseman claims that this Court did not specifically discuss
with him the appeal waiver in his plea agreement at his
change of plea hearing. In support, Moseman cites United
States v. Bushert, 997 F.2d 1343 (11th Cir. 1993),
arguing that the Court, as in that case, generalized the plea
and invoked confusion on whether an appeal waiver existed.
Because Moseman's first claim is wholly contradicted by
the record, it fails.
expressly waived the right to appeal his sentence as part of
his plea agreement. (See Crim. Doc. 11 at 6-7). The
portion of the written plea agreement addressing the waiver
reads as follows:
In consideration of the recommended disposition of this case,
I, CHARLES ANTHONY MOSEMAN, hereby waive and give up my right
to appeal my conviction and/or sentence in this case, as well
as any fines, restitution, and forfeiture orders that the
Court might impose. Further, I waive and give up the right to
challenge my conviction and/or sentence, any fines,
restitution, forfeiture orders imposed or the manner in which
my conviction and/or sentence, any fines, restitution, and
forfeiture orders were determined in any post-conviction
proceeding, including, but not limited to, a motion brought
under 28 U.S.C. § 2255.
The defendant reserves the right to contest in an appeal or
post-conviction proceeding any or all of the following:
(a) Any sentence imposed in excess of the applicable
statutory maximum sentence(s);
(b) Any sentence imposed in excess of the guideline
sentencing range determined by the court at the time ...