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Moseman v. United States

United States District Court, N.D. Alabama, Eastern Division

November 28, 2018

CHARLES ANTHONY MOSEMAN, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is 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 denied.[1]

         II. Background

         In 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).

         A 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, 2016.

         Moseman 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.

         This is Moseman's first motion filed under 28 U.S.C. § 2255, and it is timely. Moseman remains in custody.

         III. Discussion

         In 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 citations omitted).

         Moseman 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.

         A. 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 proceeding

          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.

         Moseman 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 ...

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