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Moore v. United States

United States District Court, N.D. Iowa, Cedar Rapids Division

November 8, 2019

JAMES ERIC MOORE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LINDA R. READE, JUDGE UNITED STATES DISTRICT COURT

         I. INTRODUCTION ........................................ 1

         II. RELEVANT PROCEDURAL AND FACTUAL HISTORY .............. 2

         III. LEGAL STANDARDS ..................................... 8

         A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 ...... 8

         B. Standards Applicable to Sixth Amendment .................... 10

         IV. ANALYSIS ............................................ 11

         V. OTHER MOTIONS ...................................... 13

         VI. CERTIFICATE OF APPEALABILITY .......................... 13

         VII. CONCLUSION ......................................... 14

         I. INTRODUCTION

         The matters before the court are Petitioner James Eric Moore's (“the movant”) pro se “Motion to Vacate or Set Aside Revocation Sentence pursuant to 28 U.S.C. [§] 2255”[1] (“Motion”) (docket no. 1), pro se Motion for Expedited Hearing (docket no. 3), pro se “Motion to Amend 28 U.S.C. [§] 2255 Petition” (“Motion to Amend”) (docket no. 4) and pro se Motion to Stay Supervised Release (“Motion to Stay”) (docket no. 7).

         II. RELEVANT PROCEDURAL AND FACTUAL HISTORY

         On December 17, 2004, the grand jury returned a single-count Indictment (criminal docket no. 1) against the movant, charging him with possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851 (Count I). On February 28, 2005, a jury returned a verdict of guilty on Count I of the Indictment. See February 28, 2005 Jury Verdict (docket no. 24). On November 17, 2005, the court held a sentencing hearing and sentenced the movant to 188 months imprisonment and 6 years supervised release.[2] See November 17, 2005 Minute Entry (criminal docket no. 43), Judgment (criminal docket no. 44).

         On November 23, 2005, the movant timely filed a notice of appeal. See Notice of Appeal (criminal docket no. 45). On December 13, 2006, the Eighth Circuit Court of Appeals filed an opinion affirming the Judgment entered in the instant case and the Revocation Judgment entered in case no. 99-CR-28-LRR. See December 13, 2006 Opinion (criminal docket no. 60). On January 7, 2008, the United States Supreme Court issued a Writ of Certiorari vacating the judgments and remanding to the Eighth Circuit for further consideration. See Writ of Certiorari (criminal docket no. 69).

         On March 6, 2008, on remand from the Supreme Court, the Eighth Circuit filed an opinion affirming the Judgment entered in the instant case and the Revocation Judgment entered in case no. 99-CR-28-LRR. See March 6, 2008 Opinion (criminal docket no. 73). On October 14, 2008, the Supreme Court issued a Writ of Certiorari reversing the Eighth Circuit's March 6, 2008 opinion and remanding for further proceedings. See criminal docket no. 78-3. On November 24, 2008, the Eighth Circuit entered a Judgment (criminal docket no. 79) reversing the Judgment in the instant case and remanding for resentencing, and affirming the Revocation Judgment entered in case no. 99-CR-28-LRR. See Eighth Circuit Judgment (criminal docket no. 79).

         On September 22, 2009, the court held a resentencing hearing and sentenced the movant to 130 months' imprisonment, to run consecutively to the 24-month term of imprisonment in case no. 99-CR-28-LRR.[3] See September 22, 2009 Minute Entry (criminal docket no. 108); Amended Judgment (criminal docket no. 109). The court also imposed a 6-year term of supervised release. See id. On October 1, 2009, the movant timely filed a notice of appeal. See Notice of Appeal (criminal docket no. 111). On November 1, 2010, the Eighth Circuit filed an opinion affirming the Amended Judgment in the instant case. See November 1, 2010 Eighth Circuit Opinion (criminal docket no. 121). On January 24, 2011, the Supreme Court denied the movant's petition for a writ of certiorari. See criminal docket no. 128.

         On March 7, 2011, the movant filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (docket no. 1 in case no. 11-CV-26-LRR). On November 7, 2013, the court entered an order denying the movant's § 2255 motion. See November 7, 2013 Order (docket no. 18 in case no. 11-CV-26-LRR). On June 11, 2014, the Eighth Circuit denied the movant's application for a certificate of appealability and dismissed the movant's appeal. See Eighth Circuit Judgment (docket no. 30 in case no. 11-CV-26-LRR). On October 6, 2014, the Supreme Court denied the movant's petition for a writ of certiorari. See docket no. 33 in case no. 11-CV-26-LRR.

         On November 21, 2014, the movant filed a pro se motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2) (criminal docket no. 132). On December 9, 2014, the court entered an order granting a reduction of sentence. See December 9, 2014 Order (criminal docket no. 133). The movant's new sentence of 110 months' imprisonment applied to Count I of the Indictment. See id. at 4. Except for the sentence reduction on Count I, all of the provisions of the September 22, 2009 Amended Judgment remained in effect. See id.

         On September 2, 2016, a Petition to Revoke Supervision and Order for Summons (criminal docket no. 136) was filed against the movant. On October 4, 2016, the court held a revocation hearing, revoked the movant's supervised release and sentenced the movant to 7 months' imprisonment and a 4-year term of supervised release. See October 4, 2016 Minute Entry (criminal docket ...


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