Moss v. United States

1

KELVIN GERARD MOSS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 3:16-cv-00210-FDW, 3:08-cr-00097-FDW

United States District Court, W.D. North Carolina, Charlotte Division

April 22, 2024

MEMORANDUM OF DECISION AND ORDER

Frank D. Whitney, United States District Judge.

THIS MATTER is before the Court on the Fourth Circuit Court of Appeals' grant of a joint motion for remand of this case for further proceedings [CV Doc. 20]^[1] and the Government's motion for leave to file a supplemental response to Petitioner's motion to vacate [CV Doc. 23]. The Fourth Circuit vacated this Court's Order denying Petitioner's motion to vacate under 28 U.S.C. § 2255 and instructed the Court that it “must decide whether any defense to Moss's petition is waivable.” [CV Doc. 20 at 1].

I. BACKGROUND

On the morning of April 15, 2008, Petitioner Kelvin Gerard Moss (“Petitioner”) was serving a term at the McLeod Addictive Disease Center in Charlotte, North Carolina. [CR Doc. 81 at ¶ 10: Presentence Investigation Report (PSR)]. The McLeod Center gave Petitioner and another resident, Shonn McCain, passes to search for jobs. [Id.]. Rather than search for jobs, Petitioner and McCain robbed the Mooresville Savings Bank in Huntersville North Carolina. [Id. at ¶ 9].

Petitioner brandished a pump shotgun with a pistol-grip handle and pointed the gun at bank employees. McCain ordered a bank teller to accompany him into the vault and unlock two safes. He placed cash from both safes into a duffel bag while Petitioner ordered the other employees to lie on the floor. Before leaving, Petitioner ordered all the employees into the vault, and McCain took a cell phone from the bank manager. [Id.]. Petitioner and McCain closed the vault door and fled in a white Cadillac. [Id. at ¶¶ 9-10]. Police caught up with them and pursued the Cadillac. [Id. at ¶ 10]. McCain drove the car across the median into a lane of oncoming traffic before crashing into another car. [Id.]. Petitioner and McCain then fled the vehicle on foot. Police found Petitioner's shotgun in the car, along with the bank manager's cell phone and the bag of stolen cash. Petitioner did not return to the McLeod Center. Police located him two days later. [Id. at ¶¶ 10-11].

On September 24, 2008, Petitioner was charged in a First Superseding Bill of Indictment with one count of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 2 (Count One); one count of using and carrying a firearm brandished during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) (Count Two); one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Three); and one count of escape from custody in violation of 18 U.S.C. §§ 751(a) and 4082 (Count Four). [CR Doc. 34].

Before trial, the Government filed an Information pursuant to 21 U.S.C. § 851 and 18 U.S.C. § 3559(c)(4) setting forth Petitioner's prior felony convictions.^[2] [CR Doc. 59: § 851 Information]. The Information identified the following qualifying predicate offenses: Petitioner's 1992 North Carolina conviction for breaking and entering a dwelling, his 1994 North Carolina conviction for second-degree murder, and his 1995 federal conviction for drug trafficking conspiracy. [Id.]. On January 14, 2009, the jury found Petitioner guilty on all four counts. [CR Doc. 65: Jury Verdict].

Before sentencing, a probation officer submitted a PSR. [CR Doc. 81]. Before considering enhancements under the Armed Career Criminal Act (ACCA)^[3] or the career offender guideline,^[4]the probation officer recommended a combined adjusted offense level of 24 for Counts One, Three, and Four. [Id. at ¶ 45]. The probation officer, however, found that Petitioner had four qualifying prior convictions, including a conviction for assault with the deadly weapon and the same breaking and entering, second-degree murder, and drug trafficking conspiracy convictions, that triggered an enhancement under the ACCA, resulting in an offense level of 37. [Id. at ¶ 46 (citing U.S.S.G. §4B1.4(b)(2))]. The probation officer also found, based on the same second-degree murder and drug convictions, that Petitioner was a career offender under U.S.S.G. §4B1.1, also resulting in an offense level of 37. [Id. at ¶ 47]. The recommended total offense level for Counts One, Three, and Four was, therefore, 37, and Petitioner's Criminal History Category was VI. [Id. at ¶¶ 49, 67]. After adding the mandatory minimum consecutive penalty required by 18 U.S.C. § 924(c) for Count Two to the minimum and maximum of the otherwise applicable guideline range of 360 months to life, the resulting guideline range was 444 months to life. [Id. at ¶ 51]. The probation officer concluded that, under the three-strikes statute, 18 U.S.C. § 3559(c), there were mandatory life terms for Counts One and Three and a mandatory consecutive life term for Count Two. [Id. at ¶ 90]. Based on these statutory minimums, the recommended guideline range was life in prison.^[5][Id. at ¶ 91].

At sentencing, the Court concluded, contrary to the PSR, that a violation of § 922(g) was not a “serious violent felony” under 18 U.S.C. § 3559(c)(2)(F)(i)^[6] and, as such, held that Count Three did not require a life sentence, but rather a term of 15 years to life under the ACCA. [CR Doc. 104 at 71-73: Sentencing Tr.]. The Court further concluded that, because the sentences for Counts One and Two had to be life and consecutive life, respectively, under the three-strikes statute, the guidelines sentence also had to be life plus consecutive life.^[7] [Id. at 76]. The Court considered all the § 3553(a) sentencing factors and explained to Plaintiff as follows:

Your offense in this case was highly reckless and dangerous. Not only did you commit a violent bank robbery where a firearm was present in the bank robbery, you also were involved in a road chase exceeding - involving excessive speeds, going down two different interstates and side roads, ultimately leading to an accident where you were going up the wrong direction on an exit ramp.

The number of - we are all very lucky that you are alive today and that others who were involved - that were involved in your accident are alive today. You could have killed yourself. You could have killed many others.

Your criminal history is one that is unacceptable to the Court. Second degree murder charge speaks for itself. But after you committed the second degree murder charge, then you served time in federal prison for drug trafficking. Through those counts of conviction, you had an opportunity for training and rehabilitation, both in the state and federal systems, and you chose not to follow the rehabilitative route but you chose to continue on a life of crime. So the Court's concerned about deterring you from future criminal conduct. Obviously, Congress is concerned about deterring you from future criminal conduct.

The Court believes the sentence it's going to impose reflects the seriousness of this offense. It's just punishment for the reckless criminal conduct you've committed, particularly based on your history and characteristics, your lengthy life of crime.

[CR Doc. 104 at 82-83]. The Court sentenced Petitioner to terms of life imprisonment on Counts One and Three and 60 months on Count Four, all to be served concurrently, and a consecutive term of life on Count Two. [Id. at 84; CR Doc. 92: Judgment]. Petitioner appealed, challenging among other things the finding that he was subject to mandatory life sentences under 18 U.S.C. § 3559(c)(1) and the reasonableness of his sentence. United States v. Moss, 445 Fed. App'x 632, 635 (4th Cir. 2011). The Fourth Circuit affirmed. Id. at 636.

On January 7, 2013, Petitioner filed a pro se motion to vacate under 28 U.S.C. § 2255 claiming he had received ineffective assistance of counsel. [CR Doc. 110]. The Court denied and dismissed Petitioner's motion on the merits. [CR Doc. 111].

On May 3, 2016, after having received authorization from the Court of Appeals for the Fourth Circuit to file a second or successive motion to vacate under § 2255, Petitioner, through counsel, moved to vacate his criminal judgment to correct his sentence.^[8] [CR Docs. 113, 113-1; CV Docs. 1, 2]. Petitioner argued that, in light of Johnson, his three life sentences “are illegal sentences that violate due process of law” because they rely on unconstitutionally vague residual clauses. [CV Doc. 1 at 1-2]. That is, Petitioner sought to extrapolate the holding in Johnson to similarly worded residual clauses: “The § 3559(c) residual clause suffers from the same infirmities that caused the Supreme Court to strike down the ACCA residual clause as unconstitutionally vague.” [Id. at 7]. And because one of Petitioner's two previous violent felony predicates, North Carolina breaking and entering, only qualified as such under § 3559(c)'s residual clause, two of Petitioner's life sentences violate due process. [Id. at 10-11]. Petitioner asked the Court to vacate his sentences and resentence him without application of the “unconstitutionally vague three-strikes, ACCA, and Guidelines career-offender enhancements.” [Id. at 2]. After multiple stays and the benefit of the Supreme Court's decision in Beckles v. United States, 580 U.S. 256, 137 S.Ct. 886 (2017), the Government responded to Petitioner's motion. [9/19/2016 & 5/18/2017 Text Orders; Doc. 10].

The Government argued in part that the Court must dismiss Petitioner's § 3559(c) challenge because he could not meet the requirements of 28 U.S.C. § 2255(h)(2). [CV Doc. 10 at 10]. In this regard, the Government argued that Petitioner had not shown that the Supreme Court had recognized or made retroactive on collateral review a “rule against increasing a defendant's sentence...