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Moss v. Fisher

United States District Court, S.D. Mississippi, Northern Division

May 27, 2014

JERMAINE LENARD MOSS, SR., # XXXXX-XXX Petitioner,
v.
S.P. FISHER, Respondent.

MEMORANDUM OPINION AND ORDER OF DISMISSAL

CARLTON W. REEVES, District Judge.

This matter is before the Court sua sponte. Pro se Petitioner Jermaine Lenard Moss, Sr., filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [1, 6]. He is presently incarcerated at the Federal Correctional Complex in Yazoo City, Mississippi and attacks his sentences for conspiracies to possess with intent to distribute crack cocaine, use and carry firearms during and in relation to drug trafficking, and for selling crack. He also attacks his conviction on the gun charge. The Court has considered and liberally construed the pleadings. As set forth below, this case is dismissed.

BACKGROUND

On April 17, 2014, Petitioner filed the instant habeas petition challenging his drug sentences and firearm conviction and sentence handed down from the Middle District of Florida. In June of 2007, he was convicted by a jury of Count 1 conspiracy to possess with the intent to distribute 50 grams or more of crack cocaine, Count 2 conspiracy to use and carry firearms during and in relation to drug trafficking, and Count 9 distributing five grams or more of crack. Petitioner was originally sentenced to concurrent terms of 324 months on each of the drug charges and 240 months on the gun charge. United States v. Moss, 290 F.Appx. 234, 237 (11th Cir. Aug. 4, 2008). The Eleventh Circuit Court of Appeals affirmed. Id. The Supreme Court denied certiorari. Moss v. United States, 555 U.S. 1061 (2008).

Moss then filed his first motion to vacate his sentence under 28 U.S.C. § 2255. Moss v. United States , No. 8:09cv2463, 2010 U.S. Dist. LEXIS 113230 at *4 (M.D. Fla. Oct. 15, 2010). On October 15, 2010, the district court denied the motion. Id. at *47-48. The Eleventh Circuit denied a certificate of appealability. Moss v. United States , No. 10-15759 (11th Cir. Apr. 8, 2011).

On March 28, 2012, the trial court reduced Moss's drug sentences to 240 months each, pursuant to a retroactive reduction in the crack sentencing guidelines. United States v. Moss, No. 8:06cr464 (M.D. Fla. Mar. 28, 2012).

On May 3, 2013, Moss filed a second § 2255 motion in the trial court. He argued that he was actually innocent of Count 9. Moss v. United States , No. 8:13cv1194 at 1 (M.D. Fla. May 6, 2013). The motion was denied, because Moss had not obtained permission to file a successive motion. Id. at 2. Moss filed his third motion pursuant on § 2255 on October 7, with the Eleventh Circuit. He argued that his drug sentences were based on a drug quantity not found by the jury, that he is actually innocent of the firearm charge, and the trial court erred in instructing the jury on this charge. In re: Moss, No. 13-14570 (11th Cir. Oct. 23, 2013). The appellate court denied him leave to proceed on the successive motion. Id. at 5.

DISCUSSION

Moss again claims that (1) his sentences were unlawfully based on drug quantities not found by the jury, (2) he is actually innocent of the firearm count, and (3) the jury was improperly instructed on the firearm count. In support of ground one, he cites Alleyne v. United States, 133 S.Ct. 2151 (2013). In support of ground two, he relies on McQuiggin v. Perkins, 133 S.Ct. 1924 (2013).

A petitioner may attack the manner in which his sentence is being executed in the district court with jurisdiction over his custodian, pursuant to § 2241. United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). By contrast, a motion filed pursuant to § 2255 "provides the primary means of collateral attack on a federal sentence." Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). The proper vehicle for challenging errors that "occurred at or prior to sentencing" is a motion pursuant to § 2255. Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990).

Moss's claims that he was improperly sentenced to 240 months on all charges and improperly convicted on the gun charge do not challenge the execution of his federal sentences but instead attacks the validity of his sentences. Since these alleged constitutional violations occurred at or prior to sentencing, they are not properly pursued in a § 2241 petition.

However, "[u]nder the savings clause of § 2255, if the petitioner can show that § 2255 provides him an inadequate or ineffective remedy, he may proceed by way of § 2241." Wesson v. U.S. Penitentiary, 305 F.3d 343, 347 (5th Cir. 2002). To meet the stringent "inadequate or ineffective" requirement, the Fifth Circuit Court of Appeals holds:

the savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion.

Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Moss bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective to test ...


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