Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moss v. Meeks

United States District Court, D. South Carolina

April 18, 2016

Dwight E. Moss, #XXXXX-XXX, Petitioner,
v.
B.J. Meeks, Warden, Respondent.

          REPORT AND RECOMMENDATION

          JACQUELYN D. AUSTIN, Magistrate Judge.

         Dwight E. Moss ("Petitioner"), proceeding pro se, brings this habeas corpus action pursuant to 28 U.S.C. § 2241. Petitioner is a federal prisoner incarcerated at FCI Williamsburg in Salters, South Carolina. He contends that a jury convicted him of several counts including one count of felon in possession of a firearm; however, because he is actually and factually innocent of that crime, that count should be vacated. The Petition should be summarily dismissed.

         BACKGROUND

         Petitioner alleges the following related to his case history. In the United States District Court for the Southern District of Florida, in 2006, he was indicted on charges of felon in possession of a firearm, trafficking and using one or more unauthorized access devices, effecting transactions with access issued to another person, and aggravated identity theft in violation of the United States Code of Laws. [Doc. 1-1.] His trial commenced on January 16, 2007, and he was sentenced on April 12, 2007, to 222 months imprisonment. [ Id. ] He filed a direct appeal, and the United States Court of Appeals for the Eleventh Circuit affirmed his conviction on April 14, 2008. [ Id. ]

         On October 28, 2008, Petitioner unsuccessfully filed a motion to vacate pursuant to 28 U.S.C. § 2255 in the sentencing court. [ Id. ] He filed a second motion pursuant to § 2255, and the court denied it. [ Id. ] He also unsuccessfully filed a motion pursuant to 28 U.S.C. § 2241 in the Western District of Florida. [ Id. ] He has unsuccessfully filed several requests with the United States Court of Appeals for the Eleventh Circuit seeking permission to file a second § 2255 action in 2010, 2012, 2013, and 2014. [ Id. ]

         With respect to the facts of this case, Petitioner alleges the following. At the trial, his attorney and the prosecutor stipulated that the firearm was manufactured outside of Florida and that the firearm traveled across the state boundary and moved in interstate commerce. [ Id. ] However, the cd provided in discovery before trial by the prosecutor had a technical problem, and the cd could not be reviewed by any standard computer. [ Id. ] Petitioner did not view that cd prior to trial, and he went through the direct appeal and filed a § 2255 action without knowing the contents of that cd. [ Id. ] He seems to allege that three years later Petitioner finally saw the contents of the cd; it contained pictures of the firearm that showed the manufacture inscription was Excam Company, Hialeah, Florida.[1] [ Id. ] The firearm that he was convicted of possessing was manufactured in Florida and had never left Florida. [Doc. 1.]

         Petitioner contends that because the firearm was manufactured in Florida, then it never left the state as it was found in his wife's dresser drawer. [Doc. 1-1.] Thus, he is actually and factually innocent of being a felon in possession of a firearm that traveled through interstate commerce pursuant to 18 U.S.C. § 922(g). [ Id. ] He alleges the government through lies and deceit misled the jury about this fact; otherwise, the government could not have proved that the firearm traveled in interstate or foreign commerce. [ Id. ]

         Relying on McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), Petitioner argues that his case falls within the actual innocence gateway to federal habeas review such that this action should be considered by this Court on the merits. [ Id. ] He contends that his conviction of felon in possession of a firearm is a miscarriage of justice because no reasonable juror would have convicted him if he or she had known the evidence of where the firearm was manufactured. [ Id. ]

         Moreover, Petitioner alleges that the government did not prove that he had constructive possession of the firearm. [ Id. ] He alleges the firearm was found in a drawer that was not in Petitioner's control, but the judge gave his son a leading question to establish constructive possession. [ Id. ]

         Petitioner requests that this Court vacate or reverse the count of felon in possession of a firearm. [ Id. ]

         This Court takes judicial notice that Petitioner filed a motion for clarification with the sentencing court-wherein he raised the argument that a newly seen photograph in the discovery materials showed the firearm was manufactured in Florida-in order to attempt to vacate the firearm possession count.[2] See Moss v. United States, Case No. 08-22997-CIV-UNGARO (S.D.Fla. March 25, 2011), ECF No. 73. The sentencing court granted the motion for clarification such that it ruled on Petitioner's claim and denied it; the court found that "Petitioner's bare claim about the place the firearm was manufactured does not entitle him to relief from the judgment." Id. The sentencing court explained that "[e]ven were the firearm manufactured in Florida, the requisite interstate nexus could, nonetheless, be satisfied by a showing that the firearm was shipped or transported at any time in interstate or foreign commerce." Id.

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) DSC, the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court. This Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012); see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).

         As a pro se litigant, Petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. SeeErickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the Petition in this case is subject to summary dismissal. The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.