United States District Court, D. South Carolina, Anderson/Greenwood Division
Dwight E. Moss, Petitioner,
Warden B. Dobbs, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
E. Moss (“Petitioner”) is a prisoner in the
custody of the Federal Bureau of Prisons and is currently
incarcerated in South Carolina at the Williamsburg Federal
Correctional Institution. Proceeding pro se, Petitioner
brings this habeas action under 28 U.S.C. § 2241.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned
Magistrate Judge is authorized to review such petitions for
relief and submit findings and recommendations to the
District Court. For the reasons below, this habeas action is
subject to summary dismissal for lack of jurisdiction.
matter arises from Petitioner's conviction and sentence
in the United States District Court for the Southern District
of Florida. Petitioner commenced the instant habeas action to
challenge his conviction and sentence by filing a habeas
petition pursuant to 28 U.S.C. § 2241 (the
“Petition”), a supporting memorandum, and
additional attachments in support of his Petition. [Docs. 1;
1-1; 1-2; 1-4.] The Court has carefully reviewed the Petition
and each of the supporting documents. Additionally, the Court
takes judicial notice of the records in Petitioner's
criminal case and prior habeas proceedings in the sentencing
court and in this Court. See Philips v. Pitt Cty. Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining
courts “may properly take judicial notice of matters of
public record”); Colonial Penn Ins. Co. v.
Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We
note that ‘the most frequent use of judicial notice is
in noticing the content of court records.'”).
Conviction, Sentence, and Appeal
2006, a grand jury in the United States District Court for
the Southern District of Florida returned a six-count
Indictment against Petitioner, charging him with various
crimes including possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1), at Count
[Doc. 1-1 at 2]; United States v. Moss, No.
1:06-cr-20442-UU-1 (S.D. Fla. July 21, 2006) (“Moss
I”), Doc. 1. On January 16, 2007, a jury convicted
Petitioner on all Counts of the Indictment, including the
§ 922(g) charge at Count 6. Moss I, Doc. 51. On
April 12, 2007, Petitioner was sentenced to a total term of
imprisonment of 222 months, which included a term of 150
months' imprisonment as to Count 2, a term of 120
months' imprisonment as to each of Counts 1 and 6, to run
concurrently, and a term of 24 months' imprisonment as to
each of Counts 3, 4, and 5, to run consecutively to each
other and consecutively to the sentence imposed at Counts 1,
2, and 6. Moss I, Docs. 84; 85. Petitioner filed a
direct appeal and, on April 14, 2008, the Eleventh Circuit
Court of Appeals affirmed Petitioner's conviction and
sentence. [Doc. 1-1 at 3]; United States v. Moss,
273 Fed.Appx. 840 (11th Cir. 2008).
filed numerous other motions in the sentencing court;
however, those motions have no impact on the matter now
before this Court.
§ 2255 Motions
October 28, 2008, Petitioner filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. [Doc. 1-1 at 3]; Moss v. United States, No.
1:08-cv-22997-UU (S.D. Fla. Oct. 28, 2008) (“Moss
II”), Doc. 1. The sentencing court granted
Petitioner two evidentiary hearings. [Doc. 1-1 at 3.]
Ultimately, however, the Court dismissed Petitioner's
motion on April 20, 2010. Moss II, Doc. 59 (adopting
the Report and Recommendation at Doc. 47).
September 23, 2016, Petitioner filed a second motion pursuant
to 28 U.S.C. § 2255. Moss v. United States, No.
1:16-cv-24073-UU (S.D. Fla. Sept. 23, 2016) (“Moss
III”), Doc. 1. The sentencing court denied the
motion on November 18, 2016, finding the motion qualified as
a second or successive motion because his first motion was
denied on the merits. Moss III, Doc. 8 (adopting the
Report and Recommendation at Doc. 7). By Orders dated
December 16, 2016, and July 12, 2017, the Eleventh Circuit
Court of Appeals denied Petitioner's request for leave to
file a successive § 2255 motion. Moss III,
Docs. 10, 11.
First § 2241 Motion
February 10, 2016, Petitioner filed a motion pursuant to 28
U.S.C. § 2241 in this Court, asserting, among other
claims, that he is actually innocent of the § 922(g)
charge. Moss v. Meeks, No. 8:16-cv-416 (D.S.C. Feb.
10, 2016) (“Moss IV”), Doc. 1. This
Court denied Petitioner's motion on May 10, 2016.
Moss IV, Doc. 18 (adopting Report and Recommendation
at Doc. 14).
now seeks habeas relief pursuant to 28 U.S.C. § 2241 in
this Court, claiming that he was wrongfully convicted. [Doc.
1 at 1.] Petitioner appears to challenge only his conviction
for the § 922(g) charge at Count 6. By way of
background, Petitioner alleges the following facts underlying
the events giving rise to his criminal charges and
conviction. The Court notes however, that some of the
allegations presented by Petitioner appear to conflict with
the evidence presented at trial. The Court recites
Petitioner's allegations here only to provide context for
Petitioner's argument. On March 21, 2006, Petitioner left
his residence to take his brother-in-law to the bus stop.
[Doc. 1-4 at 6.] After dropping his brother-in-law off at the
bus stop, Petitioner received a phone call from his wife, who
told him to return home because Petitioner's son had
found her brother's gun on the floor under the couch.
[Id.] Petitioner returned home because it was an
emergency, as underage children and his wife were home with a
firearm, and they had never operated a firearm.
[Id.] Petitioner arrived home and secured the
firearm for safety reasons. [Doc. 1-1 at 5.] Petitioner
claims that he handed the firearm over to his wife and
instructed her to return it to her brother. [Id.]
Petitioner claims that his wife placed the firearm in her
bedroom dresser drawer. [Id.]
same day, the United States Secret Service searched
Petitioner's residence for evidence related to
Petitioner's other crimes. [Doc. 1-4 at 6.] During the
search, the agents found a .25 caliber pistol in his
wife's dresser drawer. [Id.] Petitioner's
wife gave a written statement that the firearm belonged to
her brother. [Id.] Petitioner was not present at his
home during the search. [Doc. 1-1 at 6.] Petitioner later
discovered that the firearm bore “a second manufactured
inscription, which was never presented in his discovery,
” indicating that the firearm was manufactured in
Florida. [Doc. 1-4 at 6.]
noted, Petitioner was charged in Count 6 with being a felon
in possession of a firearm, and he was convicted by a jury.
Now, he contends that his conviction as to Count 6 is
unlawful, and he appears to present three grounds to support
Petitioner contends that, in light of Rehaif v. United
States, 139 S.Ct. 914 (2019), he is innocent of the
charge of violating § 922(g) and that his conviction and
sentence are therefore unconstitutional (“Ground
1”). [Doc. 1-4 at 6.] In support of Ground 1,
Petitioner contends that the Government failed to prove that
Petitioner knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from
possessing a firearm. [Id.]
Petitioner contends that he is actually and factually
innocent of his conviction for violating § 922(g)
because the firearm that gave rise to his conviction was
manufactured in the same state in which it was seized, and
the sentencing court therefore lacked jurisdiction over Count
6 of the Indictment (“Ground 2”). [Id.]
In support of Ground 2, Petitioner contends that he
discovered that the firearm frame contained a second
manufacturer inscription that was never presented during
discovery or at trial. [Id.]
Petitioner contends that his sentence is unlawful because the
sentencing court improperly calculated the amount of loss for
which Petitioner was responsible and unlawfully and
unconstitutionally departed upward to impose an
unconstitutional amount of restitution (“Ground
3”). [Id.] In support of Ground 3, Petitioner
contends that the sentencing court determined the amount of
loss attributable to Petitioner based on conduct by
unindicted co-conspirators and that, because he was the only
individual convicted, it was error for the sentencing court
to hold Petitioner responsible when other individuals should
be held accountable for their own acts. [Id.]
relief, Petitioner requests that the Court vacate his
conviction and sentence and order his release from custody.
[Id. at 7.]
established local procedure in this judicial district, a
careful review has been made of the pro se pleadings pursuant
to the procedural provisions of the Anti-Terrorism and
Effective Death Penalty Act of 1996. The review has been
conducted in light of the following precedents: Denton v.
Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
Maryland House of Correction, 64 F.3d 951 (4th Cir.
1995) (en banc); Todd v. Baskerville, 712
F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d
1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Petitioner is a pro se litigant,
and thus his pleadings are accorded liberal construction.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); Cruz v. Beto, 405 U.S. 319 (1972).
Even under this less stringent standard, however, the
Petition is subject to summary dismissal.
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 of Rules
Governing Section 2254 Cases in the United States District
Courts; see also Rule 1(b) Rules Governing Section
2254 Cases in the U.S. District Courts (2012) (explaining
that a district court may apply these rules to a habeas
corpus petition not filed pursuant to § 2254).