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Moss v. Dobbs

United States District Court, D. South Carolina, Anderson/Greenwood Division

September 23, 2019

Dwight E. Moss, Petitioner,
v.
Warden B. Dobbs, Respondent.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin United States Magistrate Judge

         Dwight 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.

         BACKGROUND

         This 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”)[1], 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.'”).

         Petitioner's Conviction, Sentence, and Appeal

         In July 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 6.[2] [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).

         Petitioner filed numerous other motions in the sentencing court; however, those motions have no impact on the matter now before this Court.

         Petitioner's § 2255 Motions

         On 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).

         On 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.

         Petitioner's First § 2241 Motion

         On 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).

         Petitioner's Present Action

         Petitioner 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.]

         That 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.]

         As 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 his contention.

         First, 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.]

         Second, 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.]

         Third, 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.]

         For his relief, Petitioner requests that the Court vacate his conviction and sentence and order his release from custody. [Id. at 7.]

         APPLICABLE LAW

         Under 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.

         Furthermore, 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).

         DISCUSSION

         Savings ...


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