United States District Court, D. Columbia.
ERNEST BERNARD MOORE, Defendant, Pro se.
For USA, Plaintiff: Bernard J. Delia, Ellen Chubin Epstein, Steven John Durham, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Special Proceedings Section, Washington, DC.
ROYCE C LAMBERTH, United States District Judge.
Pro se defendant/petitioner Ernest Bernard Moore (" Moore" ) seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (2012). Moore pleaded guilty to student aid fraud, bank fraud, and Social Security fraud on November 9, 2009. See Plea Agreement, ECF No. 5. Moore now argues that the United States failed to present sufficient evidence to sustain his bank fraud conviction, his trial and appellate counsel were ineffective, and that his plea agreement was accepted in violation of Federal Rule of Criminal Procedure 11. For the following reasons, Moore's motions will be denied.
Moore was charged with student aid fraud, bank fraud, and Social Security fraud by criminal information on October 1, 2009. Information, ECF No. 1. The factual background of this case was detailed by the Court of Appeals for the D.C. Circuit in Moore's direct appeal. United States v. Moore, 703 F.3d 562, 403 U.S.App.D.C. 242, 246-48 (2012). Moore pleaded guilty to all three counts on November 9, 2009. Plea Agreement, ECF No. 5. On September 23, 2010, the Court sentenced Moore to concurrent terms of fifty months' imprisonment for all three counts, to be followed by
concurrent supervised-release terms of thirty-six months on the student aid and Social Security fraud counts and sixty months on the bank fraud count. The Court also ordered Moore to pay restitution of $759,593.86. Moore appealed, and the D.C. Circuit affirmed the convictions and sentence on December 28, 2012. USCA Order, ECF No 55. Moore, 703 F.3d at 562. The United States Supreme Court denied Moore's petition for writ of certiorari on October 7, 2013. Moore v. United States, 134 S.Ct. 223, 187 L.Ed.2d 167 (2013).
Moore filed the present motion to vacate his sentence under 28 U S C § 2255 (2012) on January 15, 2014. Mot to Vacate, ECF No 59. On January 29, 2014, Moore filed a motion for leave to file a supplement to his § 2255 motion, a motion for release on his own recognizance and to stay execution of sentence pending resolution of the § 2255 motion, and a motion for judicial notice of undisputed facts. Mot for Release, ECF No 62, Mot for Leave to File Supplement, ECF No 63, Mot for Judicial Notice, ECF No 64. The United States filed their opposition to Moore's motion for release on April 28, 2014. Opp'n to Mot, ECF No 68. Moore filed his reply and a motion for leave to file excess pages on June 12, 2014. Mot for Leave to File, Reply to the United States' Opp'n, ECF No 71. On July 18, 2014, the United States filed a motion for leave to file out of time and its opposition to Moore's motion to vacate his sentence under § 2255. Mot for Leave to File, ECF No 72, Opp'n to Def's Mot to Vacate, ECF No 73. On July 24 and July 31, 2014, Moore filed two additional motions for leave to file excess pages and replies to the United States' opposition. Mot for Leave to File, Mem of P & A in Supp of Reply to Opp'n, ECF No 74, Mot for Leave to File, Am Mem of P & A in Supp of Reply to Opp'n, ECF No 79.
II. LEGAL STANDARD
A motion under § 2255 allows federal prisoners to collaterally attack an otherwise final sentence if the sentence was (1) imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack § 2255(a). The petitioner bears the burden of proof and must demonstrate his right to relief by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935, 154 U.S.App.D.C. 350 (D C Cir 1973), United States v. Ashton, 961 F.Supp.2d 7, 11 (D D C 2013). Relief under § 2255 is an extraordinary remedy in light of society's legitimate interest in the finality of judgments. Ashton, 961 F.Supp.2d at 11 (citing United States v. Zakas, 793 F.Supp.2d 77, 79-80 (D D C 2011)). Thus, a motion to vacate under § 2255 is " neither a second chance at appeal nor is it a substitute for direct appeal" . Id. A defendant is therefore required to show " a good deal more than would be sufficient on a direct appeal" to gain collateral relief. United States v. Pollard, ...