USA v. Moore

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Jimmie Dean Moore,
Petitioner,
vs.
United States of America,
Respondent.
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ORDER ON MOTION TO VACATE,
SET ASIDE, OR CORRECT
SENTENCE
Case No. 3:23-cv-159
United States of America,
Plaintiff,
vs.
Jimmie Dean Moore,
Defendant.
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Case No. 3:21-cr-204
Petitioner Jimmie Dean Moore moves to vacate, set aside, or correct sentence under 28
U.S.C. § 2255. Doc. 32. The United States opposes the motion. Doc. 36. The motion is denied.
I. BACKGROUND
On October 28, 2021, Moore was charged with abusive sexual contact by way of
information. Doc. 1. Moore entered into a plea agreement to plead guilty to abusive sexual contact.
Doc. 3. A combined change of plea and sentencing hearing was held on February 24, 2022. At the
hearing, Moore waived his right to be indicted (Doc. 15), and the Court accepted his guilty plea
(Doc. 26 at 23). The presentence investigation report (“PSIR”) calculated Moore’s total offense
level to be 34, and his criminal history a category V. Doc. 10 at 6, 9. The PSIR also found Moore
qualified as a repeat and dangerous sex offender against minors. Id. at 13. His sentencing guideline
range was 235 to 293 months. Doc. 26 at 26.
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After arguments by the parties, statements from impacted victims, and Moore’s allocution,
he was sentenced to 293 months’ incarceration, followed by lifetime supervised release. Doc. 17.
Moore appealed. Doc. 20. The Eighth Circuit Court of Appeals dismissed his appeal on August
23, 2022. Doc. 27. Moore then filed this § 2255 motion on August 31, 2023, alleging ineffective
assistance of counsel and procedural error. Doc. 32.
II. LEGAL STANDARDS
A motion under 28 U.S.C. § 2255 provides avenues for relief “in several circumstances,
including cases shown to contain jurisdictional errors, constitutional errors, and errors of law.”
Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). “Habeas
review is an extraordinary remedy and will not be allowed to do service for an appeal.” Fletcher
v. United States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d
759, 762 (8th Cir. 2012)).
To obtain relief on an ineffective assistance of counsel claim, a petitioner must satisfy the
two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). For the first
prong, a petitioner must establish constitutionally deficient representation, meaning counsel’s
performance fell below an objective standard of reasonableness. Meza-Lopez v. United States, 929
F.3d 1041, 1044 (8th Cir. 2019) (citing Strickland, 466 U.S. at 687-88). “This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. Courts view the representation from
counsel’s perspective at the time of the alleged error to avoid the effects of hindsight and second-
guessing. Kemp v. Kelley, 924 F.3d 489, 500 (8th Cir. 2019) (citing Strickland, 466 U.S. at 489).
A petitioner must overcome a strong presumption that defense counsel provided “adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment.”
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Strickland, 466 U.S. at 690; see also Camacho v. Kelley, 888 F.3d 389, 394 (8th Cir. 2018).
Strategic decisions made after a thorough investigation of the law and facts are virtually
unchallengeable. United States v. Orr, 636 F.3d 944, 950 (8th Cir. 2011).
To satisfy the second prong, a petitioner must demonstrate that prejudice resulted from the
deficient representation. Strickland, 466 U.S. at 687. To do so, a petitioner must show “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Adejumo v. United States, 908 F.3d 357, 361 (8th Cir. 2018) (quoting
Strickland, 466 U.S. at 694). A reasonable probability is one “sufficient to undermine confidence
in the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at
694). When evaluating the probability of a different result, courts view the totality of the evidence
to gauge the effect of the error. Williams v. United States, 452 F.3d 1009, 1013 (8th Cir. 2006)
(citing Strickland, 466 U.S. at 495). Where a petitioner raises multiple ineffective assistance of
counsel claims, each claim must be examined independently rather than collectively. Hall v.
Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002) (citing Wainwright v. Lockhart, 80 F.3d 1226,
1233 (8th Cir. 1996)). Cumulative error will not justify habeas relief. Middleton v. Roper, 455
F.3d 838, 851 (8th Cir. 2006).
A § 2255 motion may be dismissed without a hearing if “(1) the petitioner’s allegations,
accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact.” Tinajero-Ortiz v. United States, 635 F.3d 1100, 1105 (8th Cir. 2011).
“The movant bears the burden to prove each ground entitling relief.” Golinveaux v. United States,
915 F.3d 564, 567 (8th Cir. 2019) (citation omitted). Whether to grant or deny an evidentiary
hearing is committed to the discretion of the district court. See id.
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III. DISCUSSION
A. Ineffective Assistance
Moore’s first claim is ineffective assistance of counsel. He alleges:
(1) In crafting the plea deal, counsel made fatal errors like leaving client vulnerable
to enhancements. (2) Counsel was not truthful in the contents and vulnerability of
the plea deal. (3) Counsel should have adviced [sic] client to withdraw the plea and
prepare a defense based the Reddest and Plenty Arrows 8th Circuit cases. (4)
Counsel did not realistically explain the implication of the sentencing guidelines of
235-293 months as opposed to the 48 months he was expecting with consideration
of 18 U.S.C. § 3553. (5) Counsel was denied her motion to withdraw on appeal.
The court then placing her in a conflict of interest, making the direct appeal futile.
Doc. 32 at 4. But these allegations are either conclusory, contradicted by the record, or inherently
incredible. Moore also fails to illustrate prejudice.
To begin, Moore’s accusation that counsel left him vulnerable to enhancements is
conclusory. Conclusory allegations are claims that lack factual specificity. See Allen v. Entergy
Corp., 181 F.3d 902, 905-06 (8th Cir. 1999); see also Berg v. Norand Corp., 169 F.3d 1140, 1146
(8th Cir. 1999). Moore does not specify what errors he believes counsel made or what counsel
should have done differently to avoid the enhancements he received. Similarly, Moore suggests
counsel was untruthful with him about the content of the plea agreement but does not elaborate as
to how counsel was untruthful or how he was prejudiced. The same is true for his allegation about
his appeal.
Moore also claims he was expecting a sentence of 48 months, but the record contradicts
his claim. Indeed, his counsel repeatedly referred to his hope for a 15-year sentence. Doc. 11 at 6;
Doc. 26 at 37, 38, 39. At no point did Moore suggest he was unsatisfied with this request. The
Court also informed Moore that he could receive a life sentence. Doc. 26 at 14. Even if he was
expecting a shorter sentence, he was not prejudiced by receiving a guideline sentence.
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As to Moore’s claim that counsel should have advised him to withdraw his guilty plea and
prepare a defense based on Reddest and Plenty Arrows, this also falls short of ineffective
assistance. Reddest involved the crime of aggravated sexual abuse which required proof of
penetration. See United States v. Reddest, 512 F.3d 1067, 1071 (8th Cir. 2008). The conduct
alleged in Reddest was insufficient to prove penetration of the genital opening, and the conviction
was reversed. Id. at 1072. Plenty Arrows is another case dealing with aggravated sexual abuse. See
United States v. Plenty Arrows, 946 F.2d 62, 63 (8th Cir. 1991). Similar to Reddest, the conduct
alleged in Plenty Arrows was insufficient to support a conviction because the evidence did not
show contact involving penetration. Id. at 65.
Abusive sexual contact is a lesser-included offense of aggravated sexual abuse. United
States v. No Neck, 472 F.3d 1048, 1054 (8th Cir. 2007). Reddest and Plenty Arrows are both
distinguishable because their convictions for aggravated sexual abuse required penetration of the
victim, and no penetration was required for Moore’s conviction of abusive sexual contact. Counsel
cannot be ineffective for not structuring a defense around cases that are distinguishable from
Moore’s conviction for abusive sexual contact. As a result, his ineffective assistance claim fails.
B. Process and Sufficiency Issues
In his second claim, Moore argues he did not receive due process for a number of reasons.
He alleges:
(1) Presentment of charge of § 2244 – Abusive Sexual Contact . . . regarding Moore
to a Grand Jury would not have resulted in an indictment. (2) Not all statutorial
[sic] elements of the charge exist, nor were they verified. (3) Accuser never stated
she was sexually abused or sexual contact was made, nor was there any physical
evidence to substantiate the charge. (4) KG never stated she was touched, its [sic]
only theory of the prosecution that Moore touched her in one of the spots indicated
in § 2246(3). Furthermore, the accuser needs to anatomically specific [sic]
according to U.S. Reddest (8th Cir) No. 06-4034. (5) There is not enough to
[sustain] the conviction.
Doc. 32 at 5.
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Moore knowingly and intelligently waived his right to indictment (Doc. 15), and the Court
confirmed that on the record. Doc. 26 at 10-12. If Moore genuinely believed he would not have
been indicted by a grand jury, it makes little sense for him to have waived the right to indictment.
Further, Moore did not object to the substance of the factual basis during his change of plea. Doc.
26 at 14-15. Not only was there enough factual information for Moore to be indicted, but he also
agreed on the record that there were sufficient facts to prove his guilt. Doc. 26 at 23. Any
suggestion he would not have been indicted is contradicted by the record.
The remaining allegations in this claim concern the sufficiency of the evidence. Moore
waived any challenge to the sufficiency of the evidence supporting his conviction when he pleaded
guilty. See United States v. Alvarado-Sanchez, 383 F. App’x 576, 577 (8th Cir. 2010).
Nevertheless, the Court will briefly review his claim. First, Moore rehashes his argument that
Reddest and Plenty Arrows require more anatomical information about how he touched the victim
was necessary to sustain his conviction. But again, Moore’s reliance on these cases is misplaced
because of the distinctions between a conviction of aggravated sexual abuse and a conviction of
abusive sexual contact. The factual basis admitted to by Moore states that he intentionally touched
the genitals of a child under the age of 12 with the intent to satisfy his sexual desire. Doc. 3 at 2.
That is sufficient to convict Moore of abusive sexual contact, and this claim also fails.
C. Voluntariness of the Plea
Moore goes on to argue he was “duped” into accepting his plea agreement. He alleges:
(1) Moore is a victim of ‘Enhancement Entrapment’. Had he known he was going
to receive a ’20 or ’24 year sentence he would have dropped the plea deal,
withdrawn his guilty plea and gone to trial. (2) Moore answered his summons, (he
was never indicted), plead guilty and received 293 months which was the maximum
range in the guidelines. The court indeed accepted the 48 months the counsel
requested but it was deducted off the end of the 293 months, making his sentence
245 month (20 years + 5 months). (3) Therefore, Moore was simply duped and did
not benefit from the plea deal. It only made it easy for the [prosecutors].
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Doc. 32 at 7.
Moore’s statements at the change of plea portion of his combined hearing contradict his
argument. It is well-established that a defendant’s statements at a plea hearing carry a strong
presumption of truthfulness. United States v. Green, 521 F.3d 929, 931 (8th Cir. 2008); United
States v. Ledezma–Rodriquez, 423 F.3d 830, 836 (8th Cir. 2005). “Allegations that contradict a
defendant’s statements at the change of plea hearing are inherently unreliable.” United States v.
McHenry, 849 F.3d 699, 706 (8th Cir. 2017).
During the change of plea, Moore was placed under oath. Doc. No. 26 at 4. He then
represented that the plea agreement he signed reflected his full understanding of the agreement (id.
at 19) and that no promises (such as a certain sentence) had been made in exchange for his guilty
plea. Id. Moore also indicated that he was aware that he could receive a sentence of life in prison.
Id. at 14. Along these lines, he also indicated he was aware of the possibility of upward adjustments
in his sentence. Id. at 16-17.
While Moore now claims his counsel led him to believe he would receive a sentence of no
more than 48 months, the record decisively refutes his claim. Moore was fully aware that he was
facing a potential life sentence and represented to the Court that he had not been promised anything
in return for his guilty plea. The statements made under oath at the change of plea hearing carry
far more weight than Moore’s current suggestion that he was led to believe he would receive a
sentence of no more than 48 months. Put simply, the record directly refutes his claim, and Moore
is not entitled to relief on this issue.
While not specifically argued by Moore, his challenge to the voluntariness of his pleas can
also be construed as another claim for ineffective assistance of counsel. However, even if Moore’s
counsel advised him deficiently regarding his potential sentence, this error was rectified by the
Court’s accurate communication of the potential life sentence, and Moore suffered no prejudice.
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See, e.g., Matthews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) ( “[r]egardless of what his
trial counsel advised him concerning the length of the potential sentences that might result from
his guilty pleas, the record demonstrates that the trial judge clearly explained the potential
maximum sentence to [the petitioner] at the plea proceeding.”). Any claim for ineffective
assistance of counsel related to advice regarding Moore’s potential sentence fails for lack of
prejudice, and the claim fails.
D. Evidentiary Hearing
Section 2255(b) requires an evidentiary hearing “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.” No hearing is
necessary “if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to
relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements of fact.” Sanders v. United States,
341 F.3d 720, 722 (8th Cir. 2003).
After careful review of the file and all of Moore’s substantive § 2255 claims, the record
decisively refutes each claim presented. So, dismissal without an evidentiary hearing is warranted.
See Calkins v. United States, 795 F.3d 896, 900 (8th Cir. 2015).
IV. CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority.
Moore’s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (Doc. 32) and his
is DENIED. This matter is DISMISSED without an evidentiary hearing.
The Court certifies that an appeal from the denial of the motion may not be taken in forma
pauperis because such an appeal would be frivolous and cannot be taken in good faith. Coppedge
v. United States, 369 U.S. 438, 444-45 (1962). Based upon the entire record, dismissal of the
motion is not debatable, reasonably subject to a different outcome on appeal, or otherwise
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deserving of further proceedings. Therefore, the Court will not issue a certificate of appealability.
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th
Cir. 1997). If Moore desires further review of his motion, he may request a certificate of
appealability from a circuit judge of the Eighth Circuit Court of Appeals.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 6th day of March, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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