Opinion
No. 13-14570-D
10-23-2018
IN RE: JERMAINE LENARD MOSS, Petitioner.
Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h) Before: HULL, PRYOR, and MARTIN, Circuit Judges. BY THE PANEL:
Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Jermaine Lenard Moss has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or28 U.S.C. § 2255(h). "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." Id. § 2244(b)(3)(C).
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
In his instant application, Moss indicates that he wishes to raise three claims in a second or successive § 2255 motion. In his first claim, he argues that his sentences on the drug charges were obtained in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments. Specifically, he asserts that at sentencing he was held accountable for 50 grams or more of crack cocaine, which triggered the mandatory minimum 10-year term of imprisonment. Moss contends that the indictment alleged that he was responsible for 50 grams of crack cocaine. However, the trial court's instructions advised the jurors that they could find Moss guilty of the drug counts even if the quantity of crack cocaine was less than the amount charged in the indictment. Moreover, the special verdict form failed to give the jury an option to find Moss responsible for less than 50 grams of crack cocaine. Thus, his constitutional rights were violated because his total sentence was based on a drug amount that was not submitted to a jury or found beyond a reasonable doubt. Moss asserts that his claim relies on a new rule of constitutional law announced in Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
In Alleyne, the Supreme Court determined that any facts that increased the applicable statutory mandatory minimum sentence for a crime must be submitted to a jury and found beyond a reasonable doubt. Alleyne, 570 U.S. at ___, 133 S.Ct. at 2155, 2163. Here, even assuming that Alleyne established a "new rule of constitutional law" within the meaning of the statute, it has not been made retroactive to cases on collateral review for purposes of § 2255(h)(2). First, the Supreme Court itself has not expressly declared Alleyne to be retroactive to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 662-63, 121 S.Ct. 2478, 2482, 150 L.Ed.2d 632 (2001) (explaining that for a new rule to be retroactive to cases on collateral review for purposes of authorizing a second or successive § 2255 motion, the Supreme Court itself must make the rule retroactive). Second, Alleyne has not been made retroactive through any combination of cases that necessarily dictate retroactivity. See id. at 666, 121 S.Ct. at 2484 (noting that although multiple cases can, together, make a rule retroactive, their holdings must necessarily dictate retroactivity of the new rule).
Moreover, Alleyne was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. See Alleyne, 570 U.S. at ___, 133 S.Ct. at 2155-56; In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005) (concluding that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), was not retroactive to cases on collateral review in part because it "was decided in the context of a direct appeal, and the Supreme Court ha[d] not since applied it to a case on collateral review"). Therefore, the Supreme Court has not held, either directly or by a series of decisions that necessarily dictate its retroactivity, that Alleyne is retroactively applicable, and Moss's reliance on it for purposes of § 2255(h)(2) is misplaced. See Tyler, 533 U.S. at 663, 666, 121 S.Ct. at 2482, 2484; 28 U.S.C. § 2255(h)(2).
In his second claim, Moss alleges that he is "actually innocent" of the offense of conspiracy to use and carry firearms during and in relation to a drug trafficking crime. Specifically, he contends that 18 U.S.C. § 924(c) criminalizes two separate and distinct offenses: (1) using or carrying a firearm during and in relation to a drug trafficking crime; and (2) possession of a firearm in furtherance of a drug trafficking crime. In this case, neither the jury instructions nor the indictment made any mention of the possession-of-a-firearm prong. Moss, therefore, reasons that the jury might have found him guilty of mere "offense-possession of a firearm," a crime that is not criminalized by § 924(c). Additionally, he contends that based on the record evidence, no reasonable jury could have found him guilty of the substantive offense of using or carrying a firearm during and in relation to a drug trafficking crime. Moss cites to McQuiggin v. Perkins, 569 U.S. ___, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013), in support of his actual-innocence claim.
The Supreme Court in McQuiggin held that actual innocence, if proved, may serve as a gateway through which a petitioner may bring an untimely federal habeas petition. McQuiggin, 569 U.S. at ___, 133 S.Ct. at 1928. The Court emphasized that, to meet the "actual innocence" threshold requirement, a petitioner must show that, "in light of . . . new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (quotation omitted).
McQuiggin did not announce a new rule of constitutional law. Rather, the McQuiggin Court expressly stated that its ruling was an equitable one. See McQuiggin, 569 U.S. at ___, 133 S.Ct. at 1931 (explaining that the petitioner sought "an equitable exception to § 2244(d)(1)"—the federal habeas statute of limitations—and "not an extension of the time statutorily prescribed," and that the fundamental-miscarriage-of-justice exception "is grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons"). Moreover, Moss has not made a showing of actual innocence, i.e., that, based on new evidence, no reasonable juror would have convicted him. See McQuiggin, 569 U.S. at ___, 133 S.Ct. at 1928; McKay v. United States, 657 F.3d 1190, 1197 (11th Cir. 2011) (explaining that "actual innocence" means factual innocence, not mere legal insufficiency), cert. denied, 133 S.Ct. 112 (2012).
In his third claim, Moss alleges that the district court "plainly erred and abused its discretion" in relation to the jury instructions for the firearms offense. Specifically, he contends that the district court delivered a jury instruction that tracked the language in the indictment. Yet the indictment incorrectly used the terms "use and carry," rather than "use or carry," as listed in the statute of conviction. Moreover, he argues there was no evidence to show that Moss conspired to use and carry firearms, and that the district court also plainly erred by failing to properly define the terms "use and carry" for the jury. To begin, Moss fails to indicate whether claim three relies upon a new rule of constitutional law or newly discovered evidence. Beyond that, the factual predicate underlying this claim would have been known to him at the time he filed his initial § 2255 motion in 2010, and thus, his allegations cannot constitute newly discovered evidence within the meaning of § 2244(b)(2). See 28 U.S.C. § 2244(b)(2)(B).
Because Moss has failed to make a prima facie showing of the existence of either of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby DENIED.