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United States v. Moses

United States District Court, D. Vermont

May 15, 2018

UNITED STATES OF AMERICA
v.
RICHARD E. MOSES, JR., Defendant.

          OPINION AND ORDER (Docs. 395, 398)

          Geoffrey W. Crawford, Chief Judge

         Richard Moses has filed an "Application under the All Writs Act, " asserting that his August 2008 guilty plea was rendered involuntary because the court violated Fed. R. Crim. P. 11(c)(1) by participating in plea negotiations in the midst of trial, and that his counsel was ineffective for allowing the alleged Rule 11 violation to go unchallenged. (See Doc. 395.) He requests that his conviction and sentence be vacated so that he can re-plead or be resentenced. (Id. at 15.) The United States Magistrate Judge issued a Report and Recommendation (R&R) on March 19, 2018, construing Moses's application as a second or successive habeas motion under 28 U.S.C. § 2255, and recommending that the case be transferred to the Second Circuit under 28 U.S.C. §§1631, 2254(b), and 2255(h). (Doc. 398.) Moses has filed objections to the R&R, arguing that his application should not be construed as a second or successive § 2255 motion, and alternatively requesting that the court recuse itself and that venue be changed to a location outside of the northeastern United States. (See Doc. 403.)

         After careful review of the record, the parties' filings, and the Magistrate Judge's R&R, the court AFFIRMS, APPROVES, and ADOPTS the R&R in its entirety.

         I. Standard Governing Review of the R&R

         A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. The district judge is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. Thomas v. Am, 474 U.S. 140, 150 (1985). The court considers the following factors when determining whether to consider new legal arguments raised for the first time in an objection to an R&R:

(1) the reason for the litigant's previous failure to raise the new legal argument;
(2) whether an intervening case or statute has changed the state of the law;
(3) whether the new issue is a pure issue of law for which no additional factfinding is required; (4) whether the resolution of the new legal issue is not open to serious question; (5) whether efficiency and fairness militate in favor or against consideration of the new argument; and (6) whether manifest injustice will result if the new argument is not considered.

Dimaggio v. Colvin, No. 5:13-cv-296, 2015 WL 4392954, at *2 (D. Vt. July 15, 2015) (quoting Wells Fargo Bank, N.A. v. Sinnott, No. 2:07-CV-169, 2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010)).

         II. Background

         The following background is drawn from the court's docket entries in this case, Moses's description of the procedural background (Doc. 395 at 4, 13), and the Magistrate Judge's R&R, including his recitation of the factual and procedural background (Doc. 398 at 1-2). None of the relevant procedural background appears to be in dispute. Moses does assert that he has new evidence, which the court describes below.

         A. Indictment, Trial, and Plea

         On June 20, 2006, Moses was charged in this court on a 15-count superseding indictment that alleged drug-trafficking and firearms offenses, the use of interstate commerce facilities in the commission of murder-for-hire, and tampering with a witness, victim, or informant. (See Doc. 44.) A jury trial commenced on August 6, 2008, with Judge J. Garvan Murtha presiding. (Doc. 167.) Attorney Lamar Enzor represented Mr. Moses.

         The court held a bench conference on the second day of trial, August 7, 2008. At the sidebar, the court inquired what Moses's sentencing exposure was, and Attorney Enzor stated that he was facing up to life without parole, and that there was an outstanding question about whether the sentence might be mandatory life ...


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