United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Z. BOYLE, Magistrate Judge.
HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Marlon Moore has filed a pro se Amended Motion to
Vacate, Set Aside, or Correct Sentence by a person in Federal
Custody pursuant to 28 U.S.C. § 2255, seeking to vacate or
set aside a sentence imposed by the Court. (Doc.
SUMMARY OF CONCLUSION
claim that counsel failed to assert that the government
threatened a witness prior to an evidentiary hearing is
meritless. Counsel identified the implied threat and argued
(unsuccessfully) that the government acted to prevent the
witness from testifying at the hearing. Petitioner's
argument that counsel should have raised a confrontation
argument regarding a confidential informant is also
meritless. Petitioner's final argument regarding a
Miranda violation is procedurally defaulted because
Petitioner did not raise the issue on direct appeal. The
Court therefore recommends the Amended Petition be denied
without an evidentiary hearing.
17, 2012, an Indictment charged Petitioner with the offense
of Possession of Marijuana with Intent to Distribute in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D). (CR Doc. 2.)
On August 26, 2013, the Court sentenced Petitioner to 46
months of imprisonment followed by three years of supervised
release. (CR Doc. 81.) On October 23, 2014, the Ninth Circuit
Court of Appeals affirmed Defendant's conviction and
sentence. United States v. Moore, 770 F.3d 809, 812
(9th Cir. 2014).
Ninth Circuit Court of Appeals summarized the facts of the
case as follows:
In January of 2012, Moore was living in a house in Laveen,
Arizona, with his fiancee Kristen Jones, their nine-month old
daughter, and three more of Jones' children (ages nine,
four, and three). Moore worked in construction, ran a taxi
business, and was the primary caretaker of the children.
The Department of Homeland Security had been tracking Moore
since the fall of 2011 as a suspect in a marijuana
distribution ring. On January 18, 2012, DHS started
conducting surveillance on Moore's residence based on a
tip from a confidential informant that a large quantity of
marijuana had been delivered there. At 6:00 a.m. the next
day, DHS Special Agent Scott Wagoner continued the
surveillance. He was joined an hour later by nine other
federal law enforcement officials and two local law
enforcement officials. At approximately 8:04 a.m., the
officers watched as Jones left the house and drove off in a
Ford Crown Victoria. At approximately noon, Moore exited the
house, opened the garage door, pulled a Honda Accord into the
garage, and closed the garage door.
A couple of hours later, around 2:00 p.m., some of the
officers knocked on the door of the house and rang the
doorbell. They heard people inside, children crying, and
"shuffling around, " but no one came to the door.
After a few minutes, the officers returned to their cars. At
this point, Wagoner decided to go back to his office to start
working on an affidavit in support of an application for a
search warrant. During that time, however, his supervisor
suggested that Wagoner try calling the phone number that was
listed on a taxi cab that had been parked in front of the
home all day.
Wagoner dialed that number at 7:07 p.m., and Jones answered.
Agent Wagoner identified himself, explained that the house
was under surveillance for possible drug trafficking, and
that he was "in the middle of writing a search
warrant." Jones said that her three children, her
sister, and possibly "her boyfriend Marlon [Moore]"
were at the house. Wagoner later testified that Jones
"seemed deeply concerned for her kids being in the house
and the fact that the search warrant was going to
happen." Jones told Wagoner that she would leave work
and asked him to meet her at the house.
Soon thereafter, at 7:44 p.m., Jones called her sister, who
was in the house. One minute later, the officers watching the
house saw a person run through the backyard, from the house
to the edge of the yard, and heard a loud sound consistent
with something or someone coming over the fence and landing
on the ground in the adjacent backyard. The officers were
concerned that someone had fled the house and thus increased
the law enforcement presence, including bringing in a
helicopter. At the location where the officers heard the
sound, they found two large boxes, each of which contained a
20-pound bundle of marijuana wrapped in green cellophane and
surrounded by pink foam.
Wagoner returned to the scene and called Jones at 8:26 p.m.
Jones told him she was on her way there. She arrived around
8:40 p.m. After a short conversation regarding the situation,
Jones signed a Consent to Search form at 8:45 p.m.
Jones and some officers then went to the front door of the
residence. When she arrived at the front door, Jones called
her sister and Moore, but neither answered their respective
phone. Jones then attempted to unlock the door with her keys,
but she could not do so because the door had been locked with
a dead-bolt that could not be unlocked from the outside.
Jones continued to knock on the door and then called out-in a
voice that "was very, very loud" and
"definitely could be heard from
inside"-"Marlon, Nikki, the police are out here,
open the door, open the door." When still no one
answered the door, the officers requested permission from
Jones to break through the front door with a battering ram.
Jones consented to the use of the ram.
The officers used the ram to open the door. Jones then called
out again, and Moore, Jones' sister, the children, and
another man came out of the house. Once they were inside the
house, the officers found three boxes of marijuana that were
identical to the two that had been found in the backyard of
the neighboring house, along with digital scales, packing
material, and shrinkwrap. Following Miranda warnings, Moore
admitted that the marijuana was his and gave details as to
his sources and his shipping methods.
The government indicted Moore, charging him with possession
of marijuana with intent to distribute in violation of 21