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United States v. Moore

United States District Court, D. Arizona

May 17, 2016

United States of America, Plaintiff,
v.
Marlon Moore, Defendant.

          REPORT AND RECOMMENDATION

          JOHN Z. BOYLE, Magistrate Judge.

         TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

         Defendant 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. 8.)[1]

         I. SUMMARY OF CONCLUSION

         Petitioner's 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.

         II. PROCEDURAL HISTORY

         On July 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.)[2] 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).

         The 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 ...

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