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United States v. Shepard

United States District Court, D. Arizona

May 24, 2018

United States of America, Plaintiff,
v.
Moses Shepard, Defendant/Movant. No. CV 15-504-TUC-CKJ

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending before the Court is the Complete § 2255 Motion filed by Moses Shepard (“Shepard”). A response and a reply have been filed. Shepard has requested oral argument. The Court declines to schedule this matter for argument.

         Factual and Procedural Background

         On May 12, 2010, Shepard was indicted on two counts of interstate stalking in violation of 18 U.S.C. § 2261A(1) and (2)(A). On April 22, 2011, nine months before the trial, Shepard's advisory counsel filed a motion to strike surplusage from the indictment, arguing that the references to “intimidate” and “causes substantial emotional distress” did not track the statutory language and therefore violated Fed.R.Crim.P. 7(d). (CR 10-1032, Doc. 285.) Shepard adopted this argument. (CR 10-1032, Doc. 325.) On July 28, 2011, the Court ordered the reference to “intimidation” be stricken from Counts One and Two of the indictment. Subsequently, Shepard requested the government file a superseding indictment that strikes the words “and intimidate” from Counts One and Two of the indictment. This request was denied because the words were already stricken from the indictment pursuant to the Court's July 28, 2011, Order. A superseding indictment was not filed or returned by a grand jury.

         On January 17, 2012, the first day of trial, Shepard's advisory counsel submitted a copy of the indictment with the word “intimidate” removed. The Court did not provide a copy of the indictment to the jury. Rather, after reading the preliminary jury instructions, the Court read the modified indictment to the jury. Consistent with the Court's prior Order, the word “intimidate” had been removed, and references to specific statutes were replaced with the term “federal statutes.” Shepard did not object to this procedure and acknowledged that “intimidate” had been stricken from the indictment and would not be included in the indictment or jury instructions.

         On January 19, 2012, the last day of trial, the Court gave final jury instructions and provided the jurors with a copy of the jury instructions and a modified indictment. (Doc. 50.) Shepard made no objection to the modified indictment except for requesting that his middle name, Antonio, be removed. The final jury instructions were filed in the electronic docket, along with the modified indictment. On January 19, 2012 a jury convicted Shepard of stalking and cyberstalking in violation of 18 U.S.C. § 2261A(1), (2)(A), (b)(5), and (b)(6) in CR 10-1032-TUC-CKJ.[1] May 14, 2012 Minute Entry (CR 10-1032, Doc. 716). Shepard was sentenced to two consecutive fifty month terms of imprisonment followed by three years of supervised release. Shepard appealed his conviction and sentence. Represented by counsel, Shepard did not raise any issue related to the “superseding indictment” on appeal. On July 14, 2014, the Ninth Circuit Court of Appeals issued the mandate of its denial of Shepard's direct appeal (CR 10-1032, Doc. 879). Shepard's petition for writ of certiorari was denied on October 20, 2014 (CR 10-1032 Doc. 880).

         On October 22, 2015, Shepard filed a Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) and a Declaration (Doc. 4) on October 29, 2018. He requested leave to file an amended 2255 motion; the Court granted in part and denied in part this request (Docs. 13 and 15). Specifically, the Court stated:

. . . Shepard may file within 30 days of the date of this Order a complete Amended § 2255 Motion that encompasses his original § 2255 Motion, the missing page, and the contents of the supplemental filing as discussed herein.
Shepard also requests that the document filed as a Declaration (Doc. 4) be accepted as an amended § 2255 motion. Because an amended document supersedes an original document, Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"), and it does not appear Shepard is seeking to waive the claims made in his original Motion, the Court will deny the request to accept the document as an amended § 2255 motion. However, the Court will accept the Declaration as a supplement to Movant's § 2255 Motion. See e.g., Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (“leave to permit supplemental pleading is ‘favored[]'”).

Dec. 15, 2015 Order (Doc. 13), pp. 2-3 (emphasis added). The Court subsequently stated:

The Court declines to accept Shepard's Second Supplement. The Court does not find it appropriate to place itself or government counsel in the position of attempting to decipher which facts, claims, and arguments from each documents support the facts, claims, and arguments in other documents. Further, such piecemeal use of pleadings by Shepard and deciphering by the Court unfairly risks an inadequate review of the claims, possibly prejudicing Shepard. . . However, the Court will grant Shepard additional time to file an all-encompassing motion pursuant to the Court's December 15, 2015, Order.

Feb. 3, 2016 Order (Doc. 27), p. 5 (emphasis added). The Court then ordered:

If Shepard does not wish the Court to consider the original motion (Doc. 1) and his Declaration (Doc. 4) as his § 2255 Motion, Shepard may file within 60 days of the date of this Order a complete Amended § 2255 Motion.

Id. at p. 7.

         Shepard filed a Complete 2255 Motion on June 22, 2016 (Doc. 48). The government filed a response on August 4, 2016 (Doc. 52). Shepard has filed a reply (Doc. 55), a supplemental reply (Doc. 61) and a final reply (Doc. 64).

         2255 Habeas Petition

         The Court provided Shepard with an option to use his original motion (Doc. 1) and declaration (Doc. 4) or a separate complete document as an Amended § 2255 Motion. Indeed, the Court advised Shepard that piecemeal use of pleadings by Shepard and deciphering by the Court unfairly risks an inadequate review of the claims, possibly prejudicing Shepard. Shepard did not include his original claims in his Complete § 2255 Motion. Rather, Shepard incorporated prior claims in his Complete §2255 Motion. (Doc. 48 at 2.) The Court will accept this piecemeal briefing at Shepard's implicit request, recognizing Docs. 1, 4, and 48 as Shepard's §2255 habeas petition. The Court accepts the government's response (Doc. 52) and, again, accepts Shepard's piecemeal reply (Docs. 55, 61, and 64).

         However, the Court will only address those claims related to his conviction and sentence and will not address those claims related to Shepard's conditions of confinement (e.g., religious requests (Doc. 1-3 at 28.)). See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)) ("Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location or condition of a sentence's execution must be brought pursuant to § 2241 in the custodial court."); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (“To the extent Tucker's complaint seeks damages for civil rights violations, his complaint is construed as a Bivens action.”); Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).

         Procedural Default

         A habeas petitioner procedurally defaults on claims that he could have, but did not raise on appeal. See United States v. Braswell, 501 F.3d 1147 (9th Cir. 2007), (citing Bousley v. United States, 523 U.S. 614 (1998). "Habeas review is an extraordinary remedy and ‘will not be allowed to do service for an appeal.'" United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (quoting Bousley, 523 U.S. at 621). Here, Shepard raises a number of issues that could have been raised on appeal but were not. These claims are procedurally defaulted and do not provide a basis for habeas relief.

         The Court finds the following claims raised by Shepard are procedurally defaulted because they were not raised on appeal:

1. Claims related to a superceding indictment.[2]
2. “Jury instructions: subjective intent vs. reasonable person.” (Doc. 1-2 at 55)
3. “Public-religious figure exception.” (Id.)
4. “Sentence may not exceed minimum allowed by law because only a jury, not judge, may decide sentence-based facts.” (Id. at 56; Doc. 48 at 40.) Collateral review is not available for an advisory guideline sentence that falls below the statutory maximum. Spencer v. United States, 773 F.3d 1132, 1135, 1140 (11th Cir. 2014) (en banc) (“[A]ny miscalculation of the guideline range cannot be a complete miscarriage of justice because the guidelines are advisory.”).
5. “Aggravated sexual abuse not charged in indictment.” (Id. at 57; Doc. 48 at 37.)
6. “All personal property seized must be returned without delay.” (Id. at 59; Doc. 48 at 40.)
7. “Alleged true or any threats not charged by indictment.” (Id. at 59.)
8. “Sentence contravenes U.S. Sentencing Commission priorities.” (Id. at 60; Doc. 48 at 40.)
9. “Stalking conviction inapposite to government's admissions.” (Id. at 60.)
10. “Conviction based on false & unreliable testimony cannot stand.” (Id. at 61.)
11. “Supervisory release conditions unconstitutional, per Ninth Circuit, and inapposite to movant's factual circumstances.” (Id ...

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