United States v. Moore ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Case No. 1:08-cr-310-01-RCL
JERMAINE C. MOORE,
Defendant.
MEMORANDUM OPINION
Defendant Jermaine Moore has filed a pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. ECF No. 67. In 2009, Moore pleaded guilty to three counts of
a superseding indictment: two counts of transporting minors to engage in prostitution, violating
18 U.S.C. § 2423(a), and one count of simple assault, violating D.C. Code § 22-404(a)(l).
See 05/29/09 Min. Entry; Judgment, ECF No. 38. Now, years later, Moore objects to his guilty-
plea proceedings. Moore concedes that he served as a pimp for two minors-but, he says, he is
innocent because he did not know they were minors. See ECF No. 67 at 22. Moore also raises
three purported procedural defects: (1) that he did not receive effective assistance of counsel,
(2) that the sentencing judge's court lacked jurisdiction, and (3) that he pleaded guilty
unknowingly and involuntarily. Id. at 14.
The government opposes Moore's § 2255 motion. ECF No. 81. It urges the Court to
summarily deny Moore's claims as untimely or meritless. See id. at 5. The Court agrees. Upon
consideration of Moore's motion, the government's response, applicable law, and the record as a
whole, the Court will DENY Moore's§ 2255 motion to vacate, set aside, or correct his sentence.
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I. BACKGROUND
In 2007 and 2008, Moore trafficked a 15-year-old girl and 17-year-old girl. Statement of
Offense 1-2, ECF No. 27. Moore brought both girls across state lines into Washington, D.C.,
required them to engage in sex acts for money, and physically abused them when they failed to
meet his nightly quotas. Id. at 1-3. The girls told Moore that they were 15 and 17 years old. Id.
at 1-2. Moore had the girls stay at various hotels in Maryland while working for him as prostitutes.
Id. at 2.
On November 25, 2008, a grand jury charged Moore with (1) sex trafficking of children
by force, fraud, or coercion, violating 18 U.S.C. § 1591(a)(l); (2) transporting minors to engage
in prostitution, violating 18 U.S.C. § 2423(a); (3) simple assault, violating D.C. Code
§ 22-404(a)(l); and (4) witness tampering, violating 18 U.S.C. § 1512(b)(l). Superseding
Indictment, ECF No. 14. On May 29, 2009, Moore pleaded guilty to two of the§ 2423(a) counts
for transporting minors and to the§ 22-404(a) count for simple assault. See 05/29/09 Min. Entry.
On October 29, 2009, Judge Henry H. Kennedy, Jr. sentenced Moore to 204 months'
incarceration, concurrently, for the two § 2423(a) counts for transporting minors and imposed a
consecutive 180-day term for the § 22-404(a) simple-assault count. Sent'g Tr. 62:14-19,
ECF No. 63. Judge Kennedy also imposed a life term of supervised release. Id. at 62:20-24.
On appeal, the D.C. Circuit affirmed Moore's conviction in its entirety. United States
v. Moore, 555 F. App'x 1 (D.C. Cir. 2014). On May 19, 2014, the D.C. Circuit denied Moore's
petition for rehearing en bane. Id. Moore did not file a petition for certiorari in the Supreme Court.
ECF No. 67 at 2. Years later, on October 25, 2020, Moore filed the present § 2255 motion.
Id. at 11.
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II. LEGALSTANDARD
Under 28 U.S.C. § 2255, a prisoner may move to vacate, set aside, or correct his sentence
if (1) the sentence was imposed "in violation of the Constitution or laws of the United States";
(2) the court lacked jurisdiction to impose the sentence; (3) the sentence "was in excess of the
maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack."
28 U.S.C. § 2255(a). The prisoner bears the burden to prove his right to relief by a preponderance
of the evidence. United States v. Baugham, 941 F. Supp. 2d 109, 112 (D.D.C. 2012). A district
court need not hold an evidentiary hearing when "the motion and the files and records of the case
conclusively show the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
Per the Antiterrorism and Effective Death Penalty Act ("AEDP A"), § 2255 motions are
subject to a one-year statute of limitations. 28 U.S.C. § 2255(f). This limitations period begins
on the latest of the date when (1) "the judgment of conviction becomes final," (2) an "impediment
to making a motion created by governmental action in violation of the Constitution" or statutes is
removed, (3) the Supreme Court newly recognizes a right and makes it "retroactively applicable"
to collateral proceedings, or (4) "the facts supporting the claim ... could have been discovered
through the exercise of due diligence." Id. In most cases, the limitations period ends when the
"judgment of conviction becomes final." Dodd v. United States, 545 U.S. 353, 357 (2005). "[A]
judgment of conviction becomes final when the time expires for filing a petition for certiorari
contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S.
522, 525 (2003).
The Supreme Court has left open a "gateway" to this statute of limitations-actual
innocence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). If a defendant can prove that he is
actually innocent of the charged offense, procedural bars and AEDPA's statute oflimitations will
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not apply. Id. But "tenable actual-innocence gateway pleas are rare." Id. A defendant must
demonstrate that "in light of ... new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt." Adams v. Middlebrooks, 640 F. App'x 1, 3
(D.C. Cir. 2016) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)) (internal quotation marks
omitted). Actual innocence "means factual innocence, not mere legal insufficiency." Bousley v.
United States, 523 U.S. 614, 623 (1998). And "[i]n cases where the Government has foregone
more serious charges in the course of plea bargaining, [a defendant's] showing of actual innocence
must also extend to those charges." Id. at 624.
III. DISCUSSION
Defendant Moore brings four arguments before the Court: (1) that he "was denied effective
counsel during the plea process"; (2) that "[t]he Court failed to establish jurisdiction"; (3) that his
guilty plea "was unknowingly and involuntarily" given; and (4) that he is actually innocent of his
§ 2423(a) convictions for transporting minors to engage in prostitution. ECF No. 67 at 14. The
government contends that these claims are time-barred and that Moore's actual-innocence
argument misrepresents the record. ECF No. 81 at 7-11. The Court agrees with the government.
Moore's claims are untimely by more than five years. And Moore, in his actual-innocence
argument, misinterprets§ 2423(a) and misunderstands actual-innocence doctrine.
A. Moore's Claims Are Untimely
To start, Moore's § 2255 claims arrive years too l!lte. Under AEDPA, a defendant must
bring any§ 2255 claims within one year of when the "judgment of conviction becomes final." 28
U.S.C. § 2255(f)(l). A judgment of conviction is "final" when a defendant's time to file a petition
for a writ of certiorari expires. Clay, 537 U.S. at 525. If an appellate court denies a petition for
rehearing, the defendant has 90 days from the date of that denial to file his certiorari petition with
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the Supreme Court. See Sup. Ct. R. 13. Since the D.C. Circuit denied Moore's petition for
rehearing on May 19, 2014, Moore had until August 17, 2014 to file his certiorari petition. Per
§ 2255(f)(l), Moore was required to file any desired§ 2255 claims by August 17, 2015. See 28
U.S.C. § 2255(f)(l); Clay, 537 U.S. at 525. Moore did not bring these claims until October 25,
2020-five years after this deadline. The Court, accordingly, will deny these untimely claims.
B. Moore's Actual-Innocence Argument Is Meritless
Nonetheless, Moore tries to leap over this procedural hurdle through an actual-innocence
argument. Moore contends that he is actually innocent of his§ 2423(a) convictions "[b]ecause he
had no knowledge of the fact [that] the females were minors when he transported them across state
lines." ECF No. 67 at 22. This argument fails.
First, a § 2423(a) conviction does not require knowledge of a minor's age. The statute
reads:
A person who knowingly transports an individual who has not
attained the age of 18 years in interstate or foreign commerce, or in
any commonwealth, tenitory or possession of the United States,
with intent that the individual engage in prostitution or in
any sexual activity for which any person can be charged with a
criminal offense, shall be fined under this title and imprisoned not
less than 10 years or for life.
18 U.S.C. § 2423(a). The key clause is "knowingly transports an individual who has not attained
the age of 18 years." Id. Moore assumes that "knowingly" modifies both phrases-that to violate
§ 2423(a), a defendant must know (1) that he is transporting an individual and (2) that the
individual is less than 18 years old. See ECF No. 67 at 22; ECF No. 81 at 8-10. Though the D.C.
Circuit has not answered this question, other circuits have. An "overwhelming number" of the
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federal courts of appeals "have concluded that 'knowingly' does not extend to the victim's age."
United States v. Tyson, 947 F.3d 139, 143 (3d Cir. 2020) (citations omitted).'
The Tyson court recognized that Congress's intent in enacting § 2423(a) was to provide
minors with "a heightened protection against sexual exploitation." Id. at 144. Moore's
interpretation would require the Court to ignore Congress having "eliminated offenders'
opportunity to prey on children without consequence by claiming ignorance of the victim's age."
Id. (citing United States v. Jones, 471 F.3d 535, 540 (2006)). Section 2423(a) therefore falls into
a limited category of"special contexts": exceptions to the traditional rule of extending a mens rea
term to all elements of an offense. Id. at 143 (citing Flores-Figueroa v. United States,
556 U.S. 646, 652 (2009)). This Court is persuaded in this interpretation of§ 2423(a) by the
reasoning of the Tyson court and the collective wisdom of its sister circuits.
Second, Moore tries to argue that he is actually innocent based on § 2423's defense
prov1s1on. That subsection states, in full:
In a prosecution under this section based on illicit sexual conduct as
defined in subsection (f)(2), it is a defense, which the defendant must
establish by clear and convincing evidence, that the defendant
reasonably believed that the person with whom the defendant
engaged in the commercial sex act had attained the age of 18 years.
18 U.S.C. § 2423(g). This argument fails because Moore was not prosecuted for an offense
involving "illicit sexual conduct." The statute defines "illicit sexual conduct" as "any commercial
sex act ... with a person under 18 years of age." Id. § 2423(±)(2). But the term "illicit sexual
conduct" appears only in § 2423(b), (c), and (d)-not in § 2423(a). See id. § 2423. Since "the
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See, e.g., United States v. Lacy, 904 F.3d 889, 898 (10th Cir. 2018); United States v. Washington, 743 F.3d 938, 943
(4th Cir. 2014); United States v. Tavares, 705 F.3d 4, 19-20 (1st Cir. 2013); United States v. Daniels, 653 F.3d 399,
410 (6th Cir. 2011); United States v. Cox, 577 F.3d 833, 837-38 (7th Cir. 2009); United States v. Griffith, 284 F.3d
338, 350-51 (2d Cir. 2002); United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001).
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statute's language does not create an affirmative mistake-of-age defense," Tyson, 947 F.3d at 144,
the§ 2423(g) defense would not apply to Moore even ifhe mistook the girls' ages.
Third, the record does not support Moore's mistake-of-age story. Moore's statement of
the offense explained that his victims told him they were 15 and 17 years old. Statement of Offense
1-2. Moore "agree[d] and acknowledge[d]" that this statement of the offense was "true and
accurate" by affixing his signature to the document. Id. at 5. He reiterated that he agreed with this
narrative during his presentence interview. Presentence Investigation Rep. 6, ECF No. 32. And
when denying his appeal, the D.C. Circuit repeated: "Moore acknowledges that the Statement of
the Offense fairly and accurately described his action and involvement in the offenses to which he
pled guilty." United States v. Moore, 555 F. App'x 1, 1 (D.C. Cir. 2014) (per curiam) (italics
removed).
Finally, Moore misunderstands the actual.:.innocence standard. A defendant asserting an
actual-innocence argument must "persuade[] the district court that, in light of ... new evidence,
no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt."
McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329). Actual innocence "means factual
innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. A "prototypical example,"
for instance, "is the case where the State has convicted the wrong person of the crime." Sawyer v.
Whitley, 505 U.S. 333 (1992) (internal quotation marks omitted). Moore does not quarrel that he
transported his victims across state lines and induced them to tum tricks. Nor does he bring new
evidence showing his factual innocence. 2 And "assertions of ... inadequacies on the part
of. .. [his] defense attorney[ ] or the Court at his plea hearing do not constitute new evidence."
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Moore's evidence consists ofa single affidavit. ECF No. 67 at 37-38. In it, he states that he "is innocent of these
charges under the law, because the females involved [led] me to believe they were at least 18." Id. at 37. He then
recalls his attorney's statement that "lack of knowledge of [the victims] being underage was not a defense to the
crime." Id. at 38.
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United States v. Merise, No. 1:06-cr-42-1 (JOB), 2020 WL 1930306, at *4 (D.D.C. Apr. 21, 2020)
(citing Rodriguez v. United States, No. 1:14-cv-4628 (CSH), 2017 WL 6404900, at *40
(S.D.N.Y. Dec. 13, 2017)). Rather, Moore argues that, legally, he is innocent because he thought
the victims were 18 years old. See ECF No. 67 at 25, 37.
Even ignoring the federal judiciary's consensus that§ 2423(a) does not carry a knowledge
requirement, Moore's actual-innocence argument would fail. Cf United States v. Tanguay,
No. 1:08-cr-271-5 (RCL), 2020 WL 2735589, at *3 (D.D.C. May 26, 2020) ("Lack of requisite
intent does not constitute actual innocence."); United States v. Marandola, 372 F. Supp. 3d 7, 16
(D.R.I. 2019) (reasoning that an allegation that the government failed to prove elements of a crime
"goes to legal sufficiency, not factual innocence"). Assertions that a conviction was legally
insufficient are of no moment in this analysis; it is the facts that matter.
* * *
To sum up, Moore's claims are untimely and he has not offered new evidence that he is
actually innocent. Moore brought his§ 2255 motion five years after AEDPA's one-year statute
oflimitations deadline. And his actual-innocence arguments focused on the legal insufficiency of
his convictions, not the factual insufficiency-notwithstanding that his legal argument ignores
decades of circuit authority to the contrary. For these reasons, the Court will DENY his motion to
vacate, set aside, or correct his conviction under 28 U.S.C. § 2255.
IV. CERTIFICATE OF APPEALABILITY
Before appealing a final order denying a § 2255 motion, a court must "issue or deny a
certificate of appealability." Rules Governing § 2255 Proceedings, Rule ll(a). The defendant
may not appeal a final order without this certificate of appealability, which requires "a substantial
showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Doing so requires the
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defendant to demonstrate that reasonable jurists could debate whether "the petition should have
been resolved in a different manner" or that the issues were "adequate to deserve encouragement
to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)) (internal quotation marks omitted). When a district court denies
relief on procedural grounds, the defendant must also show that reasonable jurists would debate
"whether the district court was correct in its procedural ruling." United States v. Baxter,
761 F.3d 17, 26 n.10 (D.C. Cir. 2014) (quoting Slack, 529 U.S. at 484).
Under§ 2255(£)(1), Moore's claims came five years too late. Moore does not indicate that
another§ 2255(f) provision excuses this untimeliness. And his actual-innocence arguments fly in
the face of well-established case law and the record of his case. For these reasons, the Court finds
that reasonable jurists would not debate whether Moore's claims are untimely or that Moore's
claims deserve encouragement to proceed further. Moore has not made a substantial showing of
the denial of a constitutional right. The Court will therefore decline to issue a certificate of
appealability for Moore's claims.
V. CONCLUSION
For these reasons, the Court concludes that Moore's motion and the record in his case do
not show his entitlement to relief. The Court declines to hold an evidentiary hearing, see
28 U.S.C. § 2255(b), and will DENY Moore's§ 2255 motion. No certificate of appealability shall
issue. A separate order consistent with this memorandum opinion shall issue this date.
Date: July ~ 2022
Royce C. Lamberth
United States District Judge
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