Moss v. Warden

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DAKOTA R. MOSS, )

)

Petitioner )

)

) Case No. 20-CV-358-DWD

vs. )

)

UNITED STATES OF AMERICA, )

)

Respondent.

MEMORANDUM & ORDER

DUGAN, District Judge:

Petitioner Dakota R. Moss and a friend stole 39 firearms from a farm-supply store

and conspired to sell them to, among others, protestors in Ferguson, Missouri. Following

his arrest, Moss pled guilty to stealing firearms from a federal firearms licensee in

violation of 18 U.S.C. § 922(u) (Count I); conspiracy to interfere with commerce by

violence against person or property in violation of 18 U.S.C. § 371 (“Hobbs Act

Conspiracy”) (Count III); carry and use of a firearm during a crime of violence in violation

of 18 U.S.C. § 924(c) (Count IV); and felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1) (Count VI).

At issue is whether Moss’s § 924(c) conviction for using a firearm during a crime

of violence, which was predicated on conspiracy to commit Hobbs Act robbery, is no

longer valid under United States v. Davis, 139 S. Ct. 2319 (2019) and United States v. Taylor,

142 S. Ct. 2015 (2022). (Doc. 1, p. 2; Doc. 4). Moss, in his pro se petition, also claims that the

“overt acts” and “object of conspiracy” stated in the Superseding Indictment as to Count

III of the Superseding Indictment (conspiracy to commit Hobbs Act robbery) “do not

meet the elements required to sustain a Hobbs Act Robbery,” and that counsel was

ineffective for failing to explain this deficiency in the Superseding Indictment. (Doc. 1, p.

4).

I. BACKGROUND1

Moss and a friend stole a pickup truck, used it to ram a gate outside a farm-supply

store, smashed a window to gain access, and stole 39 firearms, candy, and soda. Moss

and his friend were arrested the following day and confessed to conspiring to sell the

stolen firearms either to protestors in Ferguson, Missouri, or to “other criminal elements”

in Centralia, Illinois.

In connection with these events, Moss was arrested and charged with the

following crimes by superseding indictment: stealing firearms from a federal firearms

licensee in violation of 18 U.S.C. § 922(u) (Count I); carry and use of a firearm during a

crime of violence in violation of 18 U.S.C. § 924(c) (Count II); conspiracy to interfere with

commerce by violence against person or property in violation of 18 U.S.C. § 371 (“Hobbs

Act Conspiracy”) (Count III); carry and use of a firearm during a crime of violence in

violation of 18 U.S.C. § 924(c) (Count IV); possession of stolen firearms in violation of 18

U.S.C. § 922(j) (Count V); and felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1) (Count VI) (Crim. Case Doc. 24).

1 References to Moss’s underlying criminal case, United States v. Moss, 14-cr-30208-NJR-1, take the form:

Crim. Case --.

On April 29, 2015, Moss entered an unconditional guilty plea pursuant to a written

plea agreement to Counts I, III, IV, and VI of the superseding indictment (Crim. Case Doc.

40). Counts II and V were dismissed on a motion of the Government (Crim. Case Doc.

50). On September 11, 2015, Moss was sentenced to 248 months' imprisonment (120

months on Count I and 60 months on Count III, to run concurrent to each other; 68 months

on Count VI, to run consecutive to Counts 1 and 3; and 60 months on Count IV, to run

consecutive to Count 6) (Crim. Case Doc. 50). Judgment was entered on September 14,

2015 (Crim. Case Doc. 52) As is relevant to the instant petition, Moss’s § 924(c) conviction

and sentence for using and carrying a firearm during a crime of violence (Count IV), was

predicated on conspiracy to commit Hobbs Act robbery (Count III) (Crim. Case Docs. 24,

40).

Moss, proceeding pro se, filed a post-conviction petition under 28 U.S.C. §

2255, arguing that his § 924(c) conviction should be vacated because, under United States

v. Davis, 139 S. Ct. 2319 (2019), conspiracy to commit Hobbs Act robbery no longer

constitutes a crime of violence.2 Moss also alleges there was a defect in the Superseding

Indictment as to Count III (conspiracy to commit Hobbs Act robbery) and that counsel

was ineffective for failing to identify and explain that alleged deficiency.

Because Moss raised an argument under Davis, pursuant to the Court’s policy at

the time, the Court appointed the Federal Public Defender’s Office to file an amended

2 In Davis, the Supreme Court held that § 924(c)'s residual clause is unconstitutionally vague. 139 S. Ct. at

2323–24, 2336. Thus, after Davis, an offense constitutes a crime of violence under § 924(c) only if it meets

the definition set forth by the elements clause.

petition as to the Davis claim. The Federal Public Defender filed an amended petition on

Moss’s behalf, expanding on this argument and expressly stating that it was appointed

for the sole purpose of addressing Moss’s claim under Davis. (Doc. 4) (“This amended

petition is intended to amend only the Davis claim and is not intended to address, cede,

or waive any other argument presented in Mr. Moss’s original petition.”). Pursuant to the

Court’s briefing Order, the Government then had 45 days to respond to all of Petitioner’s

arguments, and Petitioner then had 30 days to file a reply. (Doc. 2).

On October 13, 2020, the Government filed its response. (Doc. 8). In its response,

the Government acknowledges that, following Davis, the definition of a

“crime of violence” under subsection B of 18 U.S.C. § 924(c) (the “residual clause”) is

unconstitutionally vague. As such, the Government concedes that if Moss’s § 924(c)

conviction was premised on the residual clause, Moss would be entitled to relief. The

Government notes, however, that Davis did not invalidate subsection A of 18 U.S.C. §

924(c) (the “elements clause”). As a result, the Government argues, Moss’s § 924(c)

conviction, premised on conspiracy to commit Hobbs Act robbery, could be sustained

under the elements clause. Additionally, the Government argues that because Moss

stipulated to certain facts in his plea agreement, those facts could serve as a basis for his

§ 924(c) conviction. The Government does not address Moss’s pro se argument regarding

defects in the Superseding Indictment as to Count III. The Office of the Federal Public

Defender filed a reply, further addressing the Davis argument on October 20, 2020 (Doc.

9).

After briefing was completed, the Supreme Court issued its decision in in United

States v. Taylor, 142 S. Ct. 2015 (2022). In Taylor the Court held that attempted Hobbs Act

robbery does not qualify as a “crime of violence” under the elements clause of § 924(c).

Given that the Government’s initial briefing argued that conspiracy to commit Hobbs Act

robbery qualified as a “crime of violence” under the elements clause, the Court allowed

the parties to provide supplemental briefing addressing the impact of Taylor, if any, on

the instant case.

The Government filed a supplemental brief on September 22, 2023. (Doc. 21). In its

supplemental briefing, the Government argues, for the first time, that Moss is precluded

from bringing a collateral attack premised on Davis or Taylor because he entered into an

unconditional plea agreement. Alternatively, the Government contends that Moss’s

petition should be denied because, in his plea agreement, Moss admitted to possessing a

firearm in furtherance of substantive offenses that constitute crimes of violence (and

therefore Moss cannot show actual innocence) and because Moss’s claims are

procedurally defaulted.

The Office of the Federal Public Defender filed a supplemental brief as well,

arguing that the Supreme Court’s decisions in Davis and Taylor make clear that

conspiracy to commit Hobbs Act robbery is not a crime of violence. (Doc. 22). Counsel

also suggests that the Government waived or forfeited arguments as to Moss’s

unconditional plea, the lack of actual innocence, or procedural default by not raising these

arguments in its initial briefing. Additionally, counsel argues that the Petition could not

be denied on the merits absent additional briefing on Moss’s claim as to Count III, which

the Office of the Public Defender was not appointed to address. (Doc. 23).

In reviewing the relevant pleadings, the Court recognized that certain case

management orders may have created confusion regarding briefing as to Moss’s pro se

claim regarding Count III. Accordingly, the Court ordered the parties to file one last

round of briefing to fully develop the record on that claim. The Government filed its

supplemental briefing on November 30, 2023 (Doc. 36), and Moss, through a CJA

attorney, filed his supplemental briefing on December 19, 2023 (Doc. 37).3

II. DISCUSSION

A. Preliminary Matters

1. Unconditional Guilty Plea – Forfeiture or Waiver

As a preliminary matter, the Court will address whether the Government waived

or forfeited4 its argument as to the preclusive effect of Moss’s unconditional plea. The

Government’s initial response addressed the merits of Moss’s § 924(c) argument. The

Government did not raise any arguments as to Moss’s unconditional guilty plea.5

“When a defendant enters an unconditional guilty plea, he waives all

nonjurisdictional defects arising before his plea[.]” United States v. Combs, 657 F.3d 565,

568 (7th Cir. 2011). Some circuits treat unconditional pleas as a procedural waiver, “which

3 The Office of the Federal Public Defender could not brief this claim due to a conflict. Accordingly, the

Court appointed a CJA Panel attorney to represent Moss. (Doc. 24).

4 As the Seventh Circuit has explained, waiver “means the intentional relinquishment of a known right,”

while forfeiture means “the failure to timely assert a right.” Kaczmarek v. Rednour, 627 F.3d 586 (7th Cir.

2010).

5 The Court does not reach the Government’s arguments as to actual innocence or procedural default. As

such, the Court need not assess whether these arguments have been waived or forfeited.

can in turn be waived or forfeited by the government[.]” United States v. Adigun, 703 F.3d

1014, 1022 (7th Cir. 2012). The Seventh Circuit is not one of those courts. The Seventh

Circuit has said that because an unconditional guilty plea resolves the issue of factual

culpability, it impacts subject matter jurisdiction. Combs, 657 F.3d at 568-71. As a result,

the preclusive effect of an unconditional guilty plea cannot be waived or forfeited. Id.

Thus, “even when the government fails to assert the waiver effect of a defendant’s

unconditional plea, the appellate court has an independent obligation to reject the appeal

because it no longer has subject-matter jurisdiction.” Adigun, 703 F.3d at 1022.

Accordingly, if Moss’s unconditional guilty plea is valid and enforceable, the Court lacks

jurisdiction to consider any argument raised by Moss involving nonjurisdictional defects

arising before his plea.

2. Validity of Guilty Plea

In the instant case, the Court need not independently analyze the validity of

Moss’s unconditional guilty plea for two reasons. First, Moss does not raise any argument

contesting the validity of his plea agreement. Second, the Seventh Circuit has already

determined that Moss’s guilty plea and the waivers contained in his plea agreement are

valid. (Crim Case, Doc. 69-1, p. 2) (“[Moss’s] guilty plea is valid, and thus, so is the appeal

waiver.’).

B. Petitioner’s Claims

1. Claim: Hobbs Act Conspiracy, the Predicate Offense for Moss’s § 924(c)

Conviction, is not a Crime of Violence6

6 This claim is based on the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019).

As such, it is timely under 28 U.S.C. § 2255(f)(3).

Moss contends that, considering the Supreme Court’s decisions in Davis and

Taylor, conspiracy to commit Hobbs Act robbery is no longer a crime of violence.

Although the Seventh Circuit has not spoken directly on this issue, the Court agrees. See

e.g., Brown v. United States, 942 F.3d 1069, 1075–76 (11th Cir. 2019) (collecting cases); Hall

v. United States, 58 F.4th 55, 62–64 (2d Cir. 2023) (under Davis and Taylor neither Hobbs

Act conspiracy nor attempted Hobbs Act robbery is a valid predicate crime); United States

v. Green, 67 F.4th 657, 662–63 (4th Cir. 2023) (same).

The Government, however, correctly contends that Moss’s challenge to his § 924(c)

conviction is precluded by his unconditional plea agreement. The Seventh Circuit

addressed the issue of waiver, as it applies in this scenario, in Grzegorczyk v. United States,

997 F.3d 743 (7th Cir. 2021). In Grzegorczyk, the defendant pled guilty to one count of

murder-for-hire and one count of possession of a firearm in furtherance of a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A). Id. at 745. Pursuant to his plea agreement,

Grzegorczyk waived, among other rights, the right to “all appellate issues that might

have been available if he had exercised his right to trial.” Id.7 Grzegorczyk could only

7 Like Grzegorczyk, Moss waived “all appellate issues that might have been available if [he] had exercised

the right to trial.” (Crim. Case Doc. 40, p. 12). He also waived “the right to contest any aspect of the

conviction and sentence that could be contested under Title 18 or Title 28, or under any other provision of

federal law, except that if the sentence imposed is in excess of the Sentencing guidelines as determined by

the Court (or any applicable statutory minimum, whichever is greater)[,] while reserving the right to appeal

the reasonableness of his sentence. (Crim. Case. Doc. 40, p. 13). The Court notes that, pursuant to the plea

agreement, Moss’s waiver of his right to appeal or bring collateral challenges does not apply to “any

subsequent change in interpretation of the law by the United States Supreme Court or the United States

Court of Appeals for the Seventh Circuit that is declared retroactive by those Courts and that renders the

defendant actually innocent…” (Crim Case Doc. 40, p. 13). But, as is discussed more fully below, given

the admissions in Moss’s stipulation of facts (Crim Case Doc. 41, pp. 2-4) (admitting to a completed Hobbs

Act robbery and to possessing a gun in furtherance of the same), Moss cannot establish actual innocence.

appeal the validity of his guilty plea and the sentence imposed. Id. After his sentencing,

the Supreme Court decided Johnson v. United States, invalidating as unconstitutionally

vague the definition of a “violent felony” under the residual clause of the Armed Career

Criminal Act, see 576 U.S. 591, 606 (2015). The Supreme Court subsequently extended this

reasoning to the residual clause of § 924(c) in Davis, holding that the definition of “crime

of violence” in that statute's residual clause was unconstitutionally vague. Grzegorczyk

filed a petition under 28 U.S.C. § 2255 seeking relief from his § 924(c) conviction in light

of Johnson and Davis. Grzegorczyk, 997 F.3d at 746.

The Seventh Circuit held that Grzegorczyk waived his claim. In reaching this

decision, the Appellate Court explained that an unconditional plea of guilty is sufficient

to waive a defendant’s right to contest the proper interpretation of the statute of

conviction. Grzegorczyk, 997 F.3d at 748. Because Grzegorczyk was challenging an issue

of statutory construction – whether murder-for-hire was a “crime of violence” under §

924(c)’s elements clause – his unconditional guilty plea waived that issue.

The same is true in the instant case. Moss asserts that conspiracy to commit Hobbs

Act robbery does not constitute a crime of violence under § 924(c). But Moss’s argument

is waived by his unconditional plea agreement. See e.g.,

Muratovic v. United States, No. 193341, 2022 WL 1741615, at *1 (7th Cir. May 31, 2022)

(reiterating that an unconditional guilty plea waives any contention that an indictment

fails to state an offense); Oliver v. United States, 951 F.3d 841, 844-45 (7th Cir. 2020)

(unconditional guilty plea barred defendants from arguing that their predicate crime of

violence for a § 924(c) conviction no longer qualified after Davis); United States v. Carson,

855 F.3d 828, 830-31 (7th Cir. 2017) (defendant waived the right to challenge whether his

predicate crime of violence qualified under the residual clause); United States v. Wheeler,

857 F.3d 742, 744-45 (7th Cir. 2017) (same); Davila v. United States, 843 F.3d 729, 731-32 (7th

Cir. 2016) (same).8

One final matter warrants the Court’s attention: Pursuant to the plea agreement,

Moss’s waiver of his right to appeal or bring collateral challenges does not apply to “any

subsequent change in interpretation of the law by the United States Supreme Court or

the United States Court of Appeals for the Seventh Circuit that is declared retroactive by

those Courts and that renders the defendant actually innocent…” (Crim Case Doc. 40, p.

13) (emphasis added). In the instant case, in his stipulation of facts, Moss admitted to

committing a completed Hobbs Act robbery and to possessing a gun in furtherance of the

same. (Crim Case Doc. 41, pp. 2-4). Hobbs Act robbery is still a crime of violence.

Accordingly, Moss’s admissions preclude a finding of actual innocence and provide a

basis for the disputed 924(c) conviction. See United States v. Starwalt, 701 F. App'x 508, 510

(7th Cir. 2017) (fact that defendant admitted “to the robberies,” provided a basis for a

924(c) conviction even though defendant did not plead guilty to Hobbs Act robbery);

Davila v. United States, 843 F.3d 729 (7th Cir. 2016) (a defendant’s admissions to actions

and substantive offenses, even where defendant did not plead guilty to the substantive

offenses, are sufficient to provide a basis for a §924(c) conviction). See also Oliver v. United

States, 951 F.3d 841, 847 (7th Cir. 2020) (rejecting defendants’ argument that enforcing

8 In light of the Court’s finding as to the preclusive effect of Moss’s unconditional plea agreement, the

Court need not address the Government’s arguments as to actual innocence or procedural default.

collateral-attack waivers in their plea agreements would be a miscarriage of justice due

to actual innocence of their § 924(c) convictions, because (1) the government's only

arguable wrongdoing “was failing to anticipate changes in the Supreme Court's

jurisprudence” and (2) the government could have premised the convictions on

uncharged conduct).

2. Claim: Defect in the Indictment and Related Ineffective Assistance of

Counsel as to Count III.

As to Count III (conspiracy to commit Hobbs Act robbery), Moss alleges that the

“overt acts” and the “object of the conspiracy” listed in the Superseding Indictment “do

not meet the elements required to sustain a Hobbs Act robbery” because they contain “no

real or attempted force, threats, or violence against another person.” (Doc. 1, p. 4)

(emphasis added). Moss further alleges that Dan Cronin, the Federal Public Defender

representing Moss at the time, failed to explain the “force, threats, or violence”

requirements to him, and that this failure establishes he received ineffective counsel.

The Government contends that Moss’s claim as to Count III must be rejected

because it is untimely. The Court agrees. Moss’s claim as to Count III is barred by the

applicable one-year statute of limitations under 28 U.S.C. § 2255(f)(1)-(4). To that end, the

Seventh Circuit dismissed Moss’s appeal on June 17, 2016. (Crim Case Doc. 69). As a

result, Moss’s conviction was final in September 2016. Moss did not file his § 2255 petition

until April 16, 2020, making it untimely under § 2255(f)(1). In addition, none of the other

possible exceptions set forth in § 2255(f)(2)-(4) apply to this claim.

The fact that Moss is asserting a separate claim that is timely does not alter the

Court’s analysis as to this claim. “[T]he timeliness of each claim asserted in a section

2255 motion ... must be considered independently.” Davis v. United States, 817 F.3d 319,

328 (7th Cir. 2016). “The simple fact that [the petitioner] might have one timely claim to

make under section 2255 based on a Supreme Court precedent issued years after his

conviction otherwise became final does not allow him to tack on additional, otherwise

untimely claims to that one timely claim.” Id. As a result, the claims regarding Count III

are untimely under § 2255(f)(1) and must be dismissed.

In addition, even if Moss’s Count III claim was timely, it would be precluded by

his unconditional guilty plea. Moss claims that Count III of the Superseding Indictment

is defective because it does not state an offense and that counsel was ineffective for failing

to identify the alleged defect. Such a claim pertains to a pre-plea matter and is

nonjurisdictional. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d

860 (2002); United States v. Perez, 673 F.3d 667, 670 (7th Cir. 2012); United States v. Lowe,

512 Fed. Appx’ 628, 630 (7th Cir. 2013). Because Moss’s claim as to Count III pertains to

an alleged nonjurisdictional defect arising before Moss’s plea, it is barred by his

unconditional guilty plea. See United States v. Combs, 657 F.3d 565, 568 (7th Cir. 2011). See

also U.S. v. Wheeler, 857 F.3d 742, 745 (7th Cir. 2017), cert. denied, 138 S. Ct. 640, 199 L. Ed.

2d 543 (2018) (“[A]n unconditional guilty plea waives any contention that an indictment

fails to state an offense.”).

Finally, Moss’s contention regarding alleged defects in Count III of the

Superseding Indictment is without merit. Moss contends that Count III is defective

because it did not allege a completed Hobbs Act robbery. But Moss was not charged with

a substantive Hobbs Act violation. Moss was charged with conspiracy to commit Hobbs

Act robbery, and the Superseding Indictment alleges each element of a Hobbs Act

conspiracy. (Crim. Case Doc. 24); 18 U.S.C. § 371.

Moss also appears to argue that Count III is defective because it does not allege

the use of physical violence against a person. But Hobbs Act robbery does not require the

use or threat of force or violence against a person. “[A] person may commit Hobbs Act

robbery by threatening physical violence against any ‘person or property.’” Bridges v.

United States, 991 F.3d 793, 800 (7th Cir. 2021) (emphasis added). See also United States v.

Chapelle, 41 F.4th 102, 109 (2nd Cir. 2022) (Hobbs Act robbery applies to “force or threats

against property, even in the absence of ‘proximity between the person from whom the

taking occurs and the threat to property.’” (quoting United States v. Eason, 953 F.3d 1184,

1190-91 (11th Cir. 2020).

For these reasons, Moss’s arguments regarding alleged defects in Count III are

without merit. Moss cannot establish that his attorney was ineffective for failing to

identify and explain a “defect” in the Superseding Indictment that did not exist. Thus,

the alleged defect in the Superseding Indictment does not provide a basis for an

ineffective assistance of counsel claim.9

III. CONCLUSION

9 The Government raises several additional arguments in opposition to Moss’s claim as to Count III. Given

the Court’s findings herein, it will not address those additional arguments.

For the reasons set forth above, Petitioner Dakota R. Moss’s Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2255 is DENIED. This case is DISMISSED with

prejudice and the Clerk is DIRECTED to close the case and enter judgment accordingly.

The Court declines to issue a certificate of appealability.

SO ORDERED.

Dated: February 12, 2024

/s David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge