                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


STACY MOORE,
    Petitioner.
           v.                                            Civil Action No. 11-1947 (JDB)
                                                         Criminal Action No. 08-284 (JDB)
UNITED STATES OF AMERICA,
     Respondent.


                                 MEMORANDUM OPINION

       This case is before the Court on petitioner Stacy Moore’s motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court will

deny the petition.

       In 2008, Moore was arrested and indicted for unlawful possession of crack cocaine,

possession of a firearm by a felon, and a number of other offenses. Moore pled guilty to unlawful

possession with intent to distribute 50 grams or more of cocaine base (also known as crack) in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (2006), and 18 U.S.C. § 2, and unlawful

possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g). See Plea

Agreement [Docket Entry 30] ¶ 1 (Mar. 20, 2009). He acknowledged responsibility for 59.6

grams of crack cocaine, 516 grams of cocaine powder, and 33.5 grams of heroin. See id. ¶ 2; see

also Factual Proffer [Docket Entry 31] at 2 (March 20, 2009). Moore also “agree[d] to waive

certain rights afforded to [him] by the Constitution,” including “the right to confront and cross-

examine witnesses.” Plea Agreement ¶ 6. The plea agreement stipulated “that the mandatory

minimum sentence of 120 months is the appropriate sentence for the offenses.” Id. ¶ 3. The

Court accepted the plea agreement and, on June 19, 2009, imposed concurrent sentences of 120

months in prison for the two convictions followed by a period of supervised release, and imposed


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a fine and special assessment. On November 3, 2011, Moore filed this pro se motion to vacate,

set aside or correct his sentence [Docket Entry 54].

       Moore raises two arguments in his petition: first, that he is “[a]ctually [i]nnocent of

his . . . crack cocaine sentence” based on the Fair Sentencing Act, which is “retroactive,” and

second, that “his controlled substance offense is unconstitutional” because he “pled guilty to a

substance that was never tested by a professional expert chemist,” and because he “had a Sixth

Amendment Right to have the drugs tested and verified in a court of law, under oath,” under the

Supreme Court’s decision in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). See Def.’s

Mot. to Vacate [Docket Entry 54] at 2, 3 (Nov. 3, 2011).

       The Court has separately addressed Moore’s Fair Sentencing Act argument at length in

resolving Moore’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). See No. 08-cr-

284 [Docket Entry 62] (Mar. 18, 2013). Briefly, the D.C. Circuit has squarely held that that the

FSA “is not retroactive” and a defendant who was “sentenced prior to the August 3, 2010 date of

the Act’s enactment” “cannot benefit from [it].” See United States v. Bigesby, 685 F.3d 1060,

1066 (D.C. Cir. 2012) (internal quotation marks omitted); see also United States v. Fields, 699

F.3d 518, 522 (D.C. Cir. 2012) (“the FSA is inapplicable to offenders, like Fields, who were

sentenced before passage of the statute”). Because Moore was sentenced on June 19, 2009, the

FSA does not apply to him. Further, the Court notes that even if the FSA did apply to Moore, his

sentence would still be permissible—that is to say he would not be “actually innocent” of his 10-

year sentence. As modified by the FSA, the statute Moore pled guilty to violating authorizes a

sentence of “not . . . less than 5 years and not more than 40 years” for possession with intent to

distribute more than 28 grams (but less than 280 grams) of crack cocaine. See 21 U.S.C.




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§ 841(b)(1)(B)(iii) (2012). Moore’s 10-year sentence falls within that range. For these two

reasons, the FSA offers no basis for vacating Moore’s conviction or sentence.

        Moore’s second argument is also unavailing. He stipulated to the identity and amount of

the drugs and waived his rights, including specifically his Sixth Amendment right to confront

any witnesses, including lab analysts, who testify against him in court. He does not now

challenge the validity of the colloquy or the process that resulted in his plea, nor the knowing and

voluntary nature of the plea. Given this admission and his waiver of the relevant rights—and

absent any reason to doubt the validity of the plea agreement—Moore’s conviction is valid. See

McCarthy v. United States, 394 U.S. 459, 466 (1969) (“guilty plea is an admission of all the

elements of a formal criminal charge” and “[a] defendant who enters such a plea simultaneously

waives several constitutional rights, including his privilege against compulsory self-

incrimination, his right to trial by jury, and his right to confront his accusers”).1

        Additionally, Moore’s argument is time-barred. Normally, a section 2255 petition can be

brought within one year of “the date on which the judgment of conviction becomes final.” 28

U.S.C. § 2255(f)(1). The Court entered judgment on June 22, 2009, and Moore did not take an

appeal. Accordingly, his judgment became final in July 2009. See Fed. R. App. P. 4(b)(1)(A).

Moore filed this motion on November 3, 2011, more than two years later. Moore argues that the

one-year period should instead run from the date of the Supreme Court’s 2011 decision in

Bullcoming. Where a section 2255 motion is based on a right “newly recognized by the Supreme

Court,” the one-year period runs from “the date on which the right asserted was initially

recognized.” 28 U.S.C. § 2255(f)(3). The right Moore asserts, however, was recognized (at the


1
  Moore’s argument that the substances were never tested by a professional expert chemist is also incorrect as a
factual matter. The government attaches a chemical analysis reflecting exactly the identity of the drugs and the
amounts laid out in the factual proffer, including 59.6 grams of cocaine base. See Laboratory Report [Docket Entry
61-1] (Nov. 27, 2012).

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latest) in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which held that, where the

government introduces a lab report at trial, a defendant has a Sixth Amendment right to confront

the lab analysts who made the statements in the report. In Bullcoming, the Supreme Court simply

applied that rule to a more complicated factual situation—not implicated by petitioner’s

argument—where an analyst who was not the lab report’s author testified at trial. See

Bullcoming, 131 S. Ct. at 2710. Moore’s argument—that the conviction is flawed because no

analyst testified at all—is based purely on the principle of Melendez-Diaz. Because Bullcoming

did not “initially recognize[]” any right that formed the basis of Moore’s motion, and because he

filed this motion more than a year after the decision in Melendez-Diaz, 18 U.S.C. § 2255(f) bars

his Sixth Amendment argument.

         Accordingly, the Court will deny Moore’s motion.2 A separate order has been issued.


                                                                                             /s/
                                                                                         JOHN D. BATES
                                                                                    United States District Judge
Dated: March 18, 2013




2
 The petition does not raise any factual issues and “the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief,” 28 U.S.C. § 2255(b). Hence, the Court will deny the motion without
holding an evidentiary hearing.

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