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

. 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

(a), and one count of simple assault, violating

(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.

.

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.

1 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

(a)(l); (2) transporting minors to engage

in prostitution, violating

(a); (3) simple assault, violating

(a)(l); and (4) witness tampering, violating

(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,

(D.C. Cir. 2014). On May 19, 2014, the D.C. Circuit denied Moore's

petition for rehearing en bane.

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.

2 II. LEGALSTANDARD

Under

, 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."

(a). The prisoner bears the burden to prove his right to relief by a preponderance

of the evidence. United States v. Baugham,

(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."

(b).

Per the Antiterrorism and Effective Death Penalty Act ("AEDP A"), § 2255 motions are

subject to a one-year statute of limitations.

(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."

In most cases, the limitations period ends when the

"judgment of conviction becomes final." Dodd v. United States,

(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,

(2003).

The Supreme Court has left open a "gateway" to this statute of limitations-actual

innocence. McQuiggin v. Perkins,

(2013). If a defendant can prove that he is

actually innocent of the charged offense, procedural bars and AEDPA's statute oflimitations will

3 not apply.

But "tenable actual-innocence gateway pleas are rare."

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,

(D.C. Cir. 2016) (quoting Schlup v. Delo,

(1995)) (internal quotation marks

omitted). Actual innocence "means factual innocence, not mere legal insufficiency." Bousley v.

United States,

(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."

.

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."

(f)(l). A judgment of conviction is "final" when a defendant's time to file a petition

for a writ of certiorari expires. Clay,

. 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

4 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

(f)(l); Clay,

. 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.

(a). The key clause is "knowingly transports an individual who has not attained

the age of 18 years."

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

5 federal courts of appeals "have concluded that 'knowingly' does not extend to the victim's age."

United States v. Tyson,

(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,

(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.

at 143 (citing Flores-Figueroa v. United States,

(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.

(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."

§ 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

1 See, e.g., United States v. Lacy,

(10th Cir. 2018); United States v. Washington,

(4th Cir. 2014); United States v. Tavares,

(1st Cir. 2013); United States v. Daniels,

(6th Cir. 2011); United States v. Cox,

(7th Cir. 2009); United States v. Griffith,

(2d Cir. 2002); United States v. Taylor,

(9th Cir. 2001).

6 statute's language does not create an affirmative mistake-of-age defense," Tyson,

,

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,

(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,

(quoting Schlup,

). Actual innocence "means factual

innocence, not mere legal insufficiency." Bousley,

. A "prototypical example,"

for instance, "is the case where the State has convicted the wrong person of the crime." Sawyer v.

Whitley,

(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."

2 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.

7 United States v. Merise, No. 1:06-cr-42-1 (JOB),

, at *4 (D.D.C. Apr. 21, 2020)

(citing Rodriguez v. United States, No. 1:14-cv-4628 (CSH),

, 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),

, at *3 (D.D.C. May 26, 2020) ("Lack of requisite

intent does not constitute actual innocence."); United States v. Marandola,

(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

.

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."

(c). Doing so requires the

8 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,

(2000) (quoting Barefoot v. Estelle,

, 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,

, 26 n.10 (D.C. Cir. 2014) (quoting Slack,

).

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

(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

9