Case: 18-15265 Date Filed: 03/26/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15265 Non-Argument Calendar ________________________
D.C. Docket No. 8:12-cr-00228-RAL-TBM-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
CALVIN JOSEPH MOORE,
Defendant–Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(March 26, 2020)
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-15265 Date Filed: 03/26/2020 Page: 2 of 6
Calvin Moore, a federal prisoner serving a 120-month sentence for
attempting to possess cocaine with intent to distribute, appeals the district court’s
sua sponte denial of his post-conviction discovery motion. Moore argues that he
needed the discovery to make a prima facie showing for leave from this Court to
file a successive 28 U.S.C. § 2255 petition, so that he could file a Fourth
Amendment claim under the Supreme Court’s decision in Carpenter v. United
States, 138 S. Ct. 2206 (2018). We affirm the district court’s denial of Moore’s
motion for discovery.
Moore was convicted of conspiracy to distribute cocaine in 2012 and was
sentenced to a 120-month prison term. We affirmed Moore’s conviction on
appeal. See generally United States v. Moore, 535 F. App’x 795 (11th Cir. 2013).
Since then, Moore has repeatedly attempted to collaterally attack his conviction.
He filed a motion under 28 U.S.C. § 2255 in 2014, alleging that law enforcement
violated his Fourth Amendment rights by conducting a warrantless search of his
cell phone, relying on the Supreme Court’s then-recent decision in Riley v.
California, 573 U.S. 373 (2014). The district court denied Moore’s petition,
determining that his claim was procedurally barred because he did not raise it on
direct appeal and denying a certificate of appealability. We denied a COA for the
same reason.
2 Case: 18-15265 Date Filed: 03/26/2020 Page: 3 of 6
Following the denial of his 2014 petition, Moore has filed three pro se
discovery motions. All three motions were filed with the explicit purpose of
gathering evidence to support a Carpenter-based Fourth Amendment claim that
would enable him to file a second or successive section 2255 petition. The district
court, however, denied each of Moore’s three motions sua sponte without
providing any explanation.
In Moore’s third motion—the denial of which is before us—Moore
requested that the government provide: (1) all reports prepared by law enforcement
for the confidential informant in his case; (2) all warrants used during the
government’s investigation; (3) all discovery related to his cell phone, including
his physical location; (4) all subpoenaed or court-ordered courts for his phone; and
(5) all government trial exhibits related to subpoenaed phone tolls from his phone.
On appeal, he argues that the district court erred in denying his motion because the
evidence he requested was needed to make a prima facie showing for leave from
this Court to file a successive section 2255 motion to assert his Carpenter claim.
He claims that with the discovery material, “there is an overwhelming reasonable
probability that the jury verdict would have been not guilty.” The government, in
turn, responds that the district court did not have jurisdiction because this Court
had not granted Moore leave to file a successive section 2255 petition and,
therefore, there was no live case before the district court. It also argues that, even
3 Case: 18-15265 Date Filed: 03/26/2020 Page: 4 of 6
if the district court had jurisdiction, Moore did not establish good cause for
discovery.
We review de novo questions concerning subject matter jurisdiction of the
district court, United States v. Grimon, 923 F.3d 1302, 1305 (11th Cir.), and
review a district court’s denial of a post-conviction discovery motion for abuse of
discretion, United States v. Espinosa–Hernandez, 918 F.2d 911, 913 (11th Cir.
1990). We construe pleadings filed by pro se parties liberally. See Sanders v.
United States, 113 F.3d 184, 187 (11th Cir. 1997).
Collateral attacks on the legality of a federal sentence typically must be
brought under a section 2255 motion. Darby v. Hawk-Sawyer, 405 F.3d 942,
944 (11th Cir. 2005). A federal prisoner who fails to raise a claim on direct appeal
may be procedurally barred from raising the claim in a section 2255 motion, absent
a showing of cause that excuses the default and prejudice, or actual innocence.
Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). A federal prisoner
who wishes to file a successive section 2255 motion is required to move the court
of appeals for an order authorizing the district court to consider such a motion. See
28 U.S.C. § 2255(h), cross-referencing 28 U.S.C. § 2244. Absent prior
authorization from a court of appeals, a district court lacks jurisdiction to consider
a successive section 2255 motion. United States v. Holt, 417 F.3d 1172,
1175 (11th Cir. 2005).
4 Case: 18-15265 Date Filed: 03/26/2020 Page: 5 of 6
In Carpenter, the Supreme Court held that an individual maintains a
legitimate expectation of privacy in his physical movements captured by wireless
carriers—which collect a user’s location from a time-stamped record known as
cell-site location information—and, therefore, the government needs a warrant
supported by probable cause to access that information. See 138 S. Ct. at 2211,
2217, 2219, 2220–21, 2223.
We have not had the occasion to address the specific issue of whether a
district court has jurisdiction over a federal prisoner’s post-conviction discovery
motion in anticipation of his filing a section 2255 motion or a successive section
2255 motion. 1 But we do not need to resolve that thorny question to address the
merits of Moore’s appeal. Even assuming, arguendo, that the district court had
jurisdiction to decide Moore’s triad of discovery motions, we cannot conclude that
it abused its discretion in denying Moore’s third motion. The Supreme Court’s
opinion in Carpenter concerned a person’s expectation of privacy in his physical
movements gathered by wireless carriers. That holding does not affect Moore’s
conviction. None of the trial evidence that Moore references specifically shows
1 We note that, in United States v.
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Case: 18-15265 Date Filed: 03/26/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15265 Non-Argument Calendar ________________________
D.C. Docket No. 8:12-cr-00228-RAL-TBM-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
CALVIN JOSEPH MOORE,
Defendant–Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(March 26, 2020)
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-15265 Date Filed: 03/26/2020 Page: 2 of 6
Calvin Moore, a federal prisoner serving a 120-month sentence for
attempting to possess cocaine with intent to distribute, appeals the district court’s
sua sponte denial of his post-conviction discovery motion. Moore argues that he
needed the discovery to make a prima facie showing for leave from this Court to
file a successive 28 U.S.C. § 2255 petition, so that he could file a Fourth
Amendment claim under the Supreme Court’s decision in Carpenter v. United
States, 138 S. Ct. 2206 (2018). We affirm the district court’s denial of Moore’s
motion for discovery.
Moore was convicted of conspiracy to distribute cocaine in 2012 and was
sentenced to a 120-month prison term. We affirmed Moore’s conviction on
appeal. See generally United States v. Moore, 535 F. App’x 795 (11th Cir. 2013).
Since then, Moore has repeatedly attempted to collaterally attack his conviction.
He filed a motion under 28 U.S.C. § 2255 in 2014, alleging that law enforcement
violated his Fourth Amendment rights by conducting a warrantless search of his
cell phone, relying on the Supreme Court’s then-recent decision in Riley v.
California, 573 U.S. 373 (2014). The district court denied Moore’s petition,
determining that his claim was procedurally barred because he did not raise it on
direct appeal and denying a certificate of appealability. We denied a COA for the
same reason.
2 Case: 18-15265 Date Filed: 03/26/2020 Page: 3 of 6
Following the denial of his 2014 petition, Moore has filed three pro se
discovery motions. All three motions were filed with the explicit purpose of
gathering evidence to support a Carpenter-based Fourth Amendment claim that
would enable him to file a second or successive section 2255 petition. The district
court, however, denied each of Moore’s three motions sua sponte without
providing any explanation.
In Moore’s third motion—the denial of which is before us—Moore
requested that the government provide: (1) all reports prepared by law enforcement
for the confidential informant in his case; (2) all warrants used during the
government’s investigation; (3) all discovery related to his cell phone, including
his physical location; (4) all subpoenaed or court-ordered courts for his phone; and
(5) all government trial exhibits related to subpoenaed phone tolls from his phone.
On appeal, he argues that the district court erred in denying his motion because the
evidence he requested was needed to make a prima facie showing for leave from
this Court to file a successive section 2255 motion to assert his Carpenter claim.
He claims that with the discovery material, “there is an overwhelming reasonable
probability that the jury verdict would have been not guilty.” The government, in
turn, responds that the district court did not have jurisdiction because this Court
had not granted Moore leave to file a successive section 2255 petition and,
therefore, there was no live case before the district court. It also argues that, even
3 Case: 18-15265 Date Filed: 03/26/2020 Page: 4 of 6
if the district court had jurisdiction, Moore did not establish good cause for
discovery.
We review de novo questions concerning subject matter jurisdiction of the
district court, United States v. Grimon, 923 F.3d 1302, 1305 (11th Cir.), and
review a district court’s denial of a post-conviction discovery motion for abuse of
discretion, United States v. Espinosa–Hernandez, 918 F.2d 911, 913 (11th Cir.
1990). We construe pleadings filed by pro se parties liberally. See Sanders v.
United States, 113 F.3d 184, 187 (11th Cir. 1997).
Collateral attacks on the legality of a federal sentence typically must be
brought under a section 2255 motion. Darby v. Hawk-Sawyer, 405 F.3d 942,
944 (11th Cir. 2005). A federal prisoner who fails to raise a claim on direct appeal
may be procedurally barred from raising the claim in a section 2255 motion, absent
a showing of cause that excuses the default and prejudice, or actual innocence.
Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). A federal prisoner
who wishes to file a successive section 2255 motion is required to move the court
of appeals for an order authorizing the district court to consider such a motion. See
28 U.S.C. § 2255(h), cross-referencing 28 U.S.C. § 2244. Absent prior
authorization from a court of appeals, a district court lacks jurisdiction to consider
a successive section 2255 motion. United States v. Holt, 417 F.3d 1172,
1175 (11th Cir. 2005).
4 Case: 18-15265 Date Filed: 03/26/2020 Page: 5 of 6
In Carpenter, the Supreme Court held that an individual maintains a
legitimate expectation of privacy in his physical movements captured by wireless
carriers—which collect a user’s location from a time-stamped record known as
cell-site location information—and, therefore, the government needs a warrant
supported by probable cause to access that information. See 138 S. Ct. at 2211,
2217, 2219, 2220–21, 2223.
We have not had the occasion to address the specific issue of whether a
district court has jurisdiction over a federal prisoner’s post-conviction discovery
motion in anticipation of his filing a section 2255 motion or a successive section
2255 motion. 1 But we do not need to resolve that thorny question to address the
merits of Moore’s appeal. Even assuming, arguendo, that the district court had
jurisdiction to decide Moore’s triad of discovery motions, we cannot conclude that
it abused its discretion in denying Moore’s third motion. The Supreme Court’s
opinion in Carpenter concerned a person’s expectation of privacy in his physical
movements gathered by wireless carriers. That holding does not affect Moore’s
conviction. None of the trial evidence that Moore references specifically shows
1 We note that, in United States v. Felix, an unpublished opinion from 2008, we affirmed the denial of a petitioner’s discovery motion, which was filed after he was convicted, sentenced, and his first section 2255 motion denied. 298 F. App’x 905, 906 (11th Cir. 2008). In support of its conclusion, the Felix panel stated that the district court lacked jurisdiction to provide relief under Federal Rule of Criminal Procedure 16, because nothing in that rule authorized discovery after a criminal case concluded, and to the extent that Felix’s motion sought relief from his convictions and sentences, it was due to be denied because this Court had not authorized a successive section 2255 motion. Id. 5 Case: 18-15265 Date Filed: 03/26/2020 Page: 6 of 6
that law enforcement obtained, or that the government relied on or used, records of
his physical location that his wireless carrier gathered. Instead, the evidence
introduced in support of the government’s case at trial served as direct proof that
Moore had attempted to acquire cocaine with the intent to subsequently distribute
it—e.g., a recorded phone call between Moore and a confidential informant and a
videotape of the attempted exchange of drugs between Moore and the informant.
That evidence was introduced at trial as direct proof that Moore committed the
crime. No indirect proof based on cell-tower data of Moore’s physical location
was introduced. Accordingly, we conclude that the district court did not abuse its
discretion in granting Moore’s third discovery motion.
Moreover, even if the evidence was the sort implicated by the Supreme
Court’s holding in Carpenter, Moore has procedurally defaulted his Carpenter claim
because, like his Riley claim from his first section 2255 petition, he failed to raise it
on direct appeal and cannot demonstrate cause for his failure to do so, or prejudice.
See Darby, 405 F.3d at 944.
Accordingly, we affirm.
AFFIRMED.