United States v. Moss

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 23, 2026
• Docket: 26-3016
• Status: Unpublished

Opinion

Appellate Case: 26-3016 Document: 15 Date Filed: 03/23/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 23, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 26-3016 (D.C. Nos. 6:25-CV-01239-JWB & ROGER MOSS, 6:20-CR-10038-JWB-1) (D. Kan.) Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, Chief Judge, PHILLIPS and CARSON, Circuit Judges. _________________________________

Roger L. Moss, proceeding pro se, appeals the district court’s denial of his

motion for release pending the district court’s decision on the merits of his 28 U.S.C.

§ 2255 motion. We affirm the district court’s denial of the motion for release.

A jury convicted Moss of three counts of possession with intent to distribute

controlled substances—methamphetamine, heroin, and cocaine; one count of

possession of a firearm in relation to a drug trafficking crime; and one count of

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 26-3016 Document: 15 Date Filed: 03/23/2026 Page: 2

possession of a firearm while an unlawful user of a controlled substance. The district

court sentenced him to 255 months’ imprisonment and ordered him to forfeit $25,000

in drug proceeds. Moss appealed. We affirmed the jury’s judgments of conviction,

but vacated the forfeiture order. See United States v. Moss, No. 22-3101, 2024 WL

4541738, at *1 (10th Cir. Oct. 22, 2024).

Moss next filed a § 2255 motion in October 2025 raising sixteen grounds for

relief. In December 2025, he filed a motion for release pending the district court’s

resolution of his § 2255 motion. The district court denied the motion for release.

Moss now appeals from that denial.

Moss argues that the district court’s summary denial of his motion for release

“does not comply with the dictates” of Federal Rule of Appellate Procedure 9(a),

which he asserts applies to a post-conviction detention order by virtue of Rule 9(b).

Aplt. Br. at 3. But we agree with the government that Rule 9 governs release in a

criminal case, not release pending the court’s consideration of a federal prisoner’s

motion for post-conviction relief. 1

We recognize that Rule 9 does permit consideration of a motion for release

after a judgment of conviction, see Fed. R. App. P. 9(b), but “[t]he court must make

its decision regarding release in accordance with the applicable provisions in [the

Bail Reform Act],” Fed. R. App. P. 9(c). And the provision governing

1 Rule 9 is titled “Release in a Criminal Case.” And Rule 9(a)(1) explains that “[t]he district court must state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case.” Fed. R. App. P. 9(a)(1). 2 Appellate Case: 26-3016 Document: 15 Date Filed: 03/23/2026 Page: 3

post-conviction release in that Act, 18 U.S.C. § 3143, speaks only to release pending

sentencing, see § 3143(a), or release pending an appeal of a conviction or sentence,

see § 3143(b). There is no mention of release pending review of a post-conviction

motion. Courts have also held that “[t]he Bail Reform Act does not apply to federal

prisoners seeking post[-]conviction relief.” United States v. Mett, 41 F.3d 1281,

1282 (9th Cir. 1994) (citing cases). Because Rule 9 does not govern review of the

denial of release pending consideration of a motion for post-conviction relief, the

district court was not required to comply with Rule 9(a).

Release pending decision on a habeas petition is not based on “specific

statutory authority,” but “is within the inherent power of a federal district court.”

Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981). To obtain release pending a

decision on a habeas petition, a prisoner must make “a showing of exceptional

circumstances” or “demonstrat[e] a clear case on the merits of the habeas petition.”

Id.

Moss argued in his motion for release that he had a high probability of success

on the merits of his first claim for relief in his § 2255 motion—ineffective assistance

of trial counsel for abandoning an argument that his arrest was illegal. He contended

that, but for counsel’s abandonment of this claim about an illegal arrest, the evidence

from the search of his condominium would have been suppressed. He asserted there

was a high probability of success on the question of whether he should have been

detained that entitled him to release pending consideration of his § 2255 motion.

3 Appellate Case: 26-3016 Document: 15 Date Filed: 03/23/2026 Page: 4

Moss, however, did not explain in his motion for release how his allegedly

illegal arrest would have resulted in the suppression of the evidence in his

condominium. As the government explains in its appeal brief, the search of Moss’s

residence was pursuant to a warrant. And Moss previously litigated the validity of

the search warrant—he moved to suppress the evidence obtained from the search, and

the district court denied the motion. Moss then argued on direct appeal that it was

plain error for the court to deny his motion to suppress without holding a pre-trial

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), before ruling on the

motion. See Moss, 2024 WL 4541738, at *1. We rejected his argument, concluding

the district court did not err by denying Moss a Franks hearing because “the affidavit

would still establish probable cause to search [Moss’s] residence for evidence of drug

dealing even if the affidavit contained the omitted matters about which he now

complains.” Id. at *3.

Moss has failed to show how his counsel’s failure to raise a claim regarding

his allegedly illegal arrest would have led to the suppression of the evidence obtained

through the valid search warrant for his residence. Because he did not demonstrate a

clear case on the merits of this § 2255 claim or make a showing of exceptional

circumstances, we affirm the district court’s decision denying Moss’s motion for

release pending consideration of his § 2255 motion.

Entered for the Court

Per Curiam