IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RUSSELL W. MOSS : CIVIL ACTION

: NO. 05-2250

v. :

:

FREDERICK ROSEMEYER, et al. :

MEMORANDUM and ORDER

Juan R. Sánchez, J. July 14, 2009

Russell W. Moss, serving eight to 20 years for soliciting the murder of a witness to a bank

fraud scheme, asks this Court to grant his petition for habeas corpus because he believes the

prosecutor broke the bargain which led to Moss’s guilty plea. At sentencing, the prosecutor, as

agreed during Moss’s plea, did not ask for the mandatory minimum sentence, but did ask the judge

to sentence Moss to the statutorymaximum on each count. None of Moss’s objections to the Report

by Magistrate Judge Carol Sandra Moore Wells is sustainable; therefore, I will adopt the

Recommendation and deny Moss’s petition.

FACTS

Early in 1983, Ellen Lewis participated in a bank fraud scheme with Moss. When Lewis was

arrested for bank fraud, she cooperated with investigators. Moss solicited Rodney Griffin to kill

Lewis. Griffin was arrested, convicted, and sentenced to death for Lewis’s murder. Griffin

approached prosecutors during his final collateral state proceeding and agreed to implicate Moss in

return for a life sentence. Moss was arrested in 2002 and charged in Lewis’s death. During plea

negotiations, the Commonwealth agreed not to seek a mandatory minimum sentence of five years.1

When Lewis was murdered, section 9712 provided, “[a]ny person who is convicted in any court of 1

this Commonwealth of murder of the third degree . . . , if the person visibly possessed a firearm . .

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At sentencing, the Commonwealth asked the judge to impose the statutory maximum of 30 years’

imprisonment for third degree murder but did not invoke the provisions of section 9712. The judge

sentenced Moss to eight to 20 years’ incarceration. 

Retained counsel represented Moss through his plea negotiations. After sentencing, Moss

and counsel discussed his appeal rights, but counsel did not file a notice of appeal. Moss, formerly

an attorney, filed his appeal pro se. Eight of nine of Moss’s appeal issues centered on his objections

to the sentence, which he viewed as exceeding the sentence for which he bargained. The final issue

concerned pre-trial delay. The Superior Court affirmed Moss’s judgment of sentence. 

Commonwealth v. Moss, No. 3201 EDA 2003 (Pa. Super. Ct. Feb. 14, 2005). 

Moss then filed a federal habeas petition which was dismissed without prejudice to allow him

to pursue a collateral appeal in state court under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§ 9541 et seq. Moss demanded and received the recusal of the trial court judge from his PCRA

proceedings on a claim the judge had participated in the challenged plea negotiations. After a

hearing, the court denied Moss’s PCRA. The Superior Court affirmed the dismissal of Moss’s

PCRA petition. Commonwealth v. Moss, No. 146 EDA 2007, mem. op. (Pa. Super. Ct. Oct. 11,

2007). In his revived petition for writ of habeas corpus, Moss raises 10 objections to the Magistrate

Judge’s Report and Recommendation, each of which he also raised in his PCRA petition and on

appeal.

. during the commission of the offense, [shall] be sentenced to a minimum sentence of at least five

years of total confinement. . . .” 42 Pa. C.S. § 9712(a)(1993). 

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DISCUSSION

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We review de novo the record regarding any recommendation by a magistrate judge to which

a petitioner objects. 28 U.S.C. § 626. Federal habeas courts are not fora in which to relitigate state

trials. Albrecht v. Horn, 485 F.3d 103, 122 n.6 (3d Cir. 2007). This Court may grant Moss’ petition

only if the adjudication on the merits by the Pennsylvania courts:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

A decision is “contrary to” federal law when a state court “arrives at a conclusion opposite

to that reached by [the Supreme Court] on a question of law or if the state court decides a case

differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v.

Taylor, 529 U.S. 362, 412 (2000). The “unreasonable application of” federal law contemplates a

state court’s identification of “the correct governing legal principle from [the Supreme Court's]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.; Fountain

v. Kyler, 420 F.3d 267, 272 (3d Cir. 2005). We defer to state court adjudications without regard to

whether the state court cites Supreme Court or other federal case law, “as long as the reasoning of

the state court does not contradict relevant Supreme Court precedent.” Priester v. Vaughn, 382 F.3d

394, 398 (3d Cir. 2004); 28 U.S.C. § 2254(d). In addition, a state court’s findings of fact are

Moss’s petition is pro se. As such, any supporting submissions must be construed liberally and with 2

a measure of tolerance. Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); United States v. Brierley,

414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). 

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presumed correct; a petitioner must rebut this presumption with clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

Moss raised each of his objections previously in his PCRA petition, so this Court examines

the record solely to determine whether the state courts reached a result which was contrary to or an

unreasonable application of federal law. None of Moss’s issues warrant the issuance of a writ of

habeas corpus. 

Moss argues the Commonwealth violated his rights under federal law when it allegedly

breached his plea agreement not to invoke the mandatory minimum by asking the sentencing judge

for a sentence at the top of the statutory maximum. Moss posits his sentence was contrary to

Santobello v. New York, 404 U.S. 257, 262 (1971). The Santobello Court held that if a defendant

relies “in any significant degree on a promise or agreement of the prosecutor . . . , such promise must

be fulfilled.” Id. at 262. 

The record shows no breach. During the plea colloquy, the court asked the Commonwealth,

“[You] are not invoking [the mandatory minimum], is that correct?” N.T. 7/30/03, 19:8-9. The

prosecutor responded, “That is correct.” N.T. 7/30/03, 19:11. The judge stated, “[I]f the

Commonwealth does not invoke [the mandatory minimum], I do not believe the law enables me to

invoke [it].” N.T. 7/30/03, 19:19-21. None of the sentencing factors enunciated by the court

referred to the mandatory minimum. N.T. 9/23/03, 151-54. Thus, the Commonwealth did not

violate its promise to Moss or any federal law. 

Moss’s fundamental objection to the length of his sentence has been properly found without

merit by every court that has reviewed it. The discretion a judge brings to sentencing implicates no

federal law or right as long as the sentence imposed is less than the statutory maximum. 

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Commonwealth v. Walls, 926 A.2d 957, 966 (Pa. 2007) (holding a sentence of the statutory

maximum, in excess of the state guidelines, within the court’s discretion). 

Moss argues when the judge sentenced him to longer than the mandatoryminimum, the judge

effectively rejected his plea agreement. When the trial court accepted Moss’s guilty plea, the court

reminded Moss, “I am not bound by any recommendations of sentence made by [the prosecutor].”

N.T, 7/30/03, 13:5-6. The trial court stated, “[T]he maximum sentence you could receive if in fact

I sentence you to the maximum sentences for each and ran them consecutive[ly] would be up to

thirty years in prison and fines totaling $50,000. Do you understand that?” N.T. 7/30/03, 13:14-18. 

Moss responded, “Yes, Your Honor.” Id. at 13:19. When Moss entered his guilty plea, he had been

fairly warned the judge was bound by the plea agreement only as to the mandatory minimum

provisions of § 9712 and not as to the statutory maximum sentence. Since the trial court did not

reject the plea agreement, Moss’s invocation of the rule of Santobello is misplaced.

Moss argues he received constitutionally ineffective assistance of counsel when his attorney

did not object to the Commonwealth’s request for the maximum sentence. To demonstrate

ineffective assistance of counsel, Moss must satisfy the two-pronged test in Strickland v.

Washington, 466 U.S. 668 (1984). First, Moss must demonstrate counsel’s deficient performance,

measured against the standard of “reasonably effective assistance,” as defined by “prevailing

professional norms.” Bond v. Beard, 539 F.3d 256, 285 (3d Cir. 2008) (quoting Strickland, 466 U.S.

at 687-88). “This requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466

U.S. at 687. The second prong requires Moss to demonstrate prejudice to the defense based on the

deficient performance. Bond, 539 F.3d at 285 (citing Strickland, 466 U.S. at 687). The second

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prong requires a showing of “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694). 

This Court’s analysis begins with a “strong presumption” of the reasonableness of Moss’s

counsel’s performance. Strickland, 466 U.S. at 689. “It is all too tempting for a defendant to

second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a

court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.” Id. (citation omitted). It is “only the rare claim of

ineffectiveness of counsel that should succeed under the properly deferential standard to be applied

in scrutinizing counsel's performance.” United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)

(citations omitted).

Counsel is not ineffective for failing to raise a meritless issue. Parrish v. Fulcomer, 150 F.3d

326, 328-29 (3d Cir. 1998) (citing Moore v. Deputy Comm’rs of SCI-Huntingdon, 946 F.2d 236,

245 (3d Cir. 1991)). Since the Commonwealth fulfilled all of its promises, Moss’s objection is

meritless and counsel was not ineffective for failing to raise it. 

Moss also complains trial counsel’s petition to withdraw was never acted on by the trial

court, he was not granted an appeal nunc pro tunc, and the Report and Recommendation disregarded

evidence which proves Moss wanted to appeal. Because Moss filed a timely appeal which was

considered on its merits, Moss is unable to satisfy the requirement he show he was prejudiced by

counsel’s failure to file an appeal. To prove prejudice, Moss must show “a reasonable probability

that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely

appealed.” Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000).

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Moss also complains the prosecution failed to provide him with Brady material. “When 3

a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the guilty plea.” United States v. Fulford, 825

F.2d 3, 10 (3d Cir. 1987) (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)). 

For the reasons above, Moss’s petition for writ of habeas corpus is DISMISSED. An

appropriate order follows.

See Brady v. Maryland, 373 U.S. 83 (1963) (holding the prosecution must turn over to the defense 3

any exculpatory material).

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