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Moss v. Rosemeyer

July 14, 2009


The opinion of the court was delivered by: Juan R. Sánchez, J.


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 statutory maximum 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.


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.*fn1

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.


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 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 ...

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