Moore v. Helling

• Decision Date: 20 March 2012
• Docket Number: No. 3:05–cv–00348–KJD–VPC.,3:05–cv–00348–KJD–VPC.
• Citation: 861 F.Supp.2d 1195
• Parties: Ryan Oshun MOORE, Petitioner, v. Don HELLING, et al., Respondents.
• Court: U.S. District Court — District of Nevada

861 F.Supp.2d 1195

Ryan Oshun MOORE, Petitioner,

v.Don HELLING, et al., Respondents.

No. 3:05–cv–00348–KJD–VPC.

United States District Court,

D. Nevada.

March 20, 2012.

Debra Bookout, Federal Public Defender, Las Vegas, NV, for Petitioner.

Robert E. Wieland, Bureau of Criminal Justice, Reno, NV, Alicia L. Lerud, Office of the Attorney General, Carson City, NV, for Respondents.

ORDER

KENT J. DAWSON, District Judge.

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a state prisoner, is represented by counsel. The case proceeds on the first amended petition filed by counsel on May 25, 2006. (ECF No. 20.) The case is before the court for resolution on the merits.

I. Background and Procedural History

On February 8, 1998, petitioner, Ryan Oshun Moore, and three other individuals undertook to rob, at gunpoint, the occupants of an apartment in the Vista West Apartment complex in Reno, Nevada. During the course of carrying out the armed robbery, one of the four individuals shot and killed a man who they believed was delivering drugs to the apartment. In actuality, the man, Branson Clark, was delivering food. On April 13, 1998, the State of Nevada filed an information in the Second Judicial District Court for the State of Nevada charging petitioner and one of the other individuals, Charles Dejuan Morris, with murder in the first degree with a deadly weapon, robbery with the use of a firearm, and conspiracy to commit robbery with the use of a firearm. (Exhibits to First Am. Pet. Ex. 6, ECF No. 22.) ¹

Following a jury trial, petitioner was found guilty of first-degree murder with use of a deadly weapon, robbery with use of a firearm, and conspiracy to commit robbery with use of a firearm. Petitioner is currently serving two consecutive twenty-to-life terms for first-degree murder with use of a firearm and a concurrent six-to-fifteen year term for robbery. ( Id. Ex. 61.) Judgment was entered September 24, 1999. ( Id.)

Petitioner filed a direct appeal from his sentence and conviction. On July 25, 2001, the Nevada Supreme Court issued an opinion reversing in part and remanding in part. ( Id. Ex. 73.) The Nevada Supreme Court found that it was improper to enhance a sentence for conspiracy using the deadly weapon enhancement. ( Id.) It remanded the case to the Nevada district court with instructions to vacate the second consecutive twenty-to-life sentence for the count of conspiracy. The Nevada Supreme Court affirmed petitioner's conviction and sentence in all other aspects. ( Id.) The district court entered a corrected judgment on September 20, 2001. ( Id. Ex. 77.)

On September 5, 2002, petitioner filed a post-conviction petition in the Nevada district court. ( Id. Ex. 78.) On October 15, 2004, the district court issued an order dismissing petitioner's petition as untimely pursuant to Nev.Rev.Stat. § 34.726. ( Id. Ex. 88.) Petitioner appealed, and on May 4, 2005, the Nevada Supreme Court affirmed the denial of his petition. ( Id. Ex. 100.)

This court received petitioner's federal petition for writ of habeas corpus on June 3, 2005. (ECF Nos. 1, 6.) The court appointed counsel and on May 25, 2006, petitioner filed a first amended petition. (ECF No. 20.) On June 26, 2006, respondents filed a motion to dismiss and an answer. (ECF No. 34.) On March 14, 2007, the court entered an order granting respondents' motion to dismiss and dismissing the amended petition with prejudice as time-barred. (ECF No. 44.)

Petitioner appealed, and on December 23, 2008, the United States Court of Appeals for the Ninth Circuit issued an opinion reversing the order of this court and remanding the case. (ECF No. 57.) Following the remand, on January 13, 2009, this court entered an order in which it noted that, in granting respondents' motion to dismiss on the basis of timeliness, it did not reach respondents' alternative arguments that the claims of ineffective assistance of counsel in ground three are conclusory, unexhausted and/or procedurally defaulted. (ECF No. 61.) The court explained that it would direct respondents to file a new motion to dismiss reasserting their remaining procedural defenses. ( Id.) The court further explained that once these procedural issues were resolved, the court would direct respondents to file an answer addressing the merits, particularly as to ground two. ( Id.)

Respondents filed a renewed motion to dismiss on June 8, 2009. (ECF No. 67.) In an order entered June 15, 2009, this court ordered stricken pages 11 through 36 of respondents' renewed motion to dismiss and directed petitioner to respond only to the procedural issues raised in part C through E on pages 37 through 46 of respondents' motion. (ECF No. 68.) Petitioner filed a response in opposition on June 29, 2009 (ECF No. 69), to which respondents filed a reply on July 10, 2009 (ECF No. 70).

On October 29, 2009, the court entered an order granting respondents' renewed motion to dismiss and dismissing ground three with prejudice. (ECF No. 71.) The court further ordered respondents to file an answer to the remaining two grounds for relief. ( Id.)

Respondents filed an answer to the remaining claims of the amended petition on February 8, 2010. (ECF No. 74.) Petitioner filed a reply on May 14, 2010. (ECF No. 78.) On January 6, 2011, the court issued an order requiring the parties to file supplemental briefs addressing: (1) whether the Nevada Supreme Court erred in rejecting petitioner's Byford claim, and if so, whether the error of state law so infected the trial with unfairness as to deny due process of law; and (2) whether petitioner is entitled to relief based on a Brecht harmless error analysis. (ECF No. 79.) On March 7, 2011, petitioner filed his supplemental brief and respondents filed their supplemental brief. (ECF Nos. 84, 87.)

II. Federal Habeas Corpus Standards

The Antiterrorism and Effective Death Penalty Act (“AEDPA”), at 28 U.S.C. § 2254(d), provides the legal standard for the court's consideration of this habeas petition:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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.

The AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693–694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) and citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)).

A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). The “unreasonable application” clause requires the state court decision to be more than merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495).

In determining whether a state court decision is contrary to, or an unreasonable application of federal law, this court looks to the state courts' last reasoned decision. See Ylst v.Nunnemaker, 501 U.S. 797, 803–04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000), cert. denied,534 U.S. 944, 122 S.Ct. 324, 151 L.Ed.2d 242 (2001). Moreover, “a determination of a factual issue made by a State court shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. DiscussionA. Ground One

In ground one, petitioner contends that the state district court erroneously denied his motion to suppress statements obtained in violation of his Fifth and Fourteenth Amendment rights. In his motion to suppress, petitioner argued that his waiver of his Miranda rights was not knowing, intelligent and voluntary. (Exhibits to First Am. Pet. Ex. 8.) He also argued that his statements given to the police should be suppressed because they were not the product of a rational intellect and free will, largely due to his status as a juvenile. ( Id.) After hearing testimony on the motion, the state district court made factual findings and denied the motion to suppress. ( Id. Ex. 13.) The court found, under the totality of the circumstances, that petitioner's statement was given freely, voluntarily, and knowingly. ( Id.) In addressing this issue on direct appeal, the Nevada Supreme Court held succinctly that, “we have reviewed the record and, in light of the...