Moran v. McDaniel
| Decision Date | 28 March 1996 |
| Docket Number | No. 96-99007,96-99007 |
| Citation | 80 F.3d 1261 |
| Parties | 96 Cal. Daily Op. Serv. 2298, 96 Daily Journal D.A.R. 3660 Richard Allan MORAN, Petitioner-Appellant, v. E.K. McDANIEL, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding.
Michael Pescetta, Federal Public Defender, Las Vegas, NV, for Richard Allan Moran.
David Sarnowski, Deputy Attorney General, Criminal Justice Division, Carson City, NV, for E.K. McDaniel.
Before: FARRIS, PREGERSON and THOMPSON, Circuit Judges.
Richard Allan Moran has been sentenced to death. The Nevada Supreme Court dismissed, on state procedural grounds, his second state petition for post-conviction relief. The United States District Court for the District of Nevada then denied Moran's second federal habeas corpus petition and his application for a stay of execution. The district court denied the habeas petition on the grounds that federal review was barred by the state court's dismissal of Moran's federal constitutional claims on independent and adequate state grounds, and because Moran's petition was an abuse of the writ.
The district court issued a certificate of probable cause to permit Moran to appeal to this court. He has done so, and asks us to stay his execution now scheduled for 12:01 a.m. on March 30, 1996.
We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court's denial of Moran's habeas corpus petition and deny his application for a stay of execution.
On August 2, 1984, Moran entered the Red Pearl Saloon and shot and killed the bartender and a patron. Moran then stole the cash register, the bartender's purse, and racks of money that he had seen the bartender place under a cupboard. He then set fire to the saloon in an attempt to burn it down. Several days later, he shot and killed his ex-wife. During this murder, Moran unsuccessfully attempted suicide.
Moran confessed to the murders while in the hospital, recovering from his suicide attempt. He was charged with two counts of murder with use of a deadly weapon for the saloon murders and, in a separate case, with one count of murder with use of a deadly weapon for the murder of his ex-wife. He also was charged with two counts of robbery with use of a deadly weapon and with first degree arson. The two cases were consolidated for all purposes before the state court.
After initially pleading not guilty, Moran discharged his counsel and pleaded guilty to all counts. A three-judge state court panel sentenced Moran to death for each of the murders. The Nevada Supreme Court affirmed the death sentence for the saloon murders, but vacated the death sentence for the murder of Moran's ex-wife, and remanded with directions to impose a life sentence without the possibility of parole. Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987).
After unsuccessfully seeking post-conviction relief from the Nevada state courts, Moran filed his first federal petition for habeas corpus relief in the United States District Court for the District of Nevada. The district court denied Moran's petition.
Moran then filed an appeal to this court. In his opening brief, Moran raised the following arguments: (1) his plea and waiver of counsel were not freely and voluntarily entered because he was heavily medicated at the time of his guilty plea, (2) he received ineffective assistance of counsel because his counsel failed to investigate or raise any defenses, (3) the evidence did not support the aggravating circumstances found, (4) the sentencing panel violated Moran's due process rights by refusing to find his intoxicated state constituted a mitigating circumstance, and (5) the sentencing panel violated his due process rights by consolidating the two actions at the penalty hearing.
We reversed the district court's denial of Moran's petition for habeas corpus. We concluded the state trial court deprived Moran of his due process rights by failing to hold a hearing to determine his competency to waive his constitutional rights to counsel, to compulsory process, to confront witnesses, to a public trial, to a jury of his peers, and his privilege against self-incrimination. Moran v. Godinez, 972 F.2d 263, 265 (9th Cir.1992). We determined that this error was not cured by a post-conviction hearing because the state court applied the wrong standard to evaluate Moran's competency. Id. at 265-66. We held: "Competency to waive constitutional rights requires a higher level of mental functioning than that required to stand trial." Id. at 266. Because we reversed the district court on this ground, we decided we would not "reach the other issues raised by Moran on appeal." Id. at 264 n. 2.
The Supreme Court granted certiorari and reversed. Godinez v. Moran, 509 U.S. 389, 401-03, 113 S.Ct. 2680, 2688, 125 L.Ed.2d 321 (1993). The Supreme Court held that the standards are the same to determine competency to stand trial and competency to waive counsel and plead guilty. Id. at 397-99, 113 S.Ct. at 2686. The Court also stated a defendant must not only be competent to waive his or her rights, but such waiver must be knowing and voluntary. Id. at 399-401, 113 S.Ct. at 2687. The Court remanded the case to us for further proceedings.
The parties submitted further briefing in light of the Supreme Court's remand. In Moran's subsequent briefing, he asserted only two arguments: (1) he was not mentally competent to waive his rights and his waiver was not voluntary, and (2) his trial counsel was ineffective by failing to investigate and research all possible defenses.
After reexamining the issues in light of the Supreme Court's decision, we concluded that the post-conviction hearing addressing Moran's competency had cured the due process violation and that his waiver was knowing and voluntary. Moran v. Godinez, 57 F.3d 690, 698-99 (9th Cir.1994). We also addressed and rejected Moran's ineffective assistance of counsel claim. We concluded Moran's counsel was not ineffective by failing "to investigate whether he was competent to plead guilty, waive counsel, and forego the presentation of mitigating evidence" and by failing to investigate and research all possible defenses. Id. at 699-700. Judge Pregerson dissented and filed a dissenting opinion. Neither in the majority opinion nor the dissent did we address the other arguments that Moran had presented in his initial brief to this court in his appeal from the district court's denial of his first habeas petition.
On December 30, 1994, Moran filed a petition for rehearing and a suggestion for rehearing en banc. In this petition, he did not allege that we had failed to resolve any claims raised in his initial federal habeas corpus petition. Moran's petition for rehearing was denied. A judge of this court called for rehearing en banc, but that call failed to receive a majority of the votes of the active judges of the court. As a result, the suggestion for rehearing en banc was rejected.
Moran then filed a petition for certiorari with the Supreme Court. The Court denied certiorari in November 1995. In December 1995, Moran filed a second petition for post-conviction relief in the Nevada state trial court. In February 1996, the state trial court denied this petition. Moran's request for reconsideration was also denied, and the state trial court scheduled his execution for the week of March 25, 1996. The warden of the institution in which Moran is incarcerated set Moran's execution for 12:01 a.m. on March 30, 1996.
On March 7, 1996, Moran appealed the state trial court's denial of his petition for post-conviction relief to the Nevada Supreme Court. He then filed a second petition for habeas corpus relief in the United States District Court for the District of Nevada. The district court continued the hearing on Moran's federal petition to allow the Nevada Supreme Court an opportunity to address Moran's arguments presented to that court. 1
While Moran's petitions were pending before the Nevada Supreme Court and the district court, Moran filed in this court a motion to recall our mandate which issued following the filing of our opinion on November 15, 1994, and amended on June 2, 1995. Moran v. Godinez, 57 F.3d 690 (9th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995). Moran also requested a stay of execution. For the reasons set forth below, we deny Moran's motion to recall the mandate and his request for a stay of execution.
On March 21, 1996, the Nevada Supreme Court affirmed the state trial court's dismissal of Moran's second post-conviction petition. The Nevada Supreme Court concluded that all of Moran's claims were procedurally barred under state law as untimely.
On March 22, 1996, the United States District Court for the District of Nevada heard oral argument on Moran's second federal habeas petition and his request for a stay of execution. On the same day, the district court determined that federal review was precluded because the Nevada Supreme Court's dismissal rested on adequate and independent state procedural grounds and because Moran's federal habeas petition was an abuse of the writ. Moran then filed a notice of appeal to this court and a motion for a stay of his execution. On March 27, 1996 we heard oral argument on the motion to recall the mandate and on the motion for a stay of execution.
Moran requests we recall our mandate in Case No. 91-15609, Moran v. Godinez, 57 F.3d 690 (9th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
After the Supreme Court remanded that case to this court, we issued our opinion on November 15, 1994, and amended the opinion on June 2, 1995, with Judge Pregerson dissenting. Moran contends that in this...
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