Moore v. Howell

• Court: District Court, D. Nevada
• Decided: July 19, 2022
• Docket: 2:21-cv-01639
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 PHILLIP CHARLES MOORE, Case No. 2:21-cv-01639-APG-VCF

4 Petitioner, v. ORDER 5 JERRY HOWELL, et al., (ECF Nos. 4, 9, 13, 20) 6 Respondents. 7 8 Petitioner Phillip Charles Moore, a Nevada state prisoner, has filed a petition for writ of 9 habeas corpus under 28 U.S.C. § 2254. The respondents move to dismiss Ground 1 of Moore’s 10 petition as unexhausted and Ground 3 as duplicative. ECF No. 13. Moore moves for appointment 11 of counsel. ECF No. 9. I will appoint counsel, allow Moore to file a counseled amended petition, 12 and deny the respondents’ motion to dismiss without prejudice. 13 I. Background 14 Moore challenges a conviction and sentence imposed by the Eighth Judicial District Court 15 for Clark County (“state court”). State of Nevada v. Philip Moore, Case No. C-17-328060-1.1 Prior 16 to sentencing, Moore moved to withdraw his guilty plea and the state court denied his motion. Exs. 17 9, 12. The state court entered a judgment of conviction for burglary while in possession of a 18 firearm and robbery with use of a deadly weapon, and sentenced Moore to an aggregate total of a 19 maximum 35-year term with a minimum parole eligibility of 12 years. Ex. 17. Moore did not 20 directly appeal his conviction. 21 In July 2019, Moore filed a pro se state petition for writ of habeas corpus and supplemental 22 petition with the assistance of counsel. Exs. 21, 32. The Supreme Court of Nevada affirmed the 23 state court’s denial of relief. Ex. 66. On September 3, 2021, Moore initiated this federal habeas 24 corpus proceeding pro se. ECF No. 1. I instructed him to file an application for leave to proceed 25 in forma pauperis or resolve the filing fee, and he timely complied. ECF No. 3, 8. Moore resolved 26 1 The Court takes judicial notice of the online docket records of the Eighth Judicial District Court 27 and Nevada appellate courts. The docket records may be accessed by the public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 28 at: http://caseinfo.nvsupremecourt.us/public/caseSearch.do 1 the filing fee so his application to proceed in forma pauperis is denied as moot. 2 The respondents now move to dismiss Ground 1 of Moore’s petition as unexhausted. ECF 3 No. 13 at 3. They further argue that Ground 3 is duplicative of Ground 2 and should be dismissed. 4 Id. at 4. Moore did not respond to the motion to dismiss and the time to do so has expired. 5 II. Discussion 6 a. Appointment of Counsel 7 Moore seeks the appointment of counsel to assist him in this habeas action. There is no 8 constitutional right to appointed counsel in a federal habeas corpus proceeding. Luna v. Kernan, 9 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)). An 10 indigent petitioner may request appointed counsel to pursue habeas relief. 18 U.S.C. 11 § 3006A(a)(2)(B). The decision to appoint counsel is generally discretionary. Id. § 3006A(a)(2) 12 (authorizing appointment of counsel “when the interests of justice so require”). However, counsel 13 must be appointed if the complexities of the case are such that denial of counsel would amount to 14 a denial of due process, and where the petitioner is so uneducated that he is incapable of fairly 15 presenting his claims. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Brown v. United States, 16 623 F.2d 54, 61 (9th Cir. 1980). 17 Here, the appointment of counsel furthers the interests of justice. Moore is serving a 18 lengthy sentence of 12 to 35 years in the aggregate. His motion represents that another inmate 19 assisted Moore in filing his motion for appointment of counsel and that Moore has poor reading 20 and writing skills. ECF No. 9. Attached to his motion is a letter from San Bernadino City Unified 21 School District referring to a psychological evaluation showing that Moore received special 22 education services. Id. at 2. Appointment of counsel is appropriate. Accordingly, I grant Moore’s 23 motion for appointment of counsel and provisionally appoint the Federal Public Defender’s Office 24 as counsel. 25 b. Motion to Dismiss 26 Because I will appoint counsel and grant Moore leave to file an amended petition, I deny 27 the respondents’ motion to dismiss without prejudice. 28 / / / / 1 c. Motion to Seal 2 The respondents seek leave to file under seal two documents in the index: Exhibit 7, which 3 is Moore’s presentence investigation report (PSI) dated December 26, 2017(ECF No. 21-1); and 4 Exhibit 14, which is Moore’s supplemental presentence investigation report dated July 20, 5 2018(ECF No. 21-2). Under Nevada law, the PSI is “confidential and must not be made a part of 6 any public record.” Nev. Rev. Stat. § 176.156(5). 7 Based on Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and 8 its progeny, the compelling need to protect Petitioner’s safety, privacy, and personal identifying 9 information outweighs the public interest in open access to court records. Accordingly, the 10 respondents’ motion to seal is granted and Exhibits 7 and 14 are considered properly filed under 11 seal. 12 III. Conclusion 13 I THEREFORE ORDER: 14 1. Petitioner Phillip Charles Moore’s Application for Leave to Proceed in forma pauperis 15 (ECF No. 4) is DENIED as moot. 16 2. Moore’s Motion for Appointment of Counsel (ECF No. 9) is GRANTED. 17 3. The respondents’ Motion to Dismiss (ECF No. 13) is DENIED without prejudice. 18 4. The respondents’ Motion to Seal (ECF No. 20) is GRANTED. 19 5. The Federal Public Defender is provisionally appointed as counsel and will have until 20 August 22, 2022 undertake direct representation of Moore or to indicate the office’s 21 inability to represent him in these proceedings. If the Federal Public Defender is unable 22 to represent Moore, I will appoint alternate counsel. Counsel will represent Moore in 23 all federal proceedings related to this matter, including any appeals or certiorari 24 proceedings, unless allowed to withdraw. A deadline for the filing of an amended 25 petition or seeking other relief will be set after counsel has entered an appearance. I 26 anticipate setting the deadline for approximately 90 days from entry of the formal order 27 of appointment. 28 6. Any deadline established and any extension thereof will not signify any implied finding ] of a basis for tolling during the time period established. Moore at all times remains 2 responsible for calculating the running of the federal limitation period and timely 3 presenting claims. That is, by setting a deadline to amend the petition or by granting 4 any extension, I make no finding or representation that the petition, any amendments, 5 or any claims are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 6 1225, 1235 (9th Cir. 2013). 7 7. The Clerk of Court will SEND a copy of this order to the pro se petitioner, the Nevada 8 Attorney General, the Federal Public Defender, and the CJA Coordinator for this 9 division. The Clerk will further provide the Federal Public Defender with copies of all 10 prior filings in this case by regenerating notices of electronic filing or through such 11 other means as is expedient for the Clerk. 12 Dated: July 19, 2022. 13 Gm ANDREW P. GORDON 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28