Moore v. Raemisch

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 20, 2018
• Docket: 17-1346
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 20, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court ALONZO LYDELL MOORE,

Petitioner - Appellant,

v. No. 17-1346 (D.C. No. 1:16-CV-02518-RPM) RICK RAEMISCH, Executive Director, (D. Colo.) Colorado Department of Corrections; LAURIE TAFOYA, Warden, San Carlos Correctional Facility; CYNTHIA COFFMAN, Attorney General, State of Colorado,

Respondents - Appellees. _________________________________

ORDER DENYING A CERTIFICATE OF APPEALABILITY* _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges. _________________________________

Plaintiff-Appellant Alonzo Lydell Moore seeks a certificate of appealability

(COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 motion. See 28

U.S.C. § 2253(c)(1)(A) (“Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals from . . . the final

order in a habeas corpus proceeding in which the detention complained of arises out

of process issued by a State court.”). He also seeks leave to proceed in forma

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. pauperis. We deny the request for a COA and dismiss this matter, and also deny

Moore’s motion to proceed in forma pauperis.

I

Moore’s trial

In 1995, when he was approximately 18 years old, Moore was shot in the head.

He suffered brain damage to his frontal lobe. Two years later, in 1997, he was

charged with first-degree murder, felony murder, and two counts of burglary after he

stabbed his ex-girlfriend to death. Moore’s appointed counsel had Moore undergo an

examination to determine whether he was competent to stand trial. Moore strongly

opposed the examination. Nonetheless, Moore underwent an examination, which

produced a report recommending that the trial court find Moore competent to stand

trial. App. at 137.

After the examination, but before the ultimate determination of competency,

Moore sent the trial court judge a letter, asking if he “could get another lawyer.” Id.

at 86. Moore wrote that his attorney was “not taking this case very seriously,” and

explained that Moore was “very upset because [his] lawyer forced [him] into going to

the State Hospital for testing, which [he] didn’t need at all.” Id. Eleven days after

Moore’s letter, the trial judge found Moore competent to stand trial. At the

competency hearing, Moore repeated his request for new counsel. After asking

Moore a series of questions about his counsel—but without hearing from Moore’s

counsel—the judge stated “there is not a sufficient basis for removal” of Moore’s

counsel. Id. at 121.

2 Trial did not begin until approximately 20 months later. Still, Moore

maintained the same appointed counsel. During jury selection, Moore and his

counsel disagreed about whether to strike a prospective juror whose mother and

cousin had been murdered. Eventually, the prospective juror was seated, and was

part of the jury that found Moore guilty of both first-degree murder and felony

murder. The trial judge later sentenced Moore to life imprisonment without the

possibility of parole, a sentence Moore continues to serve.1

Procedural history

Moore filed a direct appeal. The Colorado Court of Appeals affirmed the first-

degree murder and two burglary convictions, but vacated the felony murder

conviction. App. at 34–50; People v. Moore, No. 99CA1288, 2002 WL 1764434, at

*1 (Colo. App. Jan. 17, 2002). The Colorado Supreme Court denied Moore’s petition

for writ of certiorari.

In 2002, Moore filed a petition for post-conviction relief in Colorado state

court under Colorado Crim. P. 35(c). That petition languished unaddressed—despite

numerous letters from Moore—and Moore eventually filed another petition under

Crim. P. 35(c) in 2009. See App. at 55. The Colorado state trial court denied the

2009 petition, concluding that it was a successive petition. On appeal, the Colorado

Court of Appeals determined that the 2009 petition was indeed a successive petition,

but noted that the trial court never addressed Moore’s 2002 Crim. P. 35(c) petition.

1 The judge also sentenced Moore to a concurrent term of 12 years for the two burglary convictions. App. at 141. 3 It remanded to the trial court to consider that 2002 petition. App. at 62–65; People v.

Moore, No. 09CA1675, 2011 WL 2001937, at *1 (Colo. App. May 19, 2011).

On remand, the trial court denied Moore’s 2002 Crim. P. 35(c) petition. App.

at 110–14. The Colorado Court of Appeals affirmed the denial. Id. at 67–82; People

v. Moore, No. 13CA0988, 2015 WL 1299723, at *1 (Colo. App. Mar. 19, 2015). And

the Colorado Supreme Court denied Moore’s petition for writ of certiorari. Moore v.

People, No. 15SC314, 2015 WL 5934719, at *1 (Colo. Oct. 13, 2015).

Nearly a year later, with the assistance of counsel, Moore filed this motion

under 28 U.S.C. § 2254, asserting that the state trial court had denied him his Sixth

Amendment rights in 1997. The district court denied the motion and denied Moore a

COA. With the assistance of counsel, Moore now appeals.

II

To merit a COA, Moore must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This will occur when “jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Moore has not made this sort of substantial showing, and is not entitled to a

COA. As the Colorado Court of Appeals stated in denying Moore post-conviction

relief in 2015, Moore had the opportunity to present facts and reasons in support of

his request for new counsel. However, Moore provided only generic and conclusory

accusations that a conflict existed with his counsel, that he did not get along with his

counsel, and that his counsel was not taking his case seriously. As the Colorado

4 Court of Appeals concluded, discord between counsel and a client “does not create a

Sixth Amendment violation,” and “a trial court cannot be expected to . . . unilaterally

decide whether the level of civility is concerning” between an attorney and his client.

App. at 80 (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)); see also Morris v.

Slappy, 461 U.S. 1, 12–13 (1983). Because Moore has failed to present an issue upon

which reasonable jurists could disagree, his case does not deserve encouragement,

and we deny his request for COA.

Further, “because [Moore] has failed to present a nonfrivolous argument in

support of the issues on appeal,” Thomas v. Parker, 609 F.3d 1114, 1121 (10th Cir.

2010), we also deny Moore’s motion to proceed in forma pauperis.

III

We therefore DENY Moore’s motion for a COA and dismiss this matter. We

also DENY Moore’s motion to proceed in forma pauperis.

Entered for the Court

Mary Beck Briscoe Circuit Judge