Moore v. Williams

• Court: District Court, D. Nevada
• Decided: January 17, 2020
• Docket: 2:18-cv-02190
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 VALLIENT MOORE, Case No. 2:18-cv-02190-MMD-VCF

6 Petitioner, ORDER v. 7 BRIAN WILLIAMS, et al., 8 Respondents. 9 10 I. SUMMARY 11 This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Petitioner 12 Vallient Moore, a person incarcerated in Nevada who is proceeding pro se. Currently 13 before the Court is Respondents’ Motion to Dismiss (ECF No. 9) Moore’s Petition for Writ 14 of Habeas Corpus (ECF No. 1). Moore did not oppose this motion and the deadline to do 15 so expired without a request to extend it.1 For the reasons discussed below, Respondents’ 16 motion is granted. 17 II. BACKGROUND2 18 Moore challenges a conviction and sentence imposed by the Eighth Judicial District 19 Court for Clark County (“state court”). In July 2014, Moore entered a guilty plea to four 20 charges: Count 1, robbery with use of a deadly weapon, victim 60 years of age or older; 21 Count 2, robbery with use of a deadly weapon; Count 3, conspiracy to commit robbery; 22

23 1LR 7-2 of the Local Rules of Civil Practice provides that failure to file points and authorities in opposition to a motion constitutes consent to granting that motion. See LR 24 7-2(d); cf. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (failure to follow the district court’s local rules is a proper ground for dismissal). Pursuant to the Local Rules, any 25 response to Respondents’ motion was due by April 29, 2019. See LR 7-2(b). Although no 26 response was filed, the Court will address the merits of the motion to ensure a complete record. 27 2This procedural history is derived from the exhibits located at ECF Nos. 10 and 11 28 on the Court’s docket. 1 and Count 4, possession of credit card or debit card without cardholder's consent. (ECF 2 No. 9.) On March 17, 2015, the state court entered a judgment of conviction sentencing 3 Moore on Count 1 to 48-120 months, plus a consecutive 24-120 months for the use of a 4 deadly weapon; on Count 2, to 48-120 months, plus a consecutive 24-120 months for the 5 use of a deadly weapon, to run consecutive to Count 1; on Count 3, to 24-60 months, to 6 run consecutive to Count 2; and on Count 4, to 12-36 months, to run consecutive to 7 Count 3.3 (ECF No. 10-22.) Moore appealed. On January 21, 2016, the Nevada Supreme 8 Court affirmed Moore’s convictions on direct appeal, and a remittitur issued the following 9 month. (ECF Nos. 11-4, 11-5.) 10 Moore filed a pro se state petition for writ of habeas corpus (“state petition”) on 11 February 21, 2017, seeking post-conviction relief. (ECF No. 11-15.) The state court denied 12 the state petition in October 2017, finding that Moore’s claims were “barred by the law of 13 the case doctrine as they have been previously decided on direct appeal and may not be 14 reargued in the [state] Petition.” (ECF No. 11-22 at 9.) Moore appealed. The Nevada Court 15 of Appeals affirmed the state court’s denial of relief in September 2018. (ECF No. 11-30.) 16 A remittitur issued on October 18, 2018. (ECF No. 11-31.) 17 On November 15, 2018, Moore filed his federal habeas petition. (ECF No. 1.) He 18 alleges two claims: Ground 1 – violations of due process and ineffective assistance of 19 counsel for failing to (A) investigate and have “fake” charges dropped, (B) obtain certain 20 exculpatory Brady evidence, and (C) instruct the investigator to do adequate investigation 21 regarding the alibi witnesses; Ground 2 – violations of due process and ineffective 22 assistance of counsel for failing to (A) file a pretrial motion for severance, and (B) instruct 23 the investigator to do adequate investigation regarding the alibi witnesses. (Id. at 3-6.) 24 III. DISCUSSION 25 Respondents move to dismiss Moore’s petition arguing that his claims are not 26 cognizable in federal habeas under Tollett v. Henderson, 411 U.S. 258 (1973), because 27 3On July 18, 2016, the state court entered nunc pro tunc an amended judgment 28 (ECF No. 11-13), correcting “clerical errors” in the original judgment. (ECF No. 11-22.) 1 the claims allege pre-plea errors. 2 A state prisoner is entitled to federal habeas relief only if he is being held in custody 3 in violation of the constitution, laws, or treaties of the United States. See 28 U.S.C. 4 § 2254(a). A federal court must “award the writ or issue an order directing the respondent 5 to show cause why the writ should not be granted, unless it appears from the application 6 that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 7 In Tollett, the Supreme Court held that “[w]hen a criminal defendant has solemnly 8 admitted in open court that he is in fact guilty of the offense with which he is charged, he 9 may not thereafter raise independent claims relating to the deprivation of constitutional 10 rights that occurred prior to the entry of the guilty plea.” 411 U.S. at 267. Therefore, “[a]s 11 a general rule, one who voluntarily and intelligently pleads guilty to a criminal charge may 12 not subsequently seek federal habeas relief on the basis of pre-plea constitutional 13 violations.” Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985) (citations omitted). 14 A criminal defendant who pleads guilty (or no contest, which is the equivalent of a plea of 15 guilty) “may only attack the voluntary and intelligent character of the guilty plea,” Tollett, 16 411 U.S. at 267, by showing that the advice he received from counsel was not “within the 17 range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 18 397 U.S. 759, 770-71 (1970). 19 Here, Moore does not attack the voluntary and intelligent character of his plea by 20 alleging that the advice he received from defense counsel was inadequate. His allegations 21 instead involve pre-plea allegations that counsel should have obtained exculpatory 22 evidence, had “fake” charges dropped, filed a pretrial motion for severance, and instruct 23 the defense investigator regarding the investigation of his alibi witnesses. As Respondents 24 correctly point out, these are not claims that Moore did not enter the guilty plea agreement 25 knowingly, voluntarily, and intelligently due to his counsel’s ineffective assistance. Moore’s 26 guilty plea precludes federal habeas relief for the alleged pre-plea violations. See Tollet, 27 411 U.S. at 267; Hudson, 760 F.2d at 1030. Moore’s claims are thus not cognizable under 28 § 2254 and must be dismissed. 1 || IV. CONCLUSION 2 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 9) is granted. 3 || Petitioner Vallient Moore’s Petition for Writ of Habeas Corpus (ECF No. 1) is dismissed 4 || pursuant to Tollett v. Henderson, 411 U.S. 258 (1973). 5 It is further ordered that a certificate of appealability is denied as jurists of reason 6 || would not find the Court’s dismissal of the petition to be debatable or wrong. 7 The Clerk of Court is further directed to enter final judgment accordingly and close 8 || this case. 9 DATED THIS 17* day of January 2020. 10 11 J □ _~ 12 CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28