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Moore v. Legrand

United States District Court, D. Nevada

January 30, 2017

DEVELL MOORE, Petitioner,
v.
LEGRAND, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         This counseled habeas matter under 28 U.S.C. § 2254 is before the court on respondents' motion to dismiss petitioner Devell Moore's third-amended petition (ECF No. 33). Moore opposed (ECF No. 35), and respondents replied (ECF No. 37).

         I. Procedural History and Background

         On November 5, 2009, a jury found Moore guilty of counts 1-3: sexual assault of a minor under age 14; and count 5: lewdness with a child under age 14 (exhibit 13).[1] The state district court sentenced him as follows: counts 1-3 - three consecutive terms of life with the possibility of parole after 35 years; count 5 - life with the possibility of parole after 10 years, to run concurrently with counts 1-3. Exh. 14. Judgment of conviction was entered on February 3, 2010. Exh. 15.

         The Nevada Supreme Court affirmed Moore's convictions on June 8, 2011, and remittitur issued on July 5, 2011. Exhs. 21, 22.

         On May 14, 2013, the Nevada Supreme Court affirmed the denial of Moore's state postconviction petition. Exh. 27. That court denied a motion for rehearing on July 9, 2013, and remittitur issued on August 5, 2013. Exhs. 29, 31.

         On July 19, 2013, Moore dispatched his federal habeas petition for filing (ECF No. 6). Ultimately, this court appointed the Federal Public Defender as counsel for Moore. Respondents now argue that claims in the third-amended petition do not relate back to any timely-filed earlier petition and that some claims are unexhausted (ECF No. 33).

         II. Legal Standards & Analysis

         a. Relation Back

         Respondents argue that grounds 1 and 2 of the third-amended petition do not relate back to a timely-filed petition and should thus be dismissed as untimely (ECF No. 33, pp. 5-6). A new claim in an amended petition that is filed after the expiration of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation period will be timely only if the new claim relates back to a claim in a timely-filed pleading under Rule 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out of “the same conduct, transaction or occurrence” as a claim in the timely pleading. Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the United States Supreme Court held that habeas claims in an amended petition do not arise out of “the same conduct, transaction or occurrence” as claims in the original petition merely because the claims all challenge the same trial, conviction or sentence. 545 U.S. at 655-64. Rather, under the construction of the rule approved in Mayle, Rule 15(c) permits relation back of habeas claims asserted in an amended petition “only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in ‘both time and type' from the originally raised episodes.” 545 U.S. at 657. In this regard, the reviewing court looks to “the existence of a common ‘core of operative facts' uniting the original and newly asserted claims.” A claim that merely adds “a new legal theory tied to the same operative facts as those initially alleged” will relate back and be timely. 545 U.S. at 659 and n.5; Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013).

         Here, Moore dispatched his federal habeas petition for filing on July 19, 2013 (ECF No. 7, p. 1). The parties do not dispute that the AEDPA one-year statute of limitations expired on February 4, 2014.

         Thereafter, this court dismissed Moore's petition without prejudice and with leave to file an amended petition within thirty days (ECF No. 6). Moore complied with this court's order and filed an amended petition on June 3, 2014 (ECF No. 9). Contemporaneously, Moore filed a motion for appointment of counsel as well as the affidavit of another inmate, Anthony Thomas (ECF Nos. 8, 10). Thomas attested that he had prepared the amended habeas petition and the affidavit (ECF No. 10). He stated that Moore suffers from “prevalent” mental health defects and cannot read and write sufficiently to proceed in pro se. Id. This court granted the motion for appointment of counsel, and Moore filed a counseled second and now a third-amended petition. The claims in the third-amended petition must relate back to Moore's original pro se petition in order to be deemed timely.

         Ground 1

         In the third-amended petition, Moore claims the trial court erred in denying his request to exclude his taped confession because he failed to explicitly waive his Miranda rights and the circumstances of the in-custody interview overall rendered his statement involuntary in violation of his Fifth and Fourteenth Amendment rights (ECF No. 32, pp. 12-14; Miranda v. Arizona, 384 U.S. 436 (1979)). Moore contends that, while he was read his Miranda rights and acknowledged he understood the rights during the custodial interrogation, he never ...


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