United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
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).
Procedural History and Background
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). 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.
Nevada Supreme Court affirmed Moore's convictions on June
8, 2011, and remittitur issued on July 5, 2011. Exhs. 21, 22.
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.
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).
Legal Standards & Analysis
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
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.
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
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 ...