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Moe v. Gentry

United States District Court, D. Nevada

October 20, 2017

MICHAEL JOHN MOE, Petitioner,
v.
JO GENTRY, et al., Respondents.

          ORDER

         Introduction

         This action is a pro se petition for writ of habeas corpus by Michael John Moe, a Nevada prisoner. The action is before the Court with respect to the merits of Moe's petition. The Court will deny the petition.

         Substitution of Respondent

         Moe is incarcerated at Nevada's Southern Desert Correctional Center (SDCC). Jo Gentry is the warden of SDCC. Therefore, pursuant to Federal Rule of Civil Procedure 25(d), Jo Gentry is substituted for Brian E. Williams, Sr., as the respondent warden in this action.

         Background

         On May 22, 2009, Moe was convicted, in Nevada's Second Judicial District Court, in Washoe County Nevada, pursuant to a jury verdict, of one count of burglary. See Judgment, Exhibit 39. (The exhibits referred to in this order were filed by respondents, and are located in the record at ECF Nos. 8, 9, 10, 11, 12, and 13.) Moe was adjudicated an habitual criminal, under NRS 207.010, and he was sentenced to 25 years in prison, with the possibility of parole after 10 years. See Judgment, Exhibit 39 (ECF No. 9-13)

         The trial was held on April 6, 2009. See Trial Transcript, Exhibit 23 (ECF No. 8-23). Evidence at trial showed that Moe committed a burglary at a Cabela's sporting goods store, and shoplifted items from that store.

         The first to testify at Moe's trial was Scott Thomas Catron, who was employed by Cabela's as a loss prevention specialist. See Testimony of Scott Thomas Catron, Trial Transcript, Exhibit 23, pp. 99-220 (ECF No. 8-23, pp. 100-221). Catron testified that on November 20, 2008, he saw Moe in the Cabela's store. See id. at 108, 117, 119 (ECF No. 8-23, pp. 109, 118). Catron saw Moe with a Garmin GPS device, which he placed in a basket and covered with a shirt. See id. at 119-20 (ECF No. 8-23, pp. 120-21). Catron then began to watch Moe on a security camera. See id. at 121-22 (ECF No. 8-23, pp. 122-23). Catron thought that Moe did not seem to be shopping. See id. Catron then saw Moe bend down, and stand back up, and do something in his jacket pocket with his hands --“fighting with something inside his jacket.” See id. at 122-24, 126 (ECF No. 8-23, pp. 123-25, 127). Catron believed that Moe had moved the Garmin GPS device from the basket to his jacket pocket. See id. at 150, 216 (ECF No. 8-23, pp. 151, 217). Moe then wandered to the video game section of the store, where he selected some video games. See id. at 124-25 (ECF No. 8-23, pp. 125-26). Catron then saw Moe move toward a section of the store with camouflage clothing, where he left the “spider wrap” from the Garmin GPS device. See id. at 127, 213 (ECF No. 8-23, pp. 128, 214). “Spider wrap” is a security device that is attached to a product. See Id. at 114-15 (ECF No. 8-23, pp. 115-16). Catron had another employee, Jeff Duncan, go out on the store floor and retrieve the spider wrap that Moe left in the camouflage clothing section. See id. at 127, 159 (ECF No. 8-23, pp. 128, 160). Catron then saw Moe move toward the front of the store, but veer off toward a restroom near the store entrance. See id. at 125, 127-28, 166 (ECF No. 8-23, pp. 126, 128-29, 167). Moe went into the restroom, and stayed in there for about half an hour. See id. at 128 (ECF No. 8-23, p. 129). Catron then had another employee, Burl Sutter, go into the restroom and remove all the trash, so that Catron could later tell what trash Moe left in the restroom. See id. at 129, 166-70 (ECF No. 8-23, pp. 130, 167-71). Sutter went into the restroom and checked the trash several times while Moe was inside. See id. at 129-30, 166-70 (ECF No. 8-23, pp. 130-31, 167-71). Sutter retrieved from the restroom a Garmin GPS device box. See id. at 130-31, 170-71 (ECF No. 8-23, pp. 131-32, 171-72). When Moe eventually came out of the restroom, Catron saw him go back into the store area. See id. at 131 (ECF No. 8-23, p. 132). Catron noticed Moe watching the front entrance. See id. at 132, 171-72 (ECF No. 8-23, pp. 133, 172-73). Catron then testified as follows:

Q. And eventually does he walk outdoor?
A. He does, he makes some more -- a movement throughout the apparel department. At one point in time he takes the Garmin from -- one pocket and placing it in another pocket, stops and looks up at a camera, and then kind of just stands and watches the front of the store and then starts to head towards the front of the building through the standard exit would be if you pay for merchandise through the clothes checkout lanes.
Q. Then he walks out the doors and the Reno Police Department is actually already there; is that right?
A. They are there, yes.

Id. at 132 (ECF No. 8-23, p. 133). Catron had called the police. See id. at 132-34 (ECF No. 8-23, pp. 133-35). Moe was arrested. See id. at 134 (ECF No. 8-23, p. 135). When he was arrested, Moe had in his possession four video games and the Garmin GPS device. See id. at 134, 153, 173-75 (ECF No. 8-23, pp. 135, 154, 174-76). The Garmin GPS device was, at that point, not in a box. See id. at 134-35 (ECF No. 8-23, pp. 135-36). During Catron's testimony, the prosecution played for the jury a surveillance video showing Moe in the Cabela's store, and his arrest outside, and showed the jury a photo of the items Moe took from the store. See id. at 137-43, 148-74 (ECF No. 8-23, pp. 138-44, 149-75). Catron testified that the total value of the items that Moe took from the store was about $350. See id. at 175-76 (ECF No. 8-23, pp. 176-77).

         Next to testify was Jeffrey Paul Duncan, another Cabela's loss prevention employee. See Testimony of Jeffrey Paul Duncan, Trial Transcript, Exhibit 23, pp. 221-39 (ECF No. 8-23, pp. 222-240). Duncan testified that on November 20, 2008, he assisted Catron in watching Moe on the store's security cameras. See id. at 222 (ECF No. 8-23, p. 223). Duncan testified that at some point, Catron asked him to go out onto the floor and retrieve a security device that Moe had discarded there; Duncan found the “spider wrap” security device in the pocket of a piece of camouflage clothing where Catron believed Moe had left it. See id. at 223-24 (ECF No. 8-23, pp. 224-25).

         The prosecution's last witness was David Robertson, a police officer with the Reno Police Department. See Testimony of David Robertson, Trial Transcript, Exhibit 23, pp. 240-71 (ECF No. 8-23, pp. 241-272). Officer Robertson responded to the Cabela's store on November 20, 2008, and participated in apprehending Moe as he exited the store. See id. at 242-45 (ECF No. 8-23, pp. 243-46). Officer Robertson testified that Moe was searched, and the police found that he had items from the store concealed under his jacket. See id. at 246 (ECF No. 8-23, p. 247). The police found that Moe had only three pennies in his possession, and no other cash, credit cards, or checks. See id. at 247 (ECF No. 8-23, p. 248). Officer Robertson testified as follows about statements made by Moe:

Q. [...] [D]id you ask or did the defendant make a spontaneous statement about what his intention was inside the store, what he was doing there?
A. He was there to remove items from the store.
Q. Did he state that he had any way to pay for those items?
A. I don't recall if he -- if he said that he had a means of payment.
* * *
Q. And when you spoke to the defendant on November 20th of 2008 inside the store at Cabela's after he had stolen this property, he stated to you that he went there to steal it?
A. Yes.

Id. at 250, 255 (ECF No. 8-23, pp. 251, 256).

         The defense called defense investigator Evo Novak as a witness. See Testimony of Evo Novak, Trial Transcript, Exhibit 23, pp. 272-82 (ECF No. 8-23, pp. 273-83). Novak testified that he viewed the surveillance video from Cabela's, and he testified about his observations regarding that video. See id. at 273-74 (ECF No. 8-23, pp. 274-75). He also testified about going to Cabela's and taking photographs of certain items as part of the defense investigation. See id. at 274-77 (ECF No. 8-23, pp. 275-78).

         The jury found Moe guilty of burglary. See Trial Transcript, Exhibit 23, pp. 304-06 (ECF No. 8-23, pp. 305-07); Verdict, Exhibit 25 (ECF No. 8-25).

         Moe filed a motion for a new trial, based on the trial court's denial of a challenge for cause of a prospective juror; however, the prospective juror had been challenged by the defense, using a peremptory challenge, and did not serve on the jury. See Motion for New Trial, Exhibit 27 (ECF No. 9-1). The court denied that motion. See Order, Exhibit 33 (ECF No. 9-7).

         On April 30, 2009, the State filed a notice of its intent to seek an habitual criminal sentencing enhancement. See Notice of Intent to Seek Habitual Criminal Enhancement, Exhibit 32 (ECF No. 9-6). In that notice, the State listed seven prior felony convictions. See id.

         Moe's sentencing was held on May 22, 2009. See Transcript of Sentencing, Exhibit 38 (ECF No. 9-12). He was adjudicated an habitual criminal under NRS 207.010, and was sentenced to 25 years in prison, with the possibility of parole after 10 years. See id. at 60 (ECF No. 9-12, p. 61); Judgment, Exhibit 39 (ECF No. 9-13).

         Moe appealed, and the Nevada Supreme Court affirmed Moe's judgment of conviction on November 5, 2009. See Order of Affirmance, Exhibit 55 (ECF No. 10-4).

         On April 21, 2010, Moe filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 60 (ECF No. 10-9). After counsel was appointed for him, Moe filed a supplemental petition on August 7, 2011. See Supplemental Petition for Writ of Habeas Corpus, Exhibit 88 (ECF No. 11-12). Moe subsequently amended his petition. See Motion for Leave to Amend, Exhibit 109 (ECF No. 12-8); Order Granting Motion for Leave to Amend, Exhibit 117 (ECF No. 12-16). On January 8, 2013, the state district court held an evidentiary hearing. See Transcript of Evidentiary Hearing, Exhibit 121 (ECF No. 12-20). The state district court denied Moe's petition in a written order on April 8, 2013. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 124 (ECF No. 12-23). Moe appealed. On September 18, 2013, the Nevada Supreme Court affirmed the denial of Moe's petition. See Order of Affirmance, Exhibit 138 (ECF No. 13-12).

         This court received Moe's pro se federal habeas corpus petition on August 6, 2014. See Petition for Writ of Habeas Corpus (ECF No. 4). Moe's federal habeas petition includes 44 grounds for relief, some with several subparts. See id.

         On February 17, 2015, respondents filed a motion to dismiss, contending that all Moe's claims are unexhausted in state court. See Motion to Dismiss (ECF No. 7). Respondents also argued that all Moe's claims are conclusory and that some of his claims are not cognizable in a federal habeas action. See id. The Court ruled on the motion to dismiss on June 25, 2015, granting it in part and denying it in part. See Order entered June 25, 2015 (ECF No. 20). The Court ruled that the following of Moe's claims were exhausted in state court:

Ground 20 (to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron);
Ground 24(2) (to the extent based on trial counsel's alleged failure to call Pam Metzger to testify);
Ground 24(3) (to the extent based on trial counsel's alleged failure to encourage Moe to testify at trial);
Ground 24(9) (to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron);
Ground 24(16) (to the extent based on trial counsel's alleged failure to offer at trial, as evidence, “the advertisement flyer showing sale jackets from Cabela's store and [the receipt from] Metzger's gambling tournament at Boomtown”);
Ground 24(21) (to the extent based on trial counsel's alleged failure to “investigate the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metzger selling videotapes stolen by Moe”);
Ground 24(22) (to the extent based on trial counsel's alleged failure to object to “the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metzger selling videotapes stolen by Moe, ” and to offer evidence that one of his prior convictions was the result of a trial at which he was not present);
Ground 24(23) (to the extent based on trial counsel's alleged failure to object to “the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metzger selling videotapes stolen by Moe”);
Ground 24(24) (to the extent based on trial counsel's alleged failure to object to “the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metzger selling videotapes stolen by Moe”);
Ground 24(26) (to the extent based on trial counsel's alleged failure to object “when the court ordered there were sixteen minutes left to finish the jury trial after the State's case”);
Ground 24(32) (to the extent based on trial counsel's alleged failure to play “the videotape from Cabela's security office to impeach Officer David Robertson's supplemental report, ” and ...

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