United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
October 4, 2019, this court denied petitioner's motion to
proceed in forma pauperis and directed him to pay
the filing fee in order to proceed with his petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No.
3. He has complied with that order and paid the required fee.
ECF No. 4. The court has conducted a preliminary review of
the petition as required by Rule 4 of the Rules Governing
Habeas Corpus Cases Under Section 2254. For reasons that
follow, the petition will be dismissed for lack of
his petition, petitioner seeks to set aside a Nevada
conviction for first-degree murder entered in 1999. The Court
notes that Petitioner brought a previous habeas action in
this Court challenging the same conviction. Moore v.
McDaniel, 3:07-cv-00240-RCJ-RAM. In that proceeding, the
Ninth Circuit Court of Appeals affirmed this Court's
denial of Moore's habeas petition but reversed the
court's decision that all of Moore's claims were
exhausted. Moore v. Nevada Atty. Gen., 542 Fed.Appx.
650 (9th Cir. 2013). The Court of Appeals dismissed the lone
unexhausted claim. Id. at 653-54. The United States
Supreme Court subsequently denied Moore's petition for
writ of certiorari. Moore v. Masto, 572 U.S. 1105
petitioner has previously filed an application for habeas
relief under section 2254 which has been denied on the
merits, the Court cannot grant relief with respect to a claim
that was presented in the prior application. 28 U.S.C. §
2244(b)(1). In addition, the Court cannot grant relief with
respect to a claim that was not presented in the prior
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B)(I) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2). Moreover, § 2244(b)(3)
requires a petitioner to obtain leave from the appropriate
court of appeals before filing a second or successive
petition in the district court.
has failed to secure an order from the Court of Appeals
authorizing this action as required by § 2244(b)(3).
Therefore, this Court is without jurisdiction to consider the
habeas petition filed herein. See Burton v. Stewart,
549 U.S. 147, 153 (2007).
this Court questions whether Moore can make either showing
under § 2244(b)(2) given the grounds upon which he now
seeks to challenge his conviction. All three of his habeas
claims are premised on the allegation that the jury
instructions in his case improperly blurred the distinction
between premeditation and deliberation, two elements of
first-degree murder in Nevada, as prescribed in Byford v.
State, 994 P.2d 700 (Nev. 2000).
was decided in February 2000 while Moore's direct appeal
was pending. The Nevada Supreme Court clarified back in 2008
that because the change effected by Byford narrowed
the scope of the criminal statute, it should, as a matter of
due process, apply to anyone whose conviction was not final
at the time Byford was decided. See Nika v.
State, 198 P.3d 839, 850 (Nev. 2008). Moore's
conviction was final at the time and so he cannot claim that
his Byford claim was “previously
unavailable.” The Nevada Supreme Court further
clarified that Byford announced a change in state
law and did not implicate any federal constitutional
questions, and thus had no retroactive application on
collateral review. Id. at 1288. Moore relies on
Montgomery v. Louisiana, 136 S.Ct. 718 (2016) and
Welch v. United States, 136 S.Ct. 1257 (2016) to
argue that Byford was a new substantive rule of
federal constitutional law that should thus apply
retroactively. But in an unpublished case, the Ninth Circuit
rejected the notion that Montgomery and
Welch apply. Berry v. Williams, No.
18-70711, 2019 WL 6040278, at *1 (9th Cir. Nov. 14, 2019).
(“[Montgomery and Welch do not] require retroactive
application of a change in state law, like that adopted by
the Nevada Supreme Court in Byford v. State, 994
P.2d 700 (Nev. 2000), to cases on collateral review.”
Moore also has no plausible argument that the factual
predicate for his claims could not have been discovered
petitioner seeks to appeal this decision, he must first
obtain a certificate of appealability. See 28 U.S.C.
§ 2253(c) (providing that an appeal may not be taken to
the court of appeals from a final order in a habeas corpus
proceeding unless a circuit justice or judge issues a
certificate of appealability); Sveum v. Smith, 403
F.3d 447, 448 (7th Cir. 2005) (per curiam) (holding that a
certificate of appealability is required when the district
court dismisses a motion on the ground that it is an
unauthorized, successive collateral attack). A certificate of
appealability may issue only if the petitioner "has made
a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). In addition, when a
§ 2254 petition is denied on procedural grounds, a
certificate of appealability should issue only when the
petitioner shows that reasonable jurists "would find it
debatable whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S.
473, 484 (2000).
has not made a substantial showing that a reasonable jurist
would find it debatable whether this court is correct in
dismissing his petition on procedural grounds. ...