John Moss v. Ray Hobbs , 444 F. App'x 108 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2684
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John T. Moss, *
*
Petitioner, *
* Application for Permission
v. * to File a Successive
* Habeas Petition.
Ray Hobbs, Director, Arkansas *
Department of Correction, * [UNPUBLISHED]
*
Respondent. *
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Submitted: October 20, 2011
Filed: October 24, 2011
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Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Arkansas prisoner John T. Moss seeks authorization to file a successive 28
U.S.C. § 2254 petition challenging his convictions for capital murder and attempted
capital murder. See Moss v. State, 655 S.W.2d 375 (Ark. 1983) (affirming
convictions). We deny authorization because Moss’s application does not satisfy the
statutory requirements for authorizing a successive § 2254 petition.
In 1988, Moss filed his first § 2254 petition claiming his constitutional rights
were violated because of alleged juror bias, prosecutorial misconduct, an improper
burden shift regarding an element of the offense, and the lack of sufficient evidence
to support his conviction. The district court denied the petition on the merits, and we
affirmed the denial. See Moss v. Lockhart, 971 F.2d 77 (8th Cir. 1992). After Moss
unsuccessfully sought state habeas relief, he filed a second § 2254 petition. The
district court dismissed the petition because Moss did not have this court’s
authorization to file it. See 28 U.S.C. § 2244(b)(3)(A) (authorization requirement).
Moss now seeks our authorization to raise claims that (1) his attorney was
ineffective for failing to fully investigate and to present evidence about Moss’s
mental health history, (2) the trial court violated his due process rights by failing to
provide a state psychiatrist with Moss’s prior medical records, which the psychiatrist
needed to form an opinion, (3) he could have made a preliminary showing of insanity
absent those errors, (4) he was illegally sentenced due to counsel’s ineffective
assistance and trial court error, and (5) the prosecutor committed misconduct at trial
by alluding to inadmissible evidence--Moss’s prior possession of a gun. Except for
the prosecutorial misconduct claim, Moss did not raise his proposed claims in his first
§ 2254 petition. See Moss, 971 F.2d at 81.
Authorization to file a successive § 2254 petition may be granted only if the
prisoner did not present the proposed claim in an earlier § 2254 petition and the
prisoner shows the claim relies on either (A) a new, previously unavailable rule of
constitutional law made retroactively applicable to cases on collateral review by the
Supreme Court, or (B) a previously undiscoverable factual predicate showing by clear
and convincing evidence that, but for constitutional error, no reasonable fact finder
would have found the petitioner guilty of the underlying offense. See 28 U.S.C.
§ 2244(b)(2). We conclude Moss has failed to satisfy this standard with respect to
any of his claims.
First, Moss cites no new, retroactively applicable rule of constitutional law in
support of his claims. Moss relies heavily on Ake v. Oklahoma, 470 U.S. 68 (1985)
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(due process requires that when defendant shows sanity at time of offense will be
significant factor at trial, state must assure access to competent psychiatrist to conduct
appropriate examination and assist in defense). Ake was decided in 1985, however,
and thus was available to Moss when he filed his first § 2254 petition in 1988. See
28 U.S.C. § 2244(b)(2)(A). Second, the factual predicates for the claims, which
allege errors that occurred pretrial, during trial, and during sentencing, existed before
Moss filed his first § 2254 petition. See 28 U.S.C. § 2244(b)(2)(B)(i). Indeed,
Moss’s application states that before his trial, he informed his attorney of his
“complete history of his mental problems and treatment,” of “his dependence on
psychotropic medication to function,” and of recent theft charges against him being
dropped because of the results of a mental evaluation. Cf. Ward v. Norris, 577 F.3d
925, 933-34 (8th Cir. 2009) (Rule 60(b) claim of incompetency was successive
ineffective-assistance claim where factual support for incompetency available to
earlier habeas counsel). Moss also states he was medicated before trial and able to
assist in his defense. Moss does not assert that mental incapacity prevented him from
presenting his current claims at the time of his first § 2254 petition. Last, Moss’s
prosecutorial misconduct claim must be dismissed because it was presented in his
first § 2254 petition. See 28 U.S.C. § 2244(b)(1).
Because Moss has failed to show his proposed new claims rely on previously
unavailable law or facts, we deny him authorization to file a successive § 2254
petition.
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