Moore v. Nevada Attorney General

FILED
NOT FOR PUBLICATION OCT 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTIS MOORE, No. 11-15695
Petitioner - Appellant, D.C. No. 3:07-cv-00240-RCJ-
RAM
v.
NEVADA ATTORNEY GENERAL and MEMORANDUM*
RENEE BAKER,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted October 7, 2013
San Francisco, California
Before: N.R. SMITH and NGUYEN, Circuit Judges, and QUIST, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 to review the denial
of Artis Moore’s 28 U.S.C. § 2254 habeas petition. We review the district court’s
denial of a habeas petition de novo. White v. Martel, 601 F.3d 882, 883 (9th Cir.
2010) (per curiam). We affirm the district court’s denial of Moore’s habeas
petition. We reverse the district court’s decision that all of Moore’s claims were
exhausted and dismiss the unexhausted claim.
In order to obtain relief, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) requires Moore to show that the Nevada Supreme Court’s decision
was contrary to, or an unreasonable application of, clearly established Supreme
Court precedent. See 28 U.S.C. § 2254(d).
1. Under the “doubly deferential” standard of Strickland and AEDPA,
Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Knowles v.
Mirzayance, 129 S. Ct. 1411, 1413 (2009)) (internal quotation marks omitted), we
cannot say that it was unreasonable for the Nevada Supreme Court to determine
that counsel’s decisions not to investigate Moore’s intellectual capacity and not to
call Moore’s family member as a witness fell within the “wide latitude counsel
must have in making tactical decisions.” Strickland v. Washington, 466 U.S. 668,
689 (1984). Moore’s counsel was under no obligation to investigate Moore’s
intellectual capacity, because there was nothing to put him on notice that Moore
-2-
was mentally impaired. See Doe v. Woodford, 508 F.3d 563, 569 (9th Cir. 2007).
At the penalty phase of the trial, Moore’s counsel called Moore’s father as a
witness and tried to call his grandmother. However, Moore’s grandmother could
not be found. Moore’s counsel deliberately decided not to call Moore’s aunt as a
witness, because he thought she was too abrasive for the jury.
2. Moore’s counsel informed the court that he may have inadvertently
assisted Moore in jury tampering, because he provided Moore a list of the jurors.
Counsel’s actions were “necessary to avoid assisting a criminal or fraudulent act by
the client.” Model Rules of Prof’l Conduct R. 3.3(a)(2) (1998). Because Moore’s
counsel was acting within his ethical duties when he disclosed the information to
the court, the Nevada Supreme Court’s decision that he was not ineffective for
disclosing the confidential information was not an unreasonable application of
clearly established federal law. See Nix v. Whiteside, 475 U.S. 157, 168-69 (1986).
3. Moore can only obtain relief based on a conflict of interest regarding the
disclosure of confidential information if he can show (1) “that counsel ‘actively
represented conflicting interests’” and (2) “that ‘an actual conflict of interest
adversely affected his lawyer’s performance.’” Strickland, 466 U.S. at 692(quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). However, because Moore
was not charged with jury tampering, there was only a potential conflict of interest.
-3-
Thus, the Nevada Supreme Court’s decision was not contrary to clearly established
federal law, because Moore cannot show that his counsel actively represented an
actual conflict of interest. See Cuyler, 446 U.S. at 350.
In addition, counsel’s motion to withdraw did not impose on the Nevada
Supreme Court an obligation to inquire further about the conflict of interest under
Holloway v. Arkansas, 435 U.S. 475, 484-85 (1978). The motion did not put the
Nevada Supreme Court on notice that a conflict of interest existed and, in any
event, the potential conflict of interest was different in kind from the multiple-
representation conflict of interest addressed in Holloway. See Mickens v. Taylor,
535 U.S. 162, 168 (2002).
4. To investigate whether the jury had been tainted by jury tampering, the
court conducted a voir dire of the jurors but excluded Moore. The court asked all
of the questions; neither the government nor Moore’s counsel questioned the
jurors. Immediately following the questioning of the jurors, and before arguments
regarding the effect of the alleged jury tampering took place, Moore rejoined the
proceedings. The Nevada Supreme Court’s determination that Moore did not have
a right to be present was not contrary to clearly established federal law, because
Moore’s presence would have been useless, “or the benefit but a shadow.”
Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts,
-4-
291 U.S. 97, 106–07 (1934)) (internal quotation mark omitted). If Moore had
arguments or information to share with the court, he could have done so after
rejoining the proceedings.
5. In light of the overwhelming evidence of Moore’s guilt, it was not an
unreasonable application of Strickland for the Nevada Supreme Court to find he
was not prejudiced by his counsel’s failure to object to victim impact testimony.
Moore admitted to two witnesses that he was the getaway driver. The gun store
sold Moore the exact rifle used in the robbery just five days before it occurred.
Moore’s friend saw him carrying the rifle to his car just hours before the robbery.
A DNA specialist found blood on money recovered from Moore’s car.
6. We reverse the district court’s decision that Moore exhausted his claim
that the jury instruction violated his federal right to due process, and we dismiss
the claim. Moore failed to exhaust this claim, because he failed to alert the state
court “to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (emphasis added). Instead, Moore strictly limited his jury-instruction claim
to questions of state law before the Nevada Supreme Court.
Moore’s claim is now barred by AEDPA’s one-year statute of limitations.
See 28 U.S.C. § 2244(d)(1). Further, Moore would not be entitled to stay and
abeyance to exhaust his claim, because he failed to show “good cause for his
-5-
failure to exhaust.” Rhines v. Weber, 544 U.S. 269, 278 (2005). Good cause for
failure to exhaust does not require “extraordinary circumstances,” Jackson v. Roe,
425 F.3d 654, 661-62 (9th Cir. 2005), but Moore has failed to point to any
evidence that would support such a showing.
7. Given these determinations, Moore is not entitled to relief based on
cumulative error. See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007). 1
The judgment of the district court is AFFIRMED in part and REVERSED
in part. Each party shall bear their own costs.
1
The district court also denied relief on Moore’s claim that counsel was
ineffective for failing to raise a Batson issue on direct appeal. We decline to
expand the COA in order to consider this claim. See 9th Cir. R. 22–1(e).
-6-