Moore v. Little

Filing 53

MEMORANDUM DECISION AND ORDER Petitioner's Motion for Reconsideration (Dkt. 48 ) is DENIED IN PART and NOTED IN PART as set forth above. Petitione's Motion to Rule in Favor of Petitioner Due to Ineffective Assistance of Counsel and Other Constitutional Violation (Dkt. 51) is DENIED IN PART and NOTED IN PART as set forth above. Claim 2(e) of the Petition for Writ of Habeas Corpus (Dkt. 3 )the only claim remaining in this actionis DENIED, and this entire action is DISMISSED with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ALBERT MOORE,
Case No. 1:13-cv-00007-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
STEVE LITTLE,
Respondent.

Pending before the Court is Petitioner Albert Moore’s Petition for Writ of Habeas
Corpus, challenging his Ada County conviction for driving under the influence. (Dkt. 3.)
The Petition is now fully briefed and ripe for adjudication. (Dkt. 50, 511.) Also pending is
Petitioner’s Motion for Reconsideration (Dkt. 48) of the Court’s July 17, 2015 Order
dismissing, as procedurally defaulted, all of Petitioner’s claims other than Claim 2(e) (see
Dkt. 46).
All parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. (Dkt. 11.) Having carefully reviewed the record in this
matter, including the state court record, the Court concludes that oral argument is

Petitioner’s Motion to Rule in Favor of Petitioner Due to Ineffective Assistance of Counsel and
Other Constitutional Violation (Dkt. 51) appears to have been intended as Petitioner’s reply in support of
the Petition, and the Court construes it as such. Therefore, the Court will note that portion of the Motion.
1

MEMORANDUM DECISION AND ORDER - 1

unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
Order denying habeas corpus relief on Claim 2(e) and dismissing this case with prejudice.
BACKGROUND
The factual and procedural background with respect to Petitioner’s DUI conviction
and his state postconviction proceedings (for the conviction at issue as well as a separate
DUI conviction) are set forth in detail in the Court’s July 17, 2015 Order (Dkt. 46), as
well as the Court’s December 30, 2013 Order in Petitioner’s other habeas corpus case
(see Dkt. 38 in Moore v. Kirkham, Case No. 1:12-cv-00547-CWD, 2013 WL 6858450
(D. Idaho Dec. 30, 2013). That background will not be repeated here except as necessary
to explain the Court’s decision.
Petitioner pleaded guilty to felony driving under the influence (“DUI”) in the
Fourth Judicial District Court in Ada County, Idaho. Idaho’s DUI statute allows a
misdemeanor charge to be enhanced to a felony if the defendant has had two or more
similar DUI convictions within ten years. Idaho Code § 18-8005(5). The statute provides
that an out-of-state conviction can count toward a felony enhancement if the “foreign
criminal violation” is “substantially conforming” to Idaho’s DUI statute. Id. Whether a
foreign statute is substantially conforming to the Idaho DUI statute “is a question of law
to be determined by the court.” Id. § 18-8005(8).
In Petitioner’s case, the felony enhancement was based on two previous DUI
convictions: one from Idaho and one from North Dakota. State v. Moore, 231 P.3d 532,
535-36 (Idaho Ct. App. 2010). After pleading guilty, Petitioner received a unified
sentence of six years in prison with one year fixed.
MEMORANDUM DECISION AND ORDER - 2

The only claim remaining in this habeas matter is Claim 2(e)—that Petitioner’s
attorney rendered constitutionally ineffective assistance in failing to obtain transcripts
relating to the North Dakota conviction.
PETITIONER’S MOTION TO RECONSIDER
PROCEDURAL DEFAULT RULING
On July 17, 2015, this Court held that all of Petitioner’s claims other than Claim
2(e) were procedurally defaulted and that Petitioner had not established an excuse for the
default. (Dkt. 46.) Therefore, those claims were dismissed with prejudice.
Petitioner now asks the Court to reconsider its procedural default ruling. (Dkt. 48.)
An order that is issued before final judgment, such as the Court’s procedural default
Order, is known as an interlocutory order. A federal court has the “inherent procedural
power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be
sufficient.” City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.
2001) (internal quotation marks and emphasis omitted). Although courts have authority to
reconsider prior orders, they “should be loath to do so in the absence of extraordinary
circumstances such as where the initial decision was ‘clearly erroneous and would work a
manifest injustice.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988) (quoting Arizona v. California, 460 U.S. 605, 618 n. 8 (1983)).
Petitioner’s Motion for Reconsideration appears to argue the merits of his claims.
To the extent that the Motion contains Petitioner’s position with respect to Claim 2(e),
the Court has considered that position. To the extent that Petitioner asks the Court to
change its mind regarding procedural default, Petitioner has not shown manifest injustice
MEMORANDUM DECISION AND ORDER - 3

or any other basis for reconsideration. Petitioner’s Motion does not address the
procedural default issue. Therefore, the Motion will be denied in part (as to the
procedural default issue) and noted in part (as to Petitioner’s arguments regarding the
merits of Claim 2(e)).
The Court now turns to the merits of Claim 2(e).
HABEAS CORPUS STANDARD OF LAW
Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment when the federal court determines that the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances
where the state court’s adjudication of the petitioner’s claim
(1)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d). Although a federal habeas court reviews the state court’s “last
reasoned decision” in determining whether a petitioner is entitled to relief. Ylst v.
Nunnemaker, 501 U.S. 797, 804 (1991), a state court need not “give reasons before its
decision can be deemed to have been ‘adjudicated on the merits’” under § 2254(d).
Harrington v. Richter, 562 U.S. 86, 100 (2011).
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When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that
fair-minded jurists could disagree on the correctness of the state court’s decision, then
relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102
MEMORANDUM DECISION AND ORDER - 5

(2011). The Supreme Court has emphasized that “even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. (internal citation
omitted). That Court recently reaffirmed that to be entitled to habeas relief under §
2254(d)(1), “a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (internal quotation marks
omitted).
Though the source of clearly established federal law must come from the holdings
of the United States Supreme Court, circuit precedent may be persuasive authority for
determining whether a state court decision is an unreasonable application of Supreme
Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). However,
circuit law may not be used “to refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013).
As to the facts, the United States Supreme Court has clarified “that review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). This means that
evidence not presented to the state court may not be introduced on federal habeas review
if a claim was adjudicated on the merits in state court and if the underlying factual
determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d
984, 999 (9th Cir. 2014).
MEMORANDUM DECISION AND ORDER - 6

When a petitioner contests the reasonableness of the state court’s factual
determinations, the petitioner must show that the state court decision was based upon
factual determinations that were “unreasonable . . . in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2). A “state-court factual determination
is not unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).
The United States Court of Appeals for the Ninth Circuit has identified five types
of unreasonable factual determinations that result from procedural flaws that occurred in
state court proceedings: (1) when state courts fail to make a finding of fact; (2) when
courts mistakenly make factual findings under the wrong legal standard; (3) when “the
fact-finding process itself is defective,” such as when a state court “makes evidentiary
findings without holding a hearing”; (4) when courts “plainly misapprehend or misstate
the record in making their findings, and the misapprehension goes to a material factual
issue that is central to petitioner’s claim”; or (5) when “the state court has before it, yet
apparently ignores, evidence that supports petitioner’s claim.” Taylor v. Maddox, 366
F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
This strict deferential standard of § 2254(d) applies to habeas claims except in the
following narrow circumstances: (1) where the state appellate court did not decide a
properly-asserted federal claim; (2) where the state court’s factual findings are
unreasonable under § 2254(d)(2); or (3) where an adequate excuse for the procedural
MEMORANDUM DECISION AND ORDER - 7

default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In those
circumstances, the federal district court reviews the claim de novo. In such a case, as in
the pre-AEDPA era, a district court can draw from both United States Supreme Court and
well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane,
489 U.S. 288 (1989).
Under de novo review, if the factual findings of the state court are not
unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. §
2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a
state court factual determination is unreasonable, or if there are no state court factual
findings, the federal court is not limited by § 2254(e)(1). Rather, the federal district court
may consider evidence outside the state court record, except to the extent that §
2254(e)(2) might apply. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
DISCUSSION OF CLAIM 2(e)
In Claim 2(e), Plaintiff alleges his counsel was ineffective in failing to obtain the
transcripts that related to Petitioner’s previous North Dakota DUI conviction. He asserts
that the transcripts would have shown that the North Dakota conviction could not, under
Idaho law, be used to enhance the DUI charge at issue in this case. (Pet., Dkt. 3 at 7.)
1.

Clearly-Established Law
The Sixth Amendment to the United States Constitution provides that a criminal

defendant has a right to the effective assistance of counsel in his defense. The standard
for ineffective assistance of counsel claims was identified in Strickland v. Washington,
466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel must show
MEMORANDUM DECISION AND ORDER - 8

that (1) “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and (2) those errors “deprive[d] the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense, “are virtually
unchallengeable” if “made after thorough investigation of law and facts relevant to
plausible options.” Strickland, 466 U.S. at 690. Moreover, an attorney who decides not to

MEMORANDUM DECISION AND ORDER - 9

investigate a potential defense theory is not ineffective so long as the decision to forego
investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91.
The Ninth Circuit has provided some insight into the Strickland standard when
evaluating an attorney’s “strategy calls.” These cases are instructive in the Court’s
assessment of whether the state court reasonably applied Strickland. Duhaime, 200 F.3d
at 600. First, tactical decisions do not constitute ineffective assistance simply because, in
retrospect, better tactics are known to have been available. Bashor v. Risley, 730 F.2d
1228, 1241 (9th Cir. 1984). Second, a mere difference of opinion as to tactics does not
render counsel’s assistance ineffective. United States v. Mayo, 646 F.2d 369, 375 (9th
Cir. 1981).
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
MEMORANDUM DECISION AND ORDER - 10

errors, the result of the proceeding would have been different.” Id. at 694. As the
Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112.
To show prejudice based on deficient performance of counsel in a case where, as
here, the petitioner pleaded guilty, the petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
When evaluating a claim of ineffective assistance of counsel in a federal habeas
proceeding under § 2254(d), the Court’s review of that claim is “doubly deferential.”
Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

MEMORANDUM DECISION AND ORDER - 11

2.

State Court Decision
Because the state court’s decision on Claim 2(e) is based primarily on its decision

in Petitioner’s direct appeal, a brief description of that decision is necessary. Petitioner’s
direct appeal in the underlying case was consolidated with his direct appeal from his
other DUI conviction. Moore, 231 P.3d at 532. The Idaho Court of Appeals held that the
North Dakota statute substantially conformed to the Idaho DUI statute. In so holding, the
court determined that North Dakota’s interpretation of its DUI statute was not
controlling; instead, the court examined the plain language of both statutes in reaching its
decision. (Id. at 543-44.)
On appeal from the dismissal of Petitioner’s postconviction petition in this case,
Petitioner claimed that the transcripts of his guilty plea and sentencing hearing in the
North Dakota case were necessary “to illustrate [that]‘the factual basis for the North
Dakota conviction would not amount to the factual basis for a crime in Idaho.’” (State’s
Lodging J-7 at 5.) Therefore, Petitioner argued, his attorney was ineffective in failing to
obtain and examine the transcripts, which would have shown that the North Dakota
statute did not substantially conform to the Idaho statute.
In rejecting this claim, the Idaho Court of Appeals concluded that the transcripts
related to the North Dakota conviction would not have been used to determine whether
the North Dakota statute substantially conformed to Idaho’s DUI statute. As the court had
previously held in Petitioner’s direct appeal, it is the plain language of the statutes that
are relevant in determining substantial conformance—not the facts of the particular
conviction. The transcripts were irrelevant. Therefore, the court held, Petitioner could not
MEMORANDUM DECISION AND ORDER - 12

establish either that his counsel performed deficiently in failing to obtain the transcripts
or that Petitioner was prejudiced by that failure:
[T]his court has already determined that the factual basis of
the foreign conviction is not relevant because a court will
look only to the elements of the statute. Counsel cannot be
ineffective for failing to obtain or present irrelevant
information under the proposed theory of law. [Petitioner’s]
ineffective assistance of counsel claim must fail because he
cannot demonstrate his counsel provided deficient
performance, or that the deficiency caused him prejudice.
(Id. at 6 (emphasis added).)
3.

Petitioner Is Not Entitled to Relief on Claim 2(e)
In considering Claim 2(e), the Idaho Court of Appeals correctly cited Strickland as

the governing federal law applicable to claims of ineffective assistance of counsel.
(State’s Lodging J-7 at 5.) Further, the court’s rejection of the claim was based on its
previous decisions that (1) the facts underlying a foreign conviction are irrelevant for
purposes of determining substantial conformance, and (2) the North Dakota statute, in
fact, did substantially conform to Idaho’s DUI statute. These conclusions—which are
based entirely on the state court’s interpretation of state law, see Moore, 231 P.3d at 54344—are not subject to challenge in this federal habeas proceeding, see Lewis v. Jeffers,
497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state
law.”).
The North Dakota statute—on its face—substantially conformed to Idaho’s DUI
statute, and it was thus appropriately used to enhance Petitioner’s DUI charge to a felony
under Idaho law. See Idaho Code §§ 18-8004, 18-8005(5). The transcripts were irrelevant

MEMORANDUM DECISION AND ORDER - 13

and would not have been used to determine substantial conformance. It follows, then, that
the Idaho Court of Appeals reasonably determined Petitioner could not show that his
counsel rendered ineffective assistance in failing to obtain those transcripts. See 28
U.S.C. §2254(d).
CONCLUSION
For the foregoing reasons, Petitioner is not entitled to habeas relief on Claim 2(e).
Further, the Court does not find sufficient cause to reconsider its July 17, 2015 Order,
which dismissed all of Petitioner’s other claims as procedurally defaulted. Therefore, this
entire action must be dismissed.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Reconsideration (Dkt. 48) is DENIED IN PART
and NOTED IN PART as set forth above.

2.

Petitioner’s Motion to Rule in Favor of Petitioner Due to Ineffective
Assistance of Counsel and Other Constitutional Violation (Dkt. 51) is
DENIED IN PART and NOTED IN PART as set forth above.

3.

Claim 2(e) of the Petition for Writ of Habeas Corpus (Dkt. 3)—the only
claim remaining in this action—is DENIED, and this entire action is
DISMISSED with prejudice.

4.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a

MEMORANDUM DECISION AND ORDER - 14

timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: January 8, 2016

Honorable Ronald E. Bush
United States Magistrate Judge

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