Moore v. Steele
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Moore's petition for writ of habeas corpus [# 1 ] is denied. IT IS FURTHER ORDERED that: Moore's motion for summary judgment [# 15 ] is denied. Moore's renewed motion to compel [# 31 ] is denied. Moore's motion for extension of time to complete discovery and file traverse [# 34 ] is denied as moot. IT IS FINALLY ORDERED that Moore's motion for oral argument or, alternatively, an evidentiary hearing [# 36 ] is denied. Signed by District Judge Catherine D. Perry on June 18, 2013. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:12CV1174 CDP
MEMORANDUM AND ORDER
Pro se petitioner Victor Moore is currently incarcerated at the Potosi
Correctional Center in Mineral Point, Missouri. Moore pled guilty to one count of
forgery, a Class C felony, in Missouri state court. He was sentenced, as a prior and
persistent offender, to 15 years of incarceration, to be served concurrently with
This matter is now before me on Moore’s petition for writ of habeas corpus
under 28 U.S.C. ' 2254, as well as four motions by Moore. All of Moore’s habeas
claims arise from his contention that the Missouri courts violated Missouri’s law
on detainers and did not bring him to trial with the time limits set by state law.
None of the grounds for relief raised by Moore are cognizable upon federal habeas
review, so I will deny his petition. I will also deny his remaining motions for the
reasons set forth below.1
In March 2008, Moore was on bond and awaiting sentencing in a 10-count
forgery case in the Circuit Court of St. Louis County. During that month, Moore
visited several banks in the St. Louis area and attempted to cash four counterfeit
checks made payable to himself. Three of the checks were written from a Missouri
Department of Corrections (MDOC) payroll account. One of the checks had been
stolen from an individual and was drawn on her personal account.
On March 22, 2008, Moore attempted to pass one of the fraudulent payroll
checks at a bank on New Ballas Road. A bank teller became suspicious and called
the police. The police stopped Moore as he was driving away from the bank, and
the teller identified him. He was arrested and read his Miranda rights. Moore
wrote out a confession in which he described his involvement in a fraudulent
check-writing scheme using MDOC’s payroll checks. Moore also admitted to
using the individual’s stolen check. Additionally, thumbprints on two of the
payroll checks – required in order to cash them – matched Moore’s own
The other pending motions are for summary judgment; to compel discovery; for an extension
of time to complete discovery and file a traverse; and for oral argument or a hearing.
Each of Moore’s four attempts to pass a fraudulent check became a separate
criminal case. On March 23, 2008, Moore was charged by complaint2 with one
count of forgery for the check he attempted to cash on New Ballas Road (Cause
No. 08SL-CR01891). He posted bond but failed to appear for later court
proceedings. A warrant was issued against him, and he was re-arrested in June
2008. Upon his re-arrest, Moore was sentenced to fifteen years’ imprisonment in
MDOC for the 10 counts of forgery in the earlier case.
While he was serving that time, St. Louis County Justice Services lodged a
detainer against him, based on the March 2008 New Ballas Road forgery. He
signed a notice of that detainer on July 16, 2008. On the same date, he applied for
public defender services and wrote a letter to the St. Louis County Public
Defender’s Office, informing the office of his charges. In that letter, Moore wrote,
“I’ve signed my detainer notice on 7-16-08 requesting a 180 day speedy trial.”
(L.F., p. 77.) According to later testimony by Moore’s plea counsel, Moore
believed that his acknowledgment of the detainer notice doubled as a request for
speedy disposition of the detainer under the Uniform Mandatory Disposition of
Detainers Law (UMDDL), Mo. Rev. Stat. § 217.450 et seq. According to Moore,
The complaint was later replaced by an indictment. (Resp.’s Ex. A, Legal File, pp. 7–8.)
however, he signed a request that same day that complied with the UMDDL, but
Missouri state officials did not forward it to the appropriate party.
On January 21, 2009, Moore wrote to the St. Louis County Circuit Court
Clerk, inquiring about the detainer request he believed he had filed. Two days
later, he signed a UMDDL-compliant request for disposition of detainers form,
which was filed with the Circuit Court on February 9, 2009. Pursuant to the
UMDDL, the court imposed a speedy trial date of August 8, 2009, 180 days after
the date on which Moore’s request was filed with the court.
After attempts to negotiate a plea bargain failed, Moore entered a blind
guilty plea. On August 7, 2009, he was sentenced as a prior and persistent
offender in Missouri state court to 15 years’ incarceration, to be served
concurrently with three 5-year sentences for the other forged checks he attempted
to cash in March 2008, as well as the 15 years he was already serving for the
earlier forgery case.
Post-Conviction Relief Motion3
On November 9, 2009, Moore filed a pro se motion to vacate, set aside or
correct his judgment or sentence under Missouri Supreme Court Rule 24.035.
Moore was appointed counsel, who amended the motion and requested an
Although Moore pled guilty to and was sentenced for four counts of forgery at the same time,
his post-conviction motion and this habeas petition relate only to his conviction for the New
Ballas Road forgery.
evidentiary hearing. In the amended motion, Moore asserted two grounds for
relief: (1) that the plea court had not had jurisdiction to pronounce judgment
against him or impose a sentence because he was not brought to trial within 180
days of his July 2008 request for disposition of detainers; and (2) that his plea
counsel had been ineffective for waiving Moore’s otherwise valid request for
disposition of detainers without good cause and without his permission by not
investigating whether he had made such a request and by advising him to plead
Both of Moore’s grounds for relief were premised upon the UMDDL. The
UMDDL provides that a person confined to the MDOC who has a detainer pending
against him may file a written request to dispose of that detainer. Mo. Rev. Stat. §
217.450(1). If that request complies with certain procedural requirements, the
untried charges listed in the detainer must be brought to trial within 180 days (or
longer for good cause) or the court loses jurisdiction over those charges.4 Id.; see
also State v. Williams, 120 S.W.3d 294, 299 (Mo. Ct. App. 2003).
After receiving a response to Moore’s amended motion and a motion to
dismiss from the prosecuting attorney, the motion court granted Moore’s request
for a hearing. On April 30, 2010, an evidentiary hearing was held, at which both
Missouri’s UMDDL was amended in 2009 and now provides that state officials’ failure to
comply with the UMDDL “shall not be the basis for dismissing the indictment, information, or
complaint unless the court also finds that the offender has been denied his or her constitutional
right to a speedy trial.” Mo. Rev. Stat. § 217.450(3).
Moore and his plea counsel testified.5 Moore testified that on the same date he
signed the notice of detainer, July 16, 2008, he made a written request for
disposition of detainers. Among other things, the counsel testified that Moore had
told her he believed his July 2008 acknowledgement of the pending detainer
doubled as a request for speedy disposition of that detainer. She testified that she
had explained to him that the acknowledgement was not sufficient to request
After the hearing, the motion court entered findings of fact and conclusions
of law. The court acknowledged that Moore filed a request for disposition of
detainers on February 9, 2009, and that request complied with the UMDDL. But
the court found that none of the correspondence Moore initiated in July 2008
complied with the UMDDL’s requirements for disposition of detainer requests.
Therefore, it held, Moore had provided no credible evidence of entering an earlier,
procedurally proper request for disposition of detainers.
Ultimately, the motion court concluded that it had entered judgment against
Moore, and had sentenced him, within the 180-day period following his only
procedurally proper request. As for Moore’s ineffective assistance of counsel
claim, it held that any investigation by trial counsel or motion to dismiss premised
on violation of the UMDDL would have had no reasonable probability of success,
Additional testimony from plea counsel was taken on August 5, 2010.
so Moore had not proven prejudice as required by the ineffective-assistance test set
out in Strickland v. Washington, 466 U.S. 668 (1984).
Moore appealed pro se to the Missouri Court of Appeals for the Eastern
District, asserting the same two grounds for relief. The court affirmed the motion
court in a memorandum opinion. As for his first ground for relief, the court noted
that the only evidence of a July 16, 2008 written request for disposition of
detainers was Moore’s own testimony. Moore had not provided “any credible
evidence that he substantially complied with the requirements of the UMDDL,” so
the motion court had not erred in denying Moore’s first ground for relief. (Resp.’s
Ex. D, Mem., p. 4.)
In considering his second ground for relief, the appellate court noted that
plea counsel had testified about her discussion with Moore and subsequent
investigation of any July 2008 request for disposition of detainers. The court
reasoned that without a procedurally proper request, any action by plea counsel
premised on the UMDDL would have been futile. Therefore, the court held,
Moore was unable to prove either deficiency or prejudice, the two prongs of the
Strickland ineffective-assistance-of-counsel test.
Moore has raised three grounds for relief in this petition for writ of habeas
corpus. First, he contends that the motion court erred in denying his Rule 24.035
motion and finding that the plea court had jurisdiction to hear his plea and sentence
him, in violation of his right to speedy disposition of detainers under Missouri’s
Second, Moore claims that the Court of Appeals for the Eastern District of
Missouri erred by denying him a re-hearing and denying transfer to the Supreme
Court of Missouri. He claims that the appellate court misapplied the UMDDL by
affirming the lower court despite its failure to rule upon his pro se motion to
dismiss and to deny his right to be present and testify at a hearing (presumably the
continuation of the evidentiary hearing on August 5, 2010).
Finally, Moore alleges that the Court of Appeals erred in ruling that he had
no right to post-conviction counsel. Construing his petition liberally, see Frey v.
Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996), Moore also argues that his postconviction counsel was ineffective for failing to present evidence or witnesses at
the evidentiary hearing or its continuation.
Under 28 U.S.C. § 2254(d), a federal court may grant habeas relief on a
claim decided on the merits in state court only if that adjudication:
(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)(1)-(2). “A state court decision is contrary to clearly
established federal law only if the state court arrives at a conclusion opposite to
that reached by the Supreme Court on a question of law or if the state court decides
a case differently that the Supreme Court has on a set of materially
indistinguishable facts.” Restucci v. Spencer, 249 F. Supp. 2d 33, 42 (8th Cir.
2003) (internal quotation marks and brackets omitted).
First Ground for Relief: UMDDL
As his first ground for relief, Moore contends that Missouri state officials=
violation of the UMDDL entitles him to federal habeas relief. Federal habeas
relief is available to a state prisoner only on the ground that he is in custody in
violation of a constitutional or federal statutory right. Williams-Bey v. Trickey, 894
F.2d 314, 317 (8th Cir. 1990); 28 U.S.C. ' 2254(a). A claim that custody of a state
prisoner violates a state law may be addressed only by state courts. Poe v.
Caspari, 39 F.3d 204, 207 (8th Cir. 1994). The Eighth Circuit has characterized
Missouri=s UMDDL as a Astate speedy trial law,@ id., and a claim that it has been
violated may only be addressed by Missouri courts. Without more, a claim that
Missouri officials violated the UMDDL Ais not cognizable in habeas and does not
justify relief under ' 2254.@ Id. See also Wingo v. Mueller, No. 4:09CV88 CAS,
2009 WL 198264 (E.D. Mo. Jan. 26, 2009) (summarily dismissing pretrial habeas
petition brought on UMDDL grounds).
In later-filed briefs, Moore states that this first ground for relief also
encompasses an allegation with a federal component. (See, e.g., Doc. Nos. 33, pp.
9–10, and 38, pp. 4–5, 11–13.) He alleges that his Sixth and Fourteenth
Amendment rights to a speedy trial were violated by the state officials’ failure to
comply with Missouri’s UMDDL. This is merely a corollary of Moore’s argument
about the UMDDL and relies upon no separate factual allegations. The Eighth
Circuit has rejected a nearly identical statement as a state-law claim in disguise.
Poe, 39 F.3d at 207. As such, it is not cognizable on habeas review. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 67B68 (1991); Chambers v. Bowersox, 157 F.3d
560, 564 (8th Cir. 1998); Crenshaw v. Larkins, No. 4:09CV336 JCH, 2012 WL
886823 (E.D. Mo. Mar. 15, 2012) (denying as non-cognizable claim that violation
of UMDDL infringed petitioner=s speedy trial and due process rights). Because
Moore’s first ground for relief does not present any federal claim reviewable on
habeas petition, it is denied.
Second Ground for Relief
Moore’s second ground for relief comprises several allegations. Moore first
claims that the Court of Appeals for the Eastern District of Missouri erred in
denying him an open court hearing. Because he did not file a direct appeal, this
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presumably means a hearing on his post-conviction motion. There is no federal
constitutional or statutory right to a hearing on a post-conviction motion, so
Moore’s claim is not cognizable at this stage of the case. See Losh v. Fabian, 592
F.3d 820, 824 (8th Cir. 2010) (citing Pennsylvania v. Finley, 481 U.S. 551, 556–57
(1987)); United States ex rel. Jones v. Chrans, 187 F. Supp. 2d 993, 1002 (N.D. Ill.
2002) (“there is no federal right to a post-conviction hearing in state court”).
Moore also claims that the Court of Appeals erred by denying him a
rehearing on his post-conviction motion and by denying him transfer to the
Supreme Court of Missouri. Even assuming the denials of rehearing and transfer
were errors, they would not entitle Moore to federal habeas corpus relief because
these claims represent an attack on a proceeding collateral to his detention, and not
on the detention itself. Like his allegation that he was improperly denied a postconviction hearing, these claims are not cognizable on federal habeas review. See
Kenley v. Bowersox, 228 F.3d 934, 938 (8th Cir. 2000) ( “[Section] 2254 court is
not an appropriate forum for a prisoner who wishes to challenge the process
afforded him in state post-conviction proceedings”), vacated, 228 F.3d 934 (8th
Cir. 2000); accord Williams-Bey, 894 F.2d at 317; Williams v. State of Missouri,
640 F.2d 140, 143–44 (8th Cir. 1981).
Finally, in his enumerated list of facts supporting this ground, Moore alludes
to what he considers two errors by the Rule 24.035 motion court: that it did not
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hear his pro se motion to dismiss6 and that it denied him the right to be present and
testify at the second evidentiary hearing.7 Again, these allegations attack the
propriety of Moore’s post-conviction proceedings, and as such, they are not
cognizable on federal habeas review. Even if they were, they would be
procedurally barred because they were not presented to the state appeals court, and
Moore gives no reason for failing to do so. See, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 848 (1999).
Third Ground for Relief
In his final ground for relief, Moore alleges that the appellate court erred in
ruling that he had no right to post-conviction counsel. He also alleges that his
post-conviction counsel “failed to present evidence and witnesses” at the
evidentiary hearing or its continuation, which I will construe as a claim of
ineffective assistance of post-conviction counsel.
There is no federal constitutional or statutory right to post-conviction
counsel. Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994) (citing Coleman v.
Moore may be referring to his pro se Rule 24.035 motion for post-conviction relief, which was
amended by counsel February 22, 2010, and was thereby superseded. (See L.F., p. 47.)
Moore presumably is referring to the second evidentiary hearing concerning his request for
disposition of detainers under the UMDDL. That second hearing took place on August 5, 2010.
On that date, the trial court took further testimony from Moore’s trial counsel, who had
remembered more specific information about her conversations with Moore in the interim.
Though the record is not conclusive, it appears Moore did not attend the second hearing. (See
L.F., p. 88.) His post-conviction counsel was there and cross-examined Moore’s trial counsel.
(See Resp.’s Ex. F.)
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Thompson, 501 U.S. 722, 751–53 (1991)). Therefore, Moore’s claim that the
appellate court erred in so ruling is not cognizable on upon habeas review.
Consequently, a petitioner has no federal right to effective assistance from postconviction counsel. Foster, 39 F.3d at 877; Sidebottom v. Delo, 46 F.3d 744, 751
(8th Cir. 1995). Therefore, Moore’s claim that his post-conviction counsel was
ineffective is also not reviewable.
Moore argues that Coleman and its progeny were wrongly decided and that
he does have a right to effective assistance from post-conviction counsel. In
support of this argument, he points to Maryland case law applying the Strickland
ineffective-assistance test to the performance of post-conviction counsel. See
Stovall v. State, 800 A.2d 31, 37–38 (Md. Ct. App. 2002). Though Moore is
correct that the Stovall court found petitioner in that case had a right to postconviction counsel, this right was derived from Maryland state law, which the
court recognized was broader than the right to counsel enshrined in the United
States Constitution. Id. at 37.
The United States Supreme Court has recently held that, in states where
post-conviction proceedings are a prisoner’s first chance to raise a “substantial
claim of ineffective assistance at trial,” a federal habeas court will not be barred
from hearing that claim if the petitioner’s post-conviction counsel was ineffective
and failed to raise the claim in the state post-conviction proceeding. Martinez v.
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Ryan, 132 S. Ct. 1309, 1320 (2012) (emphasis added); see also Trevino v. Thaler,
133 S. Ct. 1911, 1914 (2013) (extending Martinez). Under Martinez and Trevino,
ineffective assistance of post-conviction counsel may excuse (in part) a petitioner’s
failure to raise, at the state level, a claim that trial counsel was ineffective.
Nonetheless, these cases do not establish that a petitioner has a stand-alone
right to effective assistance from his post-conviction counsel. Instead, they merely
ensure that a petitioner who has a claim of ineffective trial counsel gets “his day in
court” when the ineffectiveness of post-conviction counsel prevented that during
an initial post-conviction proceeding. Arnold v. Dormire, 675 F.3d 1082, 1087
(8th Cir. 2012) (Martinez did not apply where petitioner’s post-conviction counsel
did not preserve claims on appeal). This is not the situation in this case.
Based on the foregoing, Moore’s third ground for relief is denied.
Summary Judgment Motion
Respondent Steele’s answer to this court’s show cause order was initially
due September 17, 2012. On that date, Steele requested an extension of time,
which I granted the same day, extending the response deadline to October 9, 2012.
I eventually granted a second extension, and Steele filed its response before that
time expired. In the meantime, Moore moved for summary judgment, arguing that
Steele did not timely respond to the show cause order.
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Motions for summary judgment are not particularly appropriate in habeas
cases. See Hall v. Edwards, 4:13CV 556 TIA, 2013 WL 1890699, at *1 (E.D. Mo.
May 6, 2013) (summary judgment motion “is not the proper vehicle to determine
the merits of [a habeas] petition”); Cantrell v. Norris, 5:05CV356, 2007 WL
772568, at *1(E.D. Ark. March 9, 2007) (“[T]he Rules Governing § 2254 cases
and the habeas statutes do not contemplate disposition of habeas petitions by
motion for summary judgment.”).
Even if it were a suitable method of resolving this petition, Moore’s
summary judgment motion would be without merit. A party which moves for
summary judgment bears the burden of establishing that that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Rule 56(c)(1). Steele’s response was not
untimely, see Fed. R. Civ. P. 6(b)(1)(A), so Moore is not entitled to judgment as a
matter of law. Therefore, I will deny his motion.
Renewed Motion to Compel
Steele attached exhibits to his response to the show cause order. Moore
attested that he had not received the exhibits and moved to compel Steele to send
him copies. I granted Moore’s motion to compel on December 10, 2012. Later
that month, Moore filed a renewed motion to compel, arguing that Steele should
also be required to provide him certain discovery documents.
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Habeas petitioners are not ordinarily entitled to discovery. Bracy v.
Gramley, 520 U.S. 899 (1997). But Rule 6(a) of the Rules Governing Section
2254 Cases in the United States District Courts permits a judge to authorize
discovery for good cause. In Bracy v. Gramley, the Supreme Court laid out a twostep process for determining if a petitioner is entitled to discovery under Rule 6(a).
520 U.S. 889, 904–06 (1997). First, the court identifies the “essential elements” of
the petitioner's substantive claims. Id. at 904. Second, the court evaluates whether
the petitioner has shown good cause for the requested discovery by determining if
the petitioner's specific allegations give the court reason to believe that, if the facts
are fully developed, petitioner will be able to demonstrate that he is entitled to
relief. Id. at 908–09. When the petitioner has made such a showing, “it is the duty
of the court to provide the necessary facilities and procedures for an adequate
inquiry.” Id.; see also Newton v. Kemna, 354 F.3d 776, 783 (8th Cir. 2004).
The essential elements of Moore’s grounds for relief are alleged violations
of Missouri’s UMDDL and errors by the state post-conviction courts. These
grounds for relief do not raise any claim cognizable upon federal habeas review.
The discovery Moore requests, copies of documents related to his alleged July
2008 request for disposition of detainers, would not advance his habeas claim even
if they showed what he argues they would show. As such, Moore has not given me
any reason to believe that – with further factual development through discovery –
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he would be entitled to habeas relief. Therefore, his renewed motion to compel is
Motion for Extension of Time to Complete Discovery and File Traverse
On January 7, 2013, Moore requested more time to complete discovery and
to file a reply to Steele’s response to this court’s show cause order. As stated
above, I have found that discovery is not warranted. In addition, Moore did file a
reply (as well as a supplemental) out of time, and I considered those documents in
this memorandum and order. I will therefore deny this motion as moot.
VII. Motion for Hearing
Moore has also moved for oral argument, or alternatively, an evidentiary
hearing. In his motion, he repeats his allegations that state officials violated the
UMDDL, and as a corollary, his constitutional right to a speedy trial, by not
forwarding his July 16, 2008 request for disposition of detainers in conformance
with their duties under the UMDDL. He argues that the state courts did not fully
consider his evidence or arguments and that his post-conviction counsel did not
present corroborating witness testimony at his Rule 24.035 evidentiary hearing as
he said he would.
The circumstances in which this court may hold an evidentiary hearing in a
habeas case brought under Section 2254 are exceedingly limited. See 28 U.S.C. §
2254(e)(2); see also Hall v. Luebbers, 296 F.3d 685, 700 (8th Cir. 2002) (“To
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overcome this hurdle a petitioner must show that the claim involves a new rule of
constitutional law made retroactive to his situation, or facts that could not have
been discovered by due diligence, or sufficient facts to establish constitutional
error by clear and convincing evidence.”). Even assuming each of his allegations
were true, Moore’s grounds for relief would still not merit an evidentiary hearing
because they do not allege violations of his federal statutory or constitutional
rights. Oral argument is likewise unnecessary. See Local Rule 78–4.02 (court has
discretion over whether to order oral argument). Therefore, I will deny Moore’s
request for oral argument or, in the alternative, an evidentiary hearing.
VIII. Certificate of Appealability
Under 28 U.S.C. ' 2253, an appeal may not be taken to the court of appeals
from the final order in a 28 U.S.C. ' 2254 proceeding unless a circuit justice or
judge issues a Certificate of Appealability. 28 U.S.C. ' 2253(c)(1)(A). To grant
such a certificate, the justice or judge must find a substantial showing of the denial
of a federal constitutional right. Id. ' 2253(c)(2); see Tiedeman v. Benson, 122
F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are
debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). I find that reasonable jurists could not differ on any of Moore’s claims, so I
will deny a Certificate of Appealability on all claims.
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IT IS HEREBY ORDERED that Moore’s petition for writ of habeas
corpus [#1] is denied.
IT IS FURTHER ORDERED that:
Moore’s motion for summary judgment [#15] is denied.
Moore’s renewed motion to compel [#31] is denied.
Moore’s motion for extension of time to complete discovery and file traverse
[#34] is denied as moot.
IT IS FINALLY ORDERED that Moore’s motion for oral argument or,
alternatively, an evidentiary hearing [#36] is denied.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of June, 2013.
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