Moore v. Bird

Background

Lamont N. Moore, representing himself, filed a petition under 28 U.S.C. § 2254, the federal procedure allowing a person in state custody to challenge the validity of a conviction or sentence. The petition challenged his 20-year California sentence. Moore argued that the sentence exceeded the maximum allowed by law and was based on findings made by the sentencing judge rather than by a jury.

Moore had pleaded no contest under a plea agreement to forcible rape, forcible oral copulation, and a lesser included assault offense. He agreed to a 20-year sentence, and the state court later imposed that sentence. His direct appeal challenged only the denial of his request to withdraw the plea. His later state habeas petition raised ineffective assistance of counsel, judicial misconduct and bias, and delay in bringing the charges, but did not raise the sentencing claim.

In an earlier screening order, the court dismissed with prejudice claims involving ineffective assistance of trial counsel, prosecutorial misconduct, judicial misconduct, and pre-indictment delay because they concerned alleged constitutional violations occurring before the guilty plea. The court dismissed with leave to amend two other claims involving counsel’s performance and the prosecution’s alleged withholding of favorable evidence.

Motion to Extend Time and Proposed Amendment

The court granted Moore’s request for an extension of time to file an amended petition and treated his later filing as timely. It denied his request for leave to file that proposed amended petition.

The court gave three reasons. First, the proposed amendment did not include the sentencing claim, and an amended petition would replace the earlier petition. The court therefore concluded that allowing the amendment could cause Moore to waive the sentencing claim, and it was unclear that he intended to do so.

Second, the proposed claims that counsel was ineffective and that the judge committed misconduct concerned events before Moore’s guilty plea. The court ruled that those claims were not cognizable in this federal habeas proceeding, meaning they could not provide a basis for relief in the form sought.

Third, the court construed Moore’s allegation that Judge Morris Jacobson threatened to sentence him to 129 years to life unless he accepted the plea as a potentially cognizable claim that his guilty plea was involuntary. But the court found that Moore had not exhausted that claim in state court. Exhaustion requires presenting both the factual basis and the federal constitutional basis of a claim to the highest available state court. Because Moore had not presented the alleged threat or the claim that it made his plea involuntary to the California Supreme Court, the court concluded that amendment would be futile and denied leave to amend.

Claims Raised in a Later Filing

Moore’s later filing raised additional challenges to the validity of his plea and conviction. The court declined to consider those claims because they had not been raised in the operative petition or proposed amended petition and had not been presented to the California Supreme Court. The court also stated that a later response to an opposing party’s filing is not the proper pleading for adding new grounds for relief.

Sentencing Claim

The court agreed that Moore’s sentencing claim was unexhausted because neither his petition for review nor his state habeas petition gave the California Supreme Court a fair opportunity to decide it. Ordinarily, a federal court may not grant relief on an unexhausted claim. However, the court explained that it could deny such a claim on the merits.

The court denied the sentencing claim on the merits. It ruled that Moore’s sentence did not exceed the maximum allowed under California law. The individual terms were authorized by state statutes, and the consecutive terms were permissible because the plea agreement authorized them and involved different victims for some offenses. The court also ruled that the sentence did not violate the rule requiring certain facts that increase a sentence beyond the statutory maximum to be found by a jury. Moore had pleaded guilty and, as part of the plea agreement, accepted the upper terms and fully consecutive sentences.

Disposition

The court granted the extension of time effective as of the relevant earlier deadline, denied leave to file the proposed amended petition, denied the petition for a writ of habeas corpus on the merits, and denied a certificate of appealability. A certificate of appealability is required for an appeal in this type of federal habeas case, and the court found that Moore had not made the required showing that reasonable judges could debate the court’s assessment of his constitutional claims. The clerk was directed to enter judgment for Respondent Matthew McVay and against Moore.