Opinion
3:10-cv-00194-ECR-RAM.
April 13, 2010
ORDER
Atiba Moore, a prisoner at Nevada State Prison, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee for this action. (Docket #1). The petition shall now be served on respondents.
A petition for federal habeas corpus should include all claims for relief of which petitioner is aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. § 2254(b) (successive petitions). If petitioner is aware of any claim not included in his petition, he should notify the Court of that as soon as possible, perhaps by means of a motion to amend his petition to add the claim.
IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE the petition (docket #1) upon the respondents.
IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. In their answer or other response, respondents shall address any claims presented by petitioner in his petition as well as any claims presented by petitioner in any Statement of Additional Claims. Respondents shall raise all potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and procedural default. Successive motions to dismiss will not be entertained. If an answer is filed, respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2254. If an answer is filed, petitioner shall have forty-five (45) days from the date of service of the answer to file a reply.
IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney General of the State of Nevada a copy of every pleading, motion, or other document he submits for consideration by the Court. Petitioner shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the Attorney General. The Court may disregard any paper that does not include a certificate of service. After respondents appear in this action, petitioner shall make such service upon the particular Deputy Attorney General assigned to the case.
PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 BY A PERSON IN STATE CUSTODY ( NOT SENTENCED TO DEATH)
Eight Judicial District Court, Clark County, Michelle Leavitt 04/14/06 / 01/19/06 / Eigth Judicial Clark County 05/18/06 / 11/20/07 / 3/26/10 Attach to this petition a copy of all state court written decisions regarding this conviction. / / C195697 5-20 Count one, 5-20 Count three Consecutive 08-01-05 — 08-01-15 Burglary, Fraudulent use of credit card, Possession of Credit card / pro se Pro se Darin F. Imlay / Darin F. Imlay, Flora v. Eichacker / Atiba M. Moore / Sharon G. Dickinson / Atiba M. Moore / Atiba M. Moore / Atiba M. Moore / Atiba M. Moore /
1. Name and location of court, and name of judge, that entered the judgment of conviction you are challenging: . 2. Full date judgment of conviction was entered: . (month/day/year) 3. Did you appeal the conviction? Yes _____ No. Date appeal decided: . 4. Did you file a petition for post-conviction relief or petition for habeas corpus in the state court? Yes _____ No. If yes, name the court and date the petition was filed: . Did you appeal from the denial of the petition for post-conviction relief or petition for writ of habeas corpus? Yes _____ No. Date the appeal was decided: . Have all of the grounds stated in this petition been presented to the state supreme court? Yes _____ No. If no, which grounds have not? _________________________ ____________________________________________________________________________________________. 5. Date you are mailing (or handing to correctional officer) this petition to this court: . 6. Is this the first federal petition for writ of habeas corpus challenging this conviction? Yes _____ No. If no, what was the prior case number? _______________. And in what court was the prior action filed? ____________________________________________________________________. Was the prior action ___ denied on the merits or _____ dismissed for procedural reasons (check one). Date of decision: _____/_____/_____. Are any of the issues in this petition raised in the prior petition? _____ Yes _____ No. If the prior case was denied on the merits, has the Ninth Circuit Court of Appeals given you permission to file this successive petition? _____ Yes _____ No. 7. Do you have any petition, application, motion or appeal (or by any other means) now pending in any court regarding the conviction that you are challenging in this action? _____ Yes No. If yes, state the name of the court and the nature of the proceedings: _________________________ ______________________________________________________________________________________________. 8. Case number of the judgment of conviction being challenged: . 9. Length and terms of sentence(s): . 10. Start date and projected release date: . 11. What was (were) the offense(s) for which you were convicted: . 12. What was your plea? _____ Guilty Not Guilty _____ Nolo Contendere. If you pleaded guilty or nolo contendere pursuant to a plea bargain, state the terms and conditions of the agreement: ____________________________________________________________________________________________. 13. Who was the attorney that represented you in the proceedings in state court? Identify whether the attorney was appointed, retained, or whether you represented yourself (without counsel). Name of Attorney Appointed Retained arraignment and plea _____ _____ trial/guilty plea _____ _____ sentencing _____ _____ direct appeal _____ _____ 1st post-conviction petition _____ _____ appeal from post conviction _____ _____ 2nd post-conviction petition _____ _____ appeal from 2nd post-conviction _____ _____ The petitioner can submit a Second petition if the first petition was not determined on the merits. In this case the previous petitions were not determined on the merits.To deny the petitioner an opportunity to have this petition determined on the merits would result in a manifest injustice and actual prejudice against the petitioner, because all the grounds that are being raised in this petition are constitutional errors that have affected the outcome of the trial and the outcome of the sentence that was given to the petitioner.
It is the petitioners wish to finally have this Petition for a writ of Habeas Corpus determined on the merits.
State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.
GROUND 1
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5th Amendment right to One Process of the Law, based on these facts:My conviction for count 1, Burglary, is unconstitutional in violation of my 5th amendment right to Due Process of the law because, the information filed in my case failed to enumerate each material element of "Fraudulent use of credit or debit card," namely, that I " obtained " anything of value or " used " the credit card and obtained anything of value." It is the defendants belief that the information filed is fataly defective because it failed to charge the offense as pled. There for the defendant has suffered actual prejudice by the information filed since count 1(one) Burglary, was predicated upon the defective information filed in count 2, fraudulent use of a debit or credit card. The Burglary was pled as the defendant, "entering with the intent to commit a felony, to-wit: theft and/or fraudulent use of a credit." The information also stated along with the jury instruction #3, that the defendant " committed " the offenses of Burglary, fraudulent use of a credit or debit card, and Possession of a credit card without cardholder's consent. Therefor since the state pled that, in the information, the state would have to prove what was pled in the information beyond a reasonable doubt. (continued on page 3-A).
Exhaustion of state court remedies regarding Ground 1:
State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.
GROUND 1 one continued
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my _____________________________ Amendment right to ______________________________, based on these facts:Furthermore, in my direct appeal to the state Supreme court, the state did not object to the court dismissing my conviction for fraudulent use of a credit card. That's the same charge that the Burglary was predicated on and the same offense that the state said the defendant "committed" in the information.
It is understood that on of the essential elements of Burglary is the entry of a building with the intent to commit grand or petit larceny, or any felony. As seen in the information on count 1 Burglary, the state has predicated that necessary intent to commit " any felony ," on the charge of Fraudulent use of a credit card. Therefor, the burglary count in the information, as presently drafted, is also fatally defective and constitutes a constitutional error.
Direct Appeal:
Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court? X Yes _____ No. If no, explain why not: ________________________ _____________________________________________.
First Post Conviction:
Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus? X Yes _____ No. If no, explain why not: ________________________ _____________________________________________.
If yes, name of court: Clark County District Court date petition filed 6/9/04. Did you receive an evidentiary hearing? _____ Yes X No. Did you appeal to the Nevada Supreme Court? _____ Yes X No. If no, explain why not: Because direct appeal was Still Pending.
If yes, did you raise this issue? _____ Yes _____ No. If no, explain why not: ________________________ _____________________________________________.
Second Post Conviction:
Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus? X Yes _____ No. If yes, explain why: Because the merits were not directly addressed in the first petition.
If yes, name of court: Clark County District Court date petition filed 3/2/09.
Did you receive an evidentiary hearing? _____ Yes X No. Did you appeal to the Nevada Supreme Court? X Yes _____ No. If no, explain why not: _________________________ _____________________________________________.
If yes, did you raise this issue? X Yes _____ No. If no, explain why not: the appeal was submitted without arguments.
Other Proceedings:
Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence overturned based on this issue (such as administrative remedies)? X Yes _____ No. If yes, explain: In a motion titled "motion to set a side jury verdict and/or grant a new trial." State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.
GROUND 2
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5th Amendment right to Be present at sentencing and due process of the law, based on these facts:My right to be present at sentencing and due process of the law was violated when the district judge v. Vega department 2, signed and filed a judgement of conviction that was different from the oral pronouncement of the Sentenceing judge Michael Douglass. And also when my "motion to correct Amended Judgement of Conviction," was denied. When the honorable Judge Michael L. Douglass Sentenced me on 3-19-04 in district court be said that, "the court will sentence you to 5-20 on count 1. Count 2, 5 to 20, that will be consecutive to count 1. And on count 3, 5 to 20 that will be concurrent with the other counts. Zero days credit." After a successful appeal of count 2 of the information, the Supreme court issued an order to the district court to amend the Judgement of conviction to have it say "Jury trial not a plea of guilty, dismiss count 2 and the sentence for that count, and to run the sentence for count 3 consecutive to count 1. With the order from the Supreme court, and the denial of my "motion to correct Amended Judgement of Conviction," there now exist a direct conflict between an unambiguous oral Pronouncement of sentence and the written Judgement of Conviction. (continued on page 5-A)
Exhaustion of state court remedies regarding Ground 2:
State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.
Direct Appeal:
GROUND 2 continued
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my _____________________________ Amendment right to _____________________________________________, based on these facts:The sentencing judge orally pronounced that count three (3) is to be concurrent with the other counts. Not with count one (1) only or count two(2) only, but " the other counts". Therefor, if either count one or count two was to be dissmissed, count three should still run concurrent with the count that still stands.
Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?
_____ Yes X No. If no, explain why not: It was beleived that the JOC was the Same as the oral pronouncement of sentence.
First Post Conviction:
Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus?
_____ Yes X No. If no, explain why not: It was beleived that the JOC was the Same as the oral pronuncement of Sentence.
If yes, name of court: ____________________________ date petition filed _____/_____/_____.
Did you receive an evidentiary hearing? _____ Yes ____ No. Did you appeal to the Nevada Supreme Court? _____ Yes _____ No. If no, explain why not: _________________________ _____________________________________________.
If yes, did you raise this issue? _____ Yes _____ No. If no, explain why not: ________________________ _____________________________________________.
Second Post Conviction:
Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus? _____ Yes _____ No. If yes, explain why: ___________________________________ _____________________________________________.
If yes, name of court: _________________________ date petition filed _____/_____/_____.
Did you receive an evidentiary hearing? _____ Yes _____ No. Did you appeal to the Nevada Supreme Court? _____ Yes _____ No. If no, explain why not: _________________________ _____________________________________________.
If yes, did you raise this issue? _____ Yes _____ No. If no, explain why not: ________________________ _____________________________________________.
Other Proceedings:
Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence overturned based on this issue (such as administrative remedies)? X Yes _____ No. If yes, explain: In a motion titled "motion to correct Amended Judgement of Conviction." And anappeal to the supreme court when the motion was denied.
State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.
GROUND 3
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5th Amendment right to not be placed in Double Jepardy, based on these facts:My conviction for count 3, possesstion of a credit card without the cardholders consent is unconstitutional because it was a lesser included offense of fraudulent use of a credit card. So when I was charged and convicted and sentensed it was a violation of the Double Jeopardy Clause of the constitution. When this issue was brought to the supreme court the state conceeded saying that, "possession of a credit card is a lesser included offense of fraudulent use of a credit card". The state said in its answering breif, "the defendant in this case could not fraudulenty use the credit card of another without possessing the credit card first." Accordingly, count 3, the conviction for possession of a credit card, is the lesser included of count 2, the conviction for fraudulent use of a credit card. Under Double Jepardy, the possession of a credit card, count 3, should have been dissmissed.
Exhaustion of state court remedies regarding Ground 3:
Direct Appeal:
Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court? X Yes _____ No. If no, explain why not: ___________________________________ _____________________________________________.
First Post Conviction:
Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus?
_____ Yes X No. If no, explain why not: Because It was told to me that this issue was moot.
If yes, name of court: _________________________ date petition filed _____/_____/_____.
Did you receive an evidentiary hearing? _____ Yes _____ No. Did you appeal to the Nevada Supreme Court? _____ Yes _____ No. If no, explain why not: _________________________ _____________________________________________.
If yes, did you raise this issue? _____ Yes _____ No. If no, explain why not: _________________________ _____________________________________________.
Second Post Conviction:
Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus?
_____ Yes _____ No. If yes, explain why: ___________________________________ _____________________________________________.
If yes, name of court: _________________________ date petition filed _____/_____/_____.
Did you receive an evidentiary hearing? _____ Yes _____ No. Did you appeal to the Nevada Supreme Court? _____ Yes _____ No. If no, explain why not: _________________________ _____________________________________________.
If yes, did you raise this issue? _____ Yes _____ No. If no, explain why not: _________________________ _____________________________________________.
Other Proceedings:
Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence overturned based on this issue (such as administrative remedies)? _____ Yes _____ No. If yes, explain: ___________________________________________________________ ________________________________________________________________.
WHEREFORE, petitioner prays that the court will grant him such relief to which he is entitled in this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a person in state custody. Atiba Moore 03-22-10
__________________________ (Name of person who wrote this (Signature of Plaintiff) complaint if not Plaintiff) (Date) ________________________________________ (Signature of attorney, if any) ________________________________________ ________________________________________ ________________________________________ (Attorney's address telephone number)DECLARATION UNDER PENALTY OF PERJURY
I understand that a false statement or answer to any question in this declaration will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See 28 U.S.C. § 1746 and 18 U.S.C. § 1621.Executed at Nevada Stat Prison on 03-22-10.
(Location) (Date)69116
____________________ (Signature) (Inmate prison number) Exhibit