Moore v. State
Moore v. State
Opinion of the Court
The district court denied appellant Randolph Moore's postconviction petition for a writ of habeas corpus as procedurally barred without conducting an evidentiary hearing. We affirm.
*359Moore was convicted of first-degree murder and sentenced to death for his involvement in killing his friend Dale Flanagan's grandparents. See Flanagan v. State,
To overcome the procedural bars, Moore argues that: (1) the State's withholding of impeachment evidence violated Brady v. Maryland,
Brady v. Maryland
Moore claims that the State violated Brady by failing to disclose evidence that would have impeached a witness who testified at his trial, Angela Saldana.
Before discussing this claim in more detail, we note that it is inadequately pleaded. Before trial, the parties knew that Saldana had been working with law enforcement and her uncle, Robert Peoples, in order to obtain information about the murders. Since then, Moore has consistently challenged Saldana's role in the case. Although he alleges in his opening brief that he has recently discovered new facts putting the claim in a different light, he fails to identify with specificity which facts this court previously considered and which facts are new. Moore actually asserts that he is under no obligation to "distinguish between 'new' facts and facts which were known and previously presented." He is mistaken, as he bears the burden of demonstrating that relief is warranted, which means he must explain why he is raising this claim again, or if it is new, why he did not raise it sooner. See NRS 34.810 ; NRS 34.810(1)(b). He also bears the burden of demonstrating that the district court erred, which means he must demonstrate that the State withheld material evidence and that he raised the claim within a reasonable time. State v. Huebler,
Moore provided some clarity at oral argument in this court. Considering those assertions *360along with those raised in his opening brief, what forms the basis of his Brady claim is apparently the notion that rather than being a willing participant in the investigation into Moore's codefendant as previously believed, Saldana was forced to participate against her will and was fed information by Peoples, who had access to police reports. Assuming, without deciding, that Moore raised this claim within a reasonable time, we nevertheless conclude that he fails to demonstrate that relief is warranted.
Accepting Moore's assertions as true, evidence that Peoples coached and coerced Saldana's testimony constitutes favorable evidence, see United States v. Scheer,
Regardless, materiality for the purposes of Brady focuses on whether the withheld evidence might create a reasonable doubt in the mind of the jury, Wearry v. Cain, --- U.S. ----,
For all of these reasons, we conclude that the district court did not err by denying this claim without conducting an evidentiary hearing.
*361Ineffective assistance of postconviction counsel
Moore contends that he demonstrated good cause and prejudice to excuse the procedural bars because postconviction counsel was ineffective. Because a petitioner sentenced to death is entitled to the appointment of counsel for his first postconviction proceeding, see NRS 34.820(1), he is entitled to the effective assistance of that counsel, and a meritorious claim that postconviction counsel was ineffective can provide cause to excuse the procedural bars, Crump v. Warden,
Mitigating evidence regarding Moore's upbringing
Moore argues that postconviction counsel should have found evidence to support the claim that trial counsel was ineffective for failing to present mitigating evidence regarding Moore's background. Moore fails to demonstrate deficient performance. See Crump ,
Moore also fails to demonstrate prejudice. Trial counsel presented similar evidence about the same mitigating themes. Although no one testified about Moore's mother's contribution to his problematic childhood, and his drug use was only casually referenced, the jury heard about his difficult upbringing, the lack of a father figure, the traumatic deaths of his loved ones, and his compromised thinking around the time of the murders. Additional evidence might have provided more details about Moore's life, but it would not have altered the picture of Moore that trial counsel presented in any meaningful way. See Wong v. Belmontes ,
Mitigating evidence in the form of expert testimony
Moore argues that postconviction counsel should have presented mitigating testimony from experts. Moore fails to demonstrate deficient performance and prejudice. Although he correctly points out that postconviction counsel faulted trial counsel for not presenting such testimony, Moore fails to demonstrate that the challenge to trial counsel's performance would have succeeded as he points to nothing in the record which establishes that trial counsel should have suspected that his mental health was at issue at the time. See generally Riley v. State,
*362(explaining that trial counsel was not ineffective for failing to have the defendant psychologically evaluated despite indications that the defendant had previously been hospitalized and had abused drugs); see also Davis v . Singletary,
Additional expert testimony
Moore argues that postconviction counsel should have argued that trial counsel was ineffective for failing to hire a criminalist, whose testimony would have cast doubt upon "the authenticity of the testimony regarding the guns, and whether the guns could be connected to the bullets or casings found[ ] at the crime scene." Moore also argues that postconviction counsel should have argued that trial counsel was ineffective for failing to hire an expert in substance abuse, whose testimony would have undermined "the mens rea requirement for first-degree murder." Moore fails to demonstrate deficient performance or prejudice; he does not, for example, explain how testimony regarding guns and ammunition was used at trial, what conclusions an expert could have provided that would have changed the result, nor how expert testimony would have shown he did not meet the mens rea requirement for murder. These bare assertions are insufficient to warrant relief and therefore Moore fails to demonstrate that the district court erred by denying this claim without an evidentiary hearing.
Other ineffective-assistance claims
Moore also argues that postconviction counsel should have argued that: (1) the prosecutors engaged in repeated misconduct, (2) a penalty-phase juror was not proficient in English, and (3) the trial court failed to change venue. These claims were waived by the time of the first postconviction proceeding because they could have been raised on direct appeal and Moore failed to demonstrate good cause and prejudice for the failure to do so. See NRS 34.810(1)(b).
Actual innocence
Moore contends that the district court erred by denying his petition because he is actually innocent of the death penalty, which may excuse the failure to show good cause. See Pellegrini v. State ,
Moore first asserts that he is actually innocent because the aggravating circumstance that the murder was committed by a person who knowingly created a great risk of death to more than one person is invalid on its face and unconstitutional as applied to him. This court has rejected these arguments, see Flanagan v. State ,
Moore also contends that he is actually innocent because this court did not appropriately conduct a reweighing analysis when resolving a prior appeal. This argument constitutes legal innocence rather than factual innocence and does not relate to death eligibility. See Mitchell v. State,
Procedurally-barred claims
Moore argues that, under a cumulative-error theory, this court must consider other claims which were previously raised and rejected by this court. We disagree. Many of the claims are bereft of legal analysis or citations to controlling authority. See Maresca v. State,
As Moore fails to demonstrate that the district court erred, we affirm the district court's judgment.
We previously issued our decision in this matter in an unpublished order. Cause appearing, we grant the State's motion to reissue the order as an opinion, see NRAP 36(f), and issue this opinion in place of our prior order.
We reject Moore's request to remand this matter for the district court to make better findings regarding the procedural bars.
Moore also argues that first postconviction counsel was ineffective for failing to uncover the evidence supporting his Brady claim. However, he provides no explanation as to how a reasonable postconviction attorney would have uncovered the evidence, and for the reasons explained below, the Brady claim fails.
We note that Moore summarily concludes that the State possessed this evidence because "an investigator with the Clark County District Attorney's office was very involved with Mr. Peoples in coercing Ms. Saldana," but he admits that the investigator was not involved at all stages of the alleged coercion campaign and that the investigator and the other actors involved were acting outside of their official capacities. Nevertheless, because the district court did not hold an evidentiary hearing on this claim, we will assume that the evidence was in the State's possession.
We note that the district court incorrectly concluded that some of Moore's ineffective-assistance-of-postconviction-counsel claims were not raised within a reasonable time, as these claims were not available until the first postconviction proceedings concluded.
Moore asserts that the district court's failure to appoint an investigator and conduct an evidentiary hearing during the first postconviction proceeding constitutes good cause and prejudice. Any failure on the part of the district court should have been raised on the appeal from the denial of that petition.
Moore's claim that lethal injection violates the Eighth Amendment is premature. See McConnell v. State ,
Reference
- Full Case Name
- Randolph MOORE v. The STATE of Nevada
- Cited By
- 6 cases
- Status
- Published