U.S. Court of Appeals for the Ninth Circuit, 1998

David Moss v. William Duncan, Warden

U.S. Court of Appeals for the Ninth Circuit · Decided January 15, 1998

134 F.3d 378; 1998 U.S. App. LEXIS 4283; 1998 WL 22062 (Federal Reporter, Third Series)

Opinion

134 F.3d 378

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
David MOSS, Petitioner-Appellant,
v.
William DUNCAN, Warden, Respondent-Appellee.

No. 97-15775.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 12, 1998.**
Decided Jan. 15, 1998.

Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.

MEMORANDUM*

Non-capital state petitioner Moss mounts a post-AEDPA collateral attack on his sentence and his attorney's performance, alleging that a constitutionally deficient prior conviction was used to enhance the sentence. With an exception not relevant here, the Supreme Court has explicitly declined to pass on whether prior convictions may be challenged in a habeas attack on the sentence they are used to enhance, leaving no clearly established high court precedent to apply in this case. See Custis v. United States, 114 S.Ct. 1732, 1739 (1994); Brock v. Weston, 31 F.3d 887, 890-91 (9th Cir. 1994). This is fatal. 28 U.S.C. § 2254(d). And since Moss does not challenge his other prior felony, which alone would allow the enhancement, neither his attorney's performance nor his sentence are infirm.

AFFIRMED.

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

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