Executes Man Who Killed 3 People
The New York Times
March 31, 1996
A man who killed
his former wife,
a bartender and
a cook in 1984
was executed by
today, a few
appeals of his
The man, Richard
Allen Moran, 42,
was sentenced to
Devere, 24, a
27, a cook, at
the Red Pearl
Saloon in Las
Vegas in August
1984 during what
he said was a
state of cocaine-induced
took a cash
register as he
Nine days after
the killings in
the bar, he
fatally shot his
tried to kill
himself. He got
a death sentence
for killing Ms.
Bill and Charles
were among nine
any more appeals
on Friday after
a Federal court
request for a
prisons, read a
by Mr. Moran. "I
chose my life
style of drugs
and alcohol, so
there is no one
to blame except
me," it said. "I'm
for what I've
Godinez v. Moran,
U.S. 389 (1993), was a landmark
decision in which the U.S. Supreme Court
ruled that if a defendant was competent
to stand trial, they were automatically
competent to plead guilty or waive the
right to legal counsel.
On August 2, 1984, Richard Allan Moran
entered the Red Pearl Saloon in Carson
City, Nevada and shot the bartender and
a customer before robbing the cash
register. Nine days later he shot his
ex-wife and then himself, and also
unsuccessfully tried to slit his wrists.
On August 13 Moran summoned the police
to his hospital bedside and confessed to
He was charged with three counts of
first-degree murder, but pleaded not
guilty. Two court-ordered psychiatrists
concluded that he was competent to stand
trial, although both noted he was
The prosecution sought the death
penalty. Two months after the
psychiatric evaluations, Moran stated to
the court that he wished to discharge
his attorneys and change his plea to
guilty. He also waived his right to
counsel. After his trial he was
sentenced to death. Moran then sought
state post conviction relief on the
grounds that he was mentally incompetent
to represent himself. The trial court
held an evidentiary hearing and then it
rejected his claim.
Moran's appeal to the Nevada State
Supreme Court was dismissed and a
Federal District Court denied his
petition for a writ of habeas corpus.
However, the Court of Appeals reversed
this decision, concluding that due
process required the trial court to hold
a hearing to "evaluate and determine"
Moran's competency before accepting his
decisions to waive counsel and plead
guilty. It also held that the trial
court erred by using the wrong legal
standard. It stated that competency to
waive constitutional rights requires a
higher level of mental functioning than
the level of mental functioning required
to stand trial. They reasoned that
competence to stand trial requires only
that the defendant have a rational and
factual understanding of the proceedings
and is capable of assisting his counsel,
while competence to waive counsel or
plead guilty requires that the defendant
has the capacity for reasoned choice
among those choices available.
Moran petitioned the Supreme Court on a
writ of certiorari.
In a split decision (7–2), the Court
found that competency to stand trial and
competency to plead guilty were
equivalent competencies. In other words,
if a person was found competent for one,
the person was automatically competent
for the second. Further, the court held
that a person who is competent to stand
trial is also competent to waive an
attorney and proceed pro se. The court
held that it was irrelevant if the
individual represented himself
As Justice Kennedy stated in his
concurring opinion: "At common law,
therefore, no attempt was made to apply
different competency standards to
different stages of criminal proceedings
or to the variety of decisions that a
defendant [509 U.S. 389, 407] must make
during the course of those proceedings."
Further, the Due Process Clause "does
not mandate different standards of
competency at various stages of or for
different decisions made during the
The court appears to be moving toward a
single standard of competency to be
applied throughout criminal proceedings.
The court finds nothing in case law to
the contrary. "[S]etting out varying
competency standards for each decision
and stage of a criminal proceeding would
disrupt the orderly course of trial and,
from the standpoint of all parties,
prove unworkable both at trial and on
As Justice Kennedy notes, this holding
in Godinez v. Moran may seem
harsh in equating all competencies as
essentially equal. However, there are
limitations noted in a careful reading
of the decision. One is that the Court
emphasized that competence to waive
legal counsel alone does not make a
waiver of counsel valid. The trial judge
must determine if the waiver is "voluntary"
Further, in a decision, McKaskle v.
Wiggins, the Court held that even if
the defendant successfully waives
counsel, the court can provide a "standby
counsel" if the pro se defendant has
actual control over the presentation of
the case to the jury, and the jury
retains the belief the defendant is in
charge of his own case.
Implications for evaluation
Following this decision, a forensic
clinican conducting a competency
evaluation for competency to stand trial,
should also include an evaluation of
competency to waive counsel.
E.K. McDANIEL, Warden, Respondent-Appellee.
Court of Appeals,
Submitted March 27, 1996.
Decided March 28, 1996.
the United States District Court for the District of
Nevada; Howard D. McKibben, District Judge,
FARRIS, PREGERSON and THOMPSON, Circuit Judges.
DAVID R. THOMPSON, Circuit
Richard Allan Moran has been
sentenced to death. The Nevada Supreme Court
dismissed, on state procedural grounds, his second
state petition for post-conviction relief. The
United States District Court for the District of
Nevada then denied Moran's second federal habeas
corpus petition and his application for a stay of
execution. The district court denied the habeas
petition on the grounds that federal review was
barred by the state court's dismissal of Moran's
federal constitutional claims on independent and
adequate state grounds, and because Moran's petition
was an abuse of the writ.
The district court issued a
certificate of probable cause to permit Moran to
appeal to this court. He has done so, and asks us to
stay his execution now scheduled for 12:01 a.m. on
March 30, 1996.
We have jurisdiction under 28
U.S.C. § 1291. We affirm the district court's denial
of Moran's habeas corpus petition and deny his
application for a stay of execution.
* PROCEDURAL BACKGROUND
On August 2, 1984, Moran
entered the Red Pearl Saloon and shot and killed the
bartender and a patron. Moran then stole the cash
register, the bartender's purse, and racks of money
that he had seen the bartender place under a
cupboard. He then set fire to the saloon in an
attempt to burn it down. Several days later, he shot
and killed his ex-wife. During this murder, Moran
unsuccessfully attempted suicide.
Moran confessed to the murders
while in the hospital, recovering from his suicide
attempt. He was charged with two counts of murder
with use of a deadly weapon for the saloon murders
and, in a separate case, with one count of murder
with use of a deadly weapon for the murder of his
ex-wife. He also was charged with two counts of
robbery with use of a deadly weapon and with first
degree arson. The two cases were consolidated for
all purposes before the state court.
After initially pleading not
guilty, Moran discharged his counsel and pleaded
guilty to all counts. A three-judge state court
panel sentenced Moran to death for each of the
murders. The Nevada Supreme Court affirmed the death
sentence for the saloon murders, but vacated the
death sentence for the murder of Moran's ex-wife,
and remanded with directions to impose a life
sentence without the possibility of parole. Moran v.
State, 103 Nev. 138, 734 P.2d 712 (1987).
After unsuccessfully seeking
post-conviction relief from the Nevada state courts,
Moran filed his first federal petition for habeas
corpus relief in the United States District Court
for the District of Nevada. The district court
denied Moran's petition.
Moran then filed an appeal to
this court. In his opening brief, Moran raised the
following arguments: (1) his plea and waiver of
counsel were not freely and voluntarily entered
because he was heavily medicated at the time of his
guilty plea, (2) he received ineffective assistance
of counsel because his counsel failed to investigate
or raise any defenses, (3) the evidence did not
support the aggravating circumstances found, (4) the
sentencing panel violated Moran's due process rights
by refusing to find his intoxicated state
constituted a mitigating circumstance, and (5) the
sentencing panel violated his due process rights by
consolidating the two actions at the penalty hearing.
We reversed the district
court's denial of Moran's petition for habeas
corpus. We concluded the state trial court deprived
Moran of his due process rights by failing to hold a
hearing to determine his competency to waive his
constitutional rights to counsel, to compulsory
process, to confront witnesses, to a public trial,
to a jury of his peers, and his privilege against
self-incrimination. Moran v. Godinez, 972 F.2d 263,
265 (9th Cir.1992).
We determined that this error
was not cured by a post-conviction hearing because
the state court applied the wrong standard to
evaluate Moran's competency. Id. at 265-66. We held:
"Competency to waive constitutional rights requires
a higher level of mental functioning than that
required to stand trial." Id. at 266. Because we
reversed the district court on this ground, we
decided we would not "reach the other issues raised
by Moran on appeal." Id. at 264 n. 2.
The Supreme Court granted
certiorari and reversed. Godinez v. Moran, 509 U.S.
389, 401-03, 113 S.Ct. 2680, 2688, 125 L.Ed.2d 321
(1993). The Supreme Court held that the standards
are the same to determine competency to stand trial
and competency to waive counsel and plead guilty. Id.
at 397-99, 113 S.Ct. at 2686. The Court also stated
a defendant must not only be competent to waive his
or her rights, but such waiver must be knowing and
voluntary. Id. at 399-401, 113 S.Ct. at 2687. The
Court remanded the case to us for further
The parties submitted further
briefing in light of the Supreme Court's remand. In
Moran's subsequent briefing, he asserted only two
arguments: (1) he was not mentally competent to
waive his rights and his waiver was not voluntary,
and (2) his trial counsel was ineffective by failing
to investigate and research all possible defenses.
After reexamining the issues in
light of the Supreme Court's decision, we concluded
that the post-conviction hearing addressing Moran's
competency had cured the due process violation and
that his waiver was knowing and voluntary. Moran v.
Godinez, 57 F.3d 690, 698-99 (9th Cir.1994). We also
addressed and rejected Moran's ineffective
assistance of counsel claim.
We concluded Moran's counsel
was not ineffective by failing "to investigate
whether he was competent to plead guilty, waive
counsel, and forego the presentation of mitigating
evidence" and by failing to investigate and research
all possible defenses. Id. at 699-700. Judge
Pregerson dissented and filed a dissenting opinion.
Neither in the majority opinion nor the dissent did
we address the other arguments that Moran had
presented in his initial brief to this court in his
appeal from the district court's denial of his first
On December 30, 1994, Moran
filed a petition for rehearing and a suggestion for
rehearing en banc. In this petition, he did not
allege that we had failed to resolve any claims
raised in his initial federal habeas corpus petition.
Moran's petition for rehearing was denied. A judge
of this court called for rehearing en banc, but that
call failed to receive a majority of the votes of
the active judges of the court. As a result, the
suggestion for rehearing en banc was rejected.
Moran then filed a petition for
certiorari with the Supreme Court. The Court denied
certiorari in November 1995. In December 1995, Moran
filed a second petition for post-conviction relief
in the Nevada state trial court. In February 1996,
the state trial court denied this petition. Moran's
request for reconsideration was also denied, and the
state trial court scheduled his execution for the
week of March 25, 1996. The warden of the
institution in which Moran is incarcerated set
Moran's execution for 12:01 a.m. on March 30, 1996.
On March 7, 1996, Moran
appealed the state trial court's denial of his
petition for post-conviction relief to the Nevada
Supreme Court. He then filed a second petition for
habeas corpus relief in the United States District
Court for the District of Nevada. The district court
continued the hearing on Moran's federal petition to
allow the Nevada Supreme Court an opportunity to
address Moran's arguments presented to that court.
While Moran's petitions were
pending before the Nevada Supreme Court and the
district court, Moran filed in this court a motion
to recall our mandate which issued following the
filing of our opinion on November 15, 1994, and
amended on June 2, 1995. Moran v. Godinez, 57 F.3d
690 (9th Cir.1994), cert. denied, --- U.S. ----, 116
S.Ct. 479, 133 L.Ed.2d 407 (1995). Moran also
requested a stay of execution. For the reasons set
forth below, we deny Moran's motion to recall the
mandate and his request for a stay of execution.
On March 21, 1996, the Nevada
Supreme Court affirmed the state trial court's
dismissal of Moran's second post-conviction petition.
The Nevada Supreme Court concluded that all of
Moran's claims were procedurally barred under state
law as untimely.
On March 22, 1996, the United
States District Court for the District of Nevada
heard oral argument on Moran's second federal habeas
petition and his request for a stay of execution. On
the same day, the district court determined that
federal review was precluded because the Nevada
Supreme Court's dismissal rested on adequate and
independent state procedural grounds and because
Moran's federal habeas petition was an abuse of the
writ. Moran then filed a notice of appeal to this
court and a motion for a stay of his execution. On
March 27, 1996 we heard oral argument on the motion
to recall the mandate and on the motion for a stay
A. Motion to
Recall the Mandate
Moran requests we recall our
mandate in Case No. 91-15609, Moran v. Godinez, 57
F.3d 690 (9th Cir.1994), cert. denied, --- U.S.
----, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
After the Supreme Court
remanded that case to this court, we issued our
opinion on November 15, 1994, and amended the
opinion on June 2, 1995, with Judge Pregerson
dissenting. Moran contends that in this opinion we
failed to address some of the claims he raised in
his original habeas appeal. Because Moran has failed
to demonstrate good cause for failing to raise, in
his previously filed petition for rehearing, the
contentions he now makes in his motion to recall the
mandate, we deny the motion.
Federal Rule of Appellate
Procedure 40(a) permits a party to file a petition
for rehearing within fourteen days after the entry
of judgment to bring to the court's attention any
point of law or fact the party contends the court
overlooked in deciding the case. Fed.R.App. 40(a).
Moran filed a petition for rehearing, together with
a suggestion for rehearing en banc, on December 30,
1995. His petition was timely filed but he did not
include in it the contentions he now makes in his
motion to recall the mandate. Now, when a further
petition for rehearing would be time-barred and his
execution has been scheduled, he asserts in his
motion to recall the mandate contentions that could
have and should have been made in a timely-filed
petition for rehearing, if the contentions had any
"[T]he recall power [to recall
the court's mandate] may not be used simply as a
device for granting late rehearing...." Johnson v.
Bechtel Assocs., 801 F.2d 412, 416 (D.C.Cir.1986).
Moran states only that his failure to raise this
issue earlier was an "oversight." This assertion is
not good cause to excuse his failure to include in
his earlier-filed petition for rehearing the
contentions he now makes in his motion to recall the
Moran's reliance on Patterson
v. Crabb, 904 F.2d 1179 (7th Cir.1990) is misplaced.
In Patterson, the Seventh Circuit dismissed the
appellant's appeal because the court erroneously
thought the district court had not entered a final
judgment. When the court discovered the district
court had entered a final judgment, the court
recalled its mandate to permit the appeal to be
heard. The court pointed out that the appellant
should have brought the error to the court's
attention by a timely-filed petition for rehearing,
but excused his failure to do so because at the time
the appellant should have filed a petition for
rehearing he was pursuing an administrative remedy.
Id. at 1180.
Because Moran has not
demonstrated good cause and has waited until this
late date to file his motion to recall the mandate,
he has waived review of these claims. Cf. Moreau v.
FERC, 982 F.2d 556, 563 (D.C.Cir.1993) (concluding
parties filing untimely petition for rehearing
waived claims by "sit[ting] on the sidelines to wait
and see what happens").
Even if we were to consider
what Moran alleges to be his unreviewed claims, we
would deny them. His unreviewed claims are clearly
His first "unreviewed" claim is
that there is no factual support for the two
aggravating factors found by the three-judge state
sentencing panel. This is incorrect. Moran's
confessions provide ample support for the finding
that the saloon murders were random and without an
apparent motive. Moran stated that he did not know
the bartender or the patron and that he did not know
why he killed them. The record also supports the
finding of the second aggravating factor, that the
murders created a great risk of death to more than
During the murders, Moran
placed his companion, Tammy Cortez, in danger.
Cortez accompanied Moran to the saloon and was
present when Moran shot the bartender and the patron
numerous times. Cortez was in close proximity to
Moran during the murders, and, at one point, Moran
had to reach around her in order to shoot the patron.
Cortez stated she was in fear for her life.
Moran's next "unreviewed" claim
is that the sentencing panel violated his
constitutional rights by failing to consider
mitigating evidence of his intoxicated state. Moran
misrepresents the record. The sentencing panel did
consider his evidence of intoxication. The
sentencing panel, however, did not find this
evidence to be a mitigating factor in this
The sentencing panel was not required to find all
evidence submitted by Moran to be mitigating factors
so long as the sentencing panel considered the
evidence. Cf. Jeffers v. Lewis, 38 F.3d 411, 418
(9th Cir.1994), cert. denied, --- U.S. ----, 115
S.Ct. 1709, 131 L.Ed.2d 570 (1995).
Moran's third "unreviewed"
claim is that the sentencing panel violated his
constitutional rights by conducting a "penalty
hearing on two offenses at different times and
places." Moran does not have a due process right to
separate hearings and Moran has not demonstrated
that the state court's consolidation of his
sentencing hearings otherwise violated his due
In sum, Moran's alleged
unreviewed claims are meritless.
B. Standard of Review--The
Present Habeas Petition
We review de novo the district
court's decision whether to grant or deny a petition
for habeas corpus. Calderon v. Prunty, 59 F.3d 1005,
1008 (9th Cir.1995). We review for clear error any
factual findings made by the district court relevant
to its determination. Bonin v. Calderon, 59 F.3d
815, 823 (9th Cir.1995) (Bonin II), cert. denied,
--- U.S. ----, 116 S.Ct. 718, 133 L.Ed.2d 671
(1996). Further, we accord a presumption of
correctness to factual findings made by the state
court. 28 U.S.C. § 2254(d); Melugin v. Hames, 38
F.3d 1478, 1482 (9th Cir.1994). We also "accept a
state court ruling on questions of state law." Id.
Finally, we "may affirm on any ground supported by
the record, even if it differs from the rationale of
the district court." Bonin II, 59 F.3d at 823.
C. The District Court's
Certificate of Probable Cause
Moran first argues we are
required to grant a stay of execution because the
district court issued a certificate of probable
cause. By issuing the certificate, Moran argues, the
district court implicitly determined that a stay was
justified. We disagree.
First of all, the district
court denied Moran's request for a stay of execution.
Moreover, "[a] stay of execution pending disposition
of a second or successive federal habeas petition
should be granted only when there are 'substantial
grounds upon which relief might be granted.' " Delo
v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881,
109 L.Ed.2d 325 (1990) (quoting Barefoot v. Estelle,
463 U.S. 880, 895, 103 S.Ct. 3383, 3395-96, 77 L.Ed.2d
1090 (1983)). Substantial grounds are not present if
the successive petition constitutes an abuse of the
writ. Delo, 495 U.S. at 321, 110 S.Ct. at 1881.
Moran's present petition, which is his second
federal petition for habeas corpus, is an abuse of
the writ. Moreover, the claims he asserts are barred
by the Nevada Supreme Court's dismissal of his
petition on adequate and independent state grounds.
As we explain below, Moran has not demonstrated
cause for waiting until now to raise the claims he
asserts in his abusive petition, and he has not
established by clear and convincing evidence that he
is actually innocent of the death penalty.
Accordingly, a stay of execution is not warranted.
D. Bars to
Review of the Merits
1. Procedural Bar
The Nevada Supreme Court
determined that Moran's second petition was untimely
under Nev.Rev.Stat. § 34.726. Under this section, a
petition is untimely if filed later than one year
after the entry of the judgment of conviction unless
good cause is shown. To demonstrate good cause,
Moran must show that the delay is not his fault.
Nev.Rev.Stat. § 34.726(1)(a).
The Nevada Supreme Court also
determined dismissal was appropriate under
Nev.Rev.Stat. § 34.800. Under this section,
dismissal is warranted if a delay in the filing of a
petition prejudices the State's ability to respond
to the petition, unless Moran "shows that the
petition is based upon grounds of which he could not
have had knowledge by the exercise of reasonable
diligence before the circumstances prejudicial to
the state occurred...." Nev.Rev.Stat. §
Dismissal also is warranted if
the delay prejudices the State's ability to retry
Moran, unless Moran "demonstrates that a fundamental
miscarriage of justice has occurred in the
proceedings resulting in the judgment of conviction
or sentence." Nev.Rev.Stat. § 34.800(1)(b). If the
petition is filed after five years from the
affirmance of the conviction and sentence, a
rebuttable presumption of prejudice to the State
arises. Nev.Rev.Stat. § 34.800(2).
The Nevada Supreme Court
determined that Moran's second petition was filed
more than seven years after the affirmance of his
conviction and that Moran had failed to demonstrate
the delay was not his fault or a lack of prejudice
to the State. Consequently, the Nevada Supreme Court
held Moran's "entire petition is properly
If Nevada's procedural bar of
Moran's federal constitutional claims is based upon
independent and adequate state grounds, we are
precluded from reviewing these claims unless Moran
can establish cause and prejudice for his default,
or a miscarriage of justice. Noltie v. Peterson, 9
F.3d 802, 804-05 (9th Cir.1993). "[T]he independent
state grounds doctrine bars the federal courts from
reconsidering the issue in the context of habeas
corpus review as long as the state court explicitly
invokes a state procedural bar rule as a separate
basis for its decision." McKenna v. McDaniel, 65
F.3d 1483, 1488 (9th Cir.1995).
To preclude federal review, the
state court must clearly state that its decision
rests on independent and adequate state grounds.
Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.
1175, 130 L.Ed.2d 1127 (1995).
In the present case, the Nevada
Supreme Court clearly stated that its dismissal of
Moran's appeal was based on procedural grounds.
Although the Nevada Supreme Court discussed the
merits of Moran's claims, the court clearly stated
that "any discussion of the merits of any of [Moran's]
claims in this case is strictly for the purpose of
demonstrating that [Moran] cannot overcome his
procedural defaults by a showing of cause and
prejudice." We conclude, therefore, that the Nevada
Supreme Court clearly rested its dismissal of
Moran's petition on independent state procedural
Moran argues, however, that the
Nevada Supreme Court's procedural bar rules are not
adequate because that court does not consistently
apply them. To be adequate, a state's procedural
rule must be consistently applied. Wells v. Maass,
28 F.3d 1005, 1010 (9th Cir.1994).
We reject Moran's argument. The
Nevada Supreme Court has consistently applied the
state rule which prohibits review of the merits of
an untimely claim unless the petitioner demonstrates
cause. See, e.g., Birges v. State, 107 Nev. 809, 820
P.2d 764, 765-66 (1991); Glauner v. State, 107 Nev.
482, 813 P.2d 1001, 1003 (1991); Colley v. State,
105 Nev. 235, 773 P.2d 1229, 1230 (1989). Even
before the Nevada State Legislature adopted the
procedural rules which bar Moran's claims in state
court, the Nevada Supreme Court dismissed petitions
without reviewing the merits if the delay was
unreasonable and prejudicial. Groesbeck v. State,
100 Nev. 259, 679 P.2d 1268, 1269 (1984).
In one case, the Nevada Supreme
Court found the untimely filing of the petition to
be a bar to review of the merits, but briefly noted
the record did not support the petitioner's claim of
ineffective assistance of counsel. Hood v. State,
111 Nev. 335, 890 P.2d 797, 798 (1995). This brief
reference to the record does not establish that the
Nevada Supreme Court inconsistently applies that
state's procedural bar rule.
In only one other case did the
Nevada Supreme Court address the merits of a
defaulted claim. Bennett v. State, 111 Nev. 1099,
901 P.2d 676, 679 (1995). There, however, the merits
were "intricately related" to the claim of prejudice.
Moreover, the consistent application rule requires
application of the procedural rule only in the vast
majority of cases. Dugger v. Adams, 489 U.S. 401,
411 n. 6, 109 S.Ct. 1211, 1218 n. 6, 103 L.Ed.2d 435
Other cases cited by Moran in
an attempt to show the Nevada Supreme Court does not
consistently apply the state's procedural bar rules
are not relevant. These cases do not discuss the
procedural rule which bars review of the merits of
claims raised in an untimely petition. Ford v.
Warden, 111 Nev. 872, 901 P.2d 123 (1995), cert.
denied, --- U.S. ----, 116 S.Ct. 950, 133 L.Ed.2d
874 (1996); Paine v. State, 110 Nev. 609, 877 P.2d
1025 (1994), cert. denied, --- U.S. ----, 115 S.Ct.
1405, 131 L.Ed.2d 291 (1995); Bejarano v. State, 106
Nev. 840, 801 P.2d 1388 (1990); Krewson v. Warden,
96 Nev. 886, 620 P.2d 859 (1980); Gunter v. State,
95 Nev. 319, 594 P.2d 708 (1979); Warden v. Lischko,
90 Nev. 221, 523 P.2d 6 (1974).
Finally, our decision in
McKenna v. McDaniel, 65 F.3d 1483 (9th Cir.1995), is
distinguishable from the present appeal. McKenna
involved defense counsel's failure to object to a
constitutionally vague jury instruction on depravity
as an aggravating circumstance. We held the Nevada
courts had not consistently treated the failure to
object to constitutional error in an instruction as
a procedural bar to review of a constitutional claim
in a death penalty case. Id. at 1488-89. We
concluded the state court's dismissal of the
petition was not based on an adequate state
procedural rule. Id. at 1489.
We conclude that the Nevada
Supreme Court consistently applies its procedural
rules to bar review of the merits of an untimely
claim in the absence of a showing of cause and lack
of prejudice to the State. Our review of the merits
of Moran's claims, therefore, is precluded unless
Moran can establish cause and prejudice or that a
miscarriage of justice would result in the absence
of our review. Sawyer v. Whitley, 505 U.S. 333,
338-39, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269
(1992); Jeffers v. Lewis, 68 F.3d 299, 300 (9th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 36,
132 L.Ed.2d 917 (1995).
2. Abuse of the Writ
Before analyzing whether Moran
can demonstrate cause or a miscarriage of justice to
avoid Nevada's procedural bar, we address whether
Moran's second petition is an abuse of the writ. We
do this because, if the petition is an abuse of the
writ, Moran may obtain federal review of the merits
of his claims only if he can demonstrate cause and
prejudice or a miscarriage of justice. The analysis
of cause and prejudice, and the analysis of a
miscarriage of justice, is the same whether the
proposed bar to review is procedural or an abuse of
the writ. Bonin v. Calderon, 77 F.3d 1155, 1159 (9th
Cir.1996) (Bonin III), cert. denied, --- U.S. ----,
116 S.Ct. 980, 133 L.Ed.2d 899 (Feb. 23, 1996).
Moran has abused the writ if he
raises any new claims in his subsequent petition
that could have been raised in his first petition.
McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct.
1454, 1467, 113 L.Ed.2d 517 (1991). Under McCleskey,
the State must specify the claim that appears for
the first time in a subsequent petition. Id. at 494,
111 S.Ct. at 1470. If the State satisfies this
burden, Moran must demonstrate "cause" and "prejudice"
for failing to raise the new claim in his first
We conclude the claims raised
in Moran's present, second petition constitute an
abuse of the writ. The State has sufficiently
identified the claims raised for the first time in
this second petition. Moran could have brought all
the claims he now raises either during direct appeal
or in his first habeas corpus petition. Therefore,
federal review of the merits of Moran's claims is
barred by the abuse of the writ doctrine, unless
Moran can demonstrate cause for failing to assert
the claims in his first petition, or can establish a
miscarriage of justice.
To demonstrate cause, Moran
must show "some objective factor external to the
defense impeded counsel's efforts to raise the claim
in the state court." McCleskey, 499 U.S. at 493, 111
S.Ct. at 1470. Ineffective assistance of counsel may
constitute cause, if the representation amounts to
an independent Sixth Amendment violation. Bonin v.
Vasquez, 999 F.2d 425, 428 (9th Cir.1993) (Bonin I).
Moran argues he has
demonstrated cause because he has received
ineffective assistance of appellate counsel. In our
previous opinion, we rejected Moran's claim that his
trial counsel provided ineffective assistance.
Moran, 57 F.3d at 699-700. In this second petition,
Moran asserts he had the same counsel for his direct
and initial state and federal post-conviction
petitions. Therefore, he argues, a conflict of
interest existed which precluded his counsel from
asserting his own ineffectiveness on direct appeal
in his first post-conviction petition.
We have previously considered
and rejected this argument. Bonin III, 77 F.3d at
1159. We have concluded there is no Sixth Amendment
right to effective assistance of counsel during
state or federal habeas corpus proceedings. Bonin I,
999 F.2d at 428. Moran may not avoid this rule by
asserting this habeas proceeding was the first
proceeding in which he could have raised his claim
of ineffective assistance of appellate counsel.
Bonin III, 77 F.3d at 1159.
Moran also argues that cause
exists because his counsel's alleged conflict of
interest violated his due process rights. He
contends he was deprived of notice of his counsel's
conflict of interest.
In essence, Moran is arguing
that he was deprived of effective assistance of
counsel during his habeas proceedings because his
counsel was not able to litigate his own alleged
ineffectiveness. A petitioner is entitled to due
process during the habeas proceedings. Bonin I, 999
F.2d at 428-29. However, "the absence or
ineffectiveness of counsel does not in and of itself
constitute a due process violation." Id. at 429.
Moran may not avoid our holding that a petitioner is
not entitled to effective assistance of counsel
during habeas proceedings by alleging a due process,
rather than a Sixth Amendment, violation. Id.
Accordingly, we reject this argument.
4. Miscarriage of Justice
Moran may escape the bar to
federal review by demonstrating the preclusion of
federal review would result in a miscarriage of
justice. To satisfy this standard, Moran must
demonstrate he is "actually innocent" of the death
penalty. Sawyer, 505 U.S. at 339-40, 112 S.Ct. at
2519. This requires Moran to "show by clear and
convincing evidence that, but for a constitutional
error, no reasonable juror would have found [him]
eligible for the death penalty under the applicable
Id. at 336, 112 S.Ct. at 2517. This exception is
narrow and is reserved for the extraordinary case.
Id. at 340, 112 S.Ct. at 2519; Dugger, 489 U.S. at
412 n. 6, 109 S.Ct. at 1218 n. 6.
Moran argues he is actually
innocent of first degree felony murder because the
aggravating factors found by the sentencing panel
indicate he is guilty only of second degree murder
and, thus, ineligible for the death penalty.
Specifically, the sentencing panel found Moran had
randomly and without apparent motive killed the two
people in the saloon. The sentencing panel did not
find, as an aggravating factor, that Moran had
committed the murders during the perpetration of a
robbery. Consequently, Moran argues he is not
eligible for the death penalty under a theory of
In its decision dismissing
Moran's second habeas petition, from which this
appeal is taken, the district court rejected this
argument because it determined Moran had pleaded
guilty to premeditated first degree murder for the
saloon murders. This was incorrect. While the
factual basis for Moran's guilty plea for the murder
of his ex-wife was on the basis of premeditation,
Moran did not receive a death sentence for that
murder. The factual basis for the guilty pleas to
the saloon murders, for which Moran received his
death sentence, was limited to his plea to first
degree felony murder.
Nevertheless, we conclude that
Moran has not demonstrated by clear and convincing
evidence that he is not eligible for the death
penalty. Simply because the sentencing panel did not
find, as an aggravating factor, that the murders
were committed during the perpetration of a robbery,
does not mean that the sentencing panel found Moran
did not commit the murders during the perpetration
of the robbery or that Moran was not otherwise
guilty of first degree felony murder. As correctly
noted by the Nevada Supreme Court, the issue of
guilt was not before the sentencing panel and the
sentencing panel was not obliged to find the
existence of all conceivable aggravating factors.
Further, Moran pled guilty to two counts of robbery
and has not challenged the plea.
Also, a finding that the
killings were random and without apparent motive is
not inconsistent with a finding that the murders
were committed during perpetration of the robbery.
Moran's motive in killing the bartender and patron
did not need to be to facilitate the robbery. The
key analysis is whether the murders occurred during
the perpetration of the robbery.
The record supports a finding
that the murders were committed during the
perpetration of the robbery. The information charged
Moran with murder, but did not specify whether the
murder was first or second degree. During the change-of-plea
hearing, the state trial court explained to Moran
the elements and definition of murder. The state
trial court also explained under what circumstances
Moran would be guilty of first degree murder. The
state trial court specifically explained that first
degree murder includes killings which are "committed
in the perpetration or attempted perpetration of a
The state trial court also asked Moran whether "with
malice aforethought willfully and feloniously [he]
kill[ed]" the patron, and Moran stated, "Yes." Moran
then answered the court's question:
Q: And did you do that at the
time of the perpetration of a robbery?
trial court then asked Moran whether he had "with
malice aforethought willfully and feloniously
kill[ed]" the bartender, and Moran answered, "Yes."
Moran answered the next question:
Q: And did you do that during
the perpetration of that robbery?
By Moran's own admissions
during his change of plea hearing, he admitted to
committing the murders during the perpetration of
the robbery, and he admitted this after the court
had explained to him this would make the murders
first degree murder.
That Moran formed the intent to
rob before committing the murders is also supported
by the record. During his confession in the
hospital, he said he had been in the saloon about an
hour and a half. He said the patron he eventually
shot was talking to a "fat girl" in the saloon. At
some point, the "fat girl" left the saloon with the
patron, and the patron returned alone about five
minutes later. When Moran was asked when he "develop[ed]
the intention of robbing the place," he answered, "Well,
it was after that fat girl left."
Further, the record indicates
Moran had a severe drug addiction and was unemployed
at the time of the robbery. Moran also stated in his
confession that he paid attention to where the
bartender was placing racks of money and, after the
killings, he took this money. Finally, in response
to the question, "Once you shot the bartender and
the guy, then what did you do," Moran answered, "Then
I started robbing everything I could rob." All this
evidence supports a finding that Moran formed the
intent to rob prior to committing the murders.
In addition to arguing that he
is not eligible for the death penalty because he was
not properly convicted on his guilty plea to first
degree felony murder, Moran challenges the two
aggravating factors found by the three-judge state
sentencing panel. Because Nevada is a "weighing"
state, in considering these challenges, we must
determine whether Moran has shown by clear and
convincing evidence that no reasonable sentencer
would have found him eligible for the death sentence.
Deutscher v. Whitley, 991 F.2d 605, 608 (9th
Cir.1993). This is a "sharply limit[ed] inquiry." Id.
Moran argues he is ineligible
for the death sentence because the random and
apparently motiveless killing aggravating factor is
unconstitutionally vague, shifts the burden of proof
to him, provides no rational basis for imposing the
death penalty, and violates his right against self-incrimination.
Even assuming this aggravating factor is
unconstitutional, a question we do not decide, Moran
has not satisfied the stringent clear and convincing
The sentencing panel found the
existence of two aggravating factors: (1) the
murders were at random and without apparent motive,
and (2) Moran placed another person in danger of
death during the murders. The sentencing panel found
the following mitigating factors: (1) Moran had no
significant criminal history, and (2) Moran
exhibited remorse for the saloon murders.
Our review is not whether, in
balancing these factors, we would find a death
sentence to be warranted. Instead, we must determine
in this second habeas petition whether Moran has
demonstrated, by clear and convincing evidence, that
no reasonable sentencer would impose the death
sentence. This we cannot do. One aggravating factor
is still valid and the balance does not tip so
sharply in favor of mitigation that we clearly could
hold that a reasonable sentencer would not impose
the death sentence. Were this Moran's first petition,
this stringent standard would not apply. Id. at 608.
Here it does. Id.
We reject Moran's argument that
he is actually innocent of the death penalty.
Moran's motion to recall the
mandate and to stay his execution, which motion was
filed in Case No. 91-15609, and his motion to stay
his execution in connection with this present
appeal, Case No. 96-99007, are DENIED.
PREGERSON, Circuit Judge,
Given the present state of the
case law and the procedural posture of this case, it
appears that there is an absence of any legally
viable ground on which to base a stay.