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Moore v. United States

United States District Court, S.D. California

October 18, 2019



          Hon. Thomas J. Whelan United States District Judge.

         Pending before the Court is Kenneth Wayne Moore's Petition for Writ of Habeas Corpus Pursuant to Title 28 U.S.C. § 2255 (the “Petition”). Respondent United States of America opposes.

         The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1. For the reasons stated below, the Court DENIES the Petition [Doc. 1021].

         I. Factual Background

         On February 12, 2008, a federal Grand Jury returned a Fifth Superseding Indictment charging Petitioner Kenneth Wayne Moore with Conspiracy to Commit Wire Fraud, Wire Fraud, Conspiracy to Launder Money, Money Laundering, Income Tax Evasion, and False Return. (See Indictment [Doc. 812].) Trial began on April 4, 2008.

         At trial, the United States presented evidence demonstrating that Petitioner joined a conspiracy to solicit individuals to invest in a fraudulent insurance company, the Good Samaritan Insurance Company (“Good Samaritan”), by making significant misrepresentations. (Opp'n [Doc. 1025] Ex. A at 69.) For example, the evidence showed Petitioner failed to disclose to new investors that he previously invested hundreds of thousands of dollars in the company, which resulted in Petitioner having to declare bankruptcy. (Opp'n Ex. A at 69.) Petitioner also failed to disclose that all promises made to him while he was an investor were broken. (Id. at 69-70.) Evidence also revealed that after joining the conspiracy, Petitioner received into his personal account daily payments over a two-year period totaling $330, 000 in 2002 and $279, 500 in a short period in 2003. (Opp'n Ex. C at 44-45.) These payments represented new investor money resulting from his solicitation. (Id.)

         On May 14, 2008, the jury returned a guilty verdict on counts 1 through 36. (May 14, 2008 Min. Entry: Jury Trial [Doc. 849].) Petitioner was subsequently sentenced to 60 months on counts 1 through 10, 150 months on counts 11 through 35, and 60 months on count 36, to be served concurrently. (September 15, 2008 Min. Entry: PO Report [Doc. 886].) Petitioner then appealed and on March 8, 2018, the Ninth Circuit affirmed his conviction and sentence. See United States v. Moore, 365 Fed.Appx. 800 (9th Cir. Feb. 12, 2010) (unpublished). On October 4, 2010, the Supreme Court denied Petitioner's petition for writ certiorari. Moore v. United States, 562 U.S. 908 (2010).

         On December 20, 2018, Petitioner filed the Petition under 28 U.S.C. § 2255. (Pet. [Doc. 1021].) The Petition raises the following six grounds for relief: (1) discovery of “new evidence” in July 2018; (2) violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) prosecutorial misconduct related to a plea agreement of William Leavitt; (4) prosecutorial misconduct related to two witnesses; (5) a motion to allow intervenors; and (5) judicial misconduct. (Pet.)

         On February 15, 2019, Respondent filed an opposition asserting that ground one is not a cognizable claim on habeas and that grounds two through six are time barred and procedurally defaulted. (Opp'n [Doc. 1025] 1-2.) Petitioner filed his reply on July 17, 2019.[1] (Reply [Doc. 1045].)

         II. Discussion

         A. Ground One

         Petitioner claims that in July 2018 he discovered a habeas petition filed by his co-conspirator Ken Kempton. (Pet. at 35.) Petitioner claims Kempton's petition is new evidence that has some bearing on his innocence and that “[n]ot having this evidence at . . . trial prejudiced [Petitioner] because what [he] did was legal and . . .[he] was not aware of any of the above-mentioned information, nor was [he] aware that [he] was being set up.” (Id.)

         Newly discovered evidence, “short of proof of actual innocence, ” is not a cognizable claim on habeas petition. United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). “[A] motion under section 2255 must be based upon an independent constitutional violation.” Id. (citing Herrera v. Collins, 506 U.S. 390, 400 (1993)). Even new evidence that “casts grave doubt” on the correctness of a conviction is not a ground for relief on collateral attack. See Conley v. United States, 323 F.3d 7, 14 (1st Cir. 2003). Rather, Federal Rule of Criminal Procedure 33 is the proper vehicle for a new trial based on newly discovered evidence.

         Here, the information in Kempton's petition does not establish Petitioner's innocence for at least two reasons. First, Kempton's petition does not mention Petitioner, at all. (See Kempton Petition [Doc. 1015].) Second, Kempton's petition does not negate the substantial amount of evidence presented at trial showing Petitioner's involvement in the conspiracy. (See id.) As such, the Court finds ...

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