United States District Court, S.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Thomas J. Whelan United States District Judge.
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
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].
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.
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
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800 (9th Cir. Feb. 12, 2010) (unpublished).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.
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.)
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. (Reply [Doc.
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.)
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
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 ...