State v. Moore

Page 537

718 N.W.2d 537

272 Neb. 71

STATE of Nebraska, appellee and cross-appellant v. Carey Dean MOORE, appellant and cross-appellee.

No. S-04-1081.

Supreme Court of Nebraska.

July 28, 2006.

Alan E. Peterson, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellant.

Jon Bruning, Attorney General, J. Kirk Brown for appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, MILLER-LERMAN, JJ., and CASSEL, Judge.

PER CURIAM.

NATURE OF CASE

Appellant, Carey Dean Moore, was convicted of two counts of first degree murder and sentenced to death in 1980. Since his original convictions and sentences, the state and federal courts have considered numerous cases brought by Moore, including direct appeals and collateral proceedings, one of which resulted in a remand for resentencing where Moore was again sentenced to death. On August 31, 2004, the district court for Douglas County denied Moore's second petition for postconviction relief since his resentencing, and thereafter, Moore filed this appeal.

Moore's petition for postconviction relief relies on the 8th and 14th Amendments to the U.S. Constitution and art. I, §§ 3, 9, and 15, of the Nebraska Constitution. Moore makes two challenges relative to the use of electrocution to enforce a sentence of death. First, Moore claims that "under any protocol, the use of electrocution [as the statutorily mandated method of execution] violates" his rights. Second, Moore claims that the electrocution procedure to be used pursuant to a new protocol which "provides for an uninterrupted application of 2,450 volts of electricity for 15 seconds" violates his rights. The district court denied an evidentiary hearing and postconviction relief on the basis that this court had recently rejected Eighth Amendment challenges to the use of the electric chair.

Moore appeals the denial of postconviction relief. The State cross-appeals and asserts that the district court reached the right result for the wrong reason. We agree with the State's analysis that Moore's claims are either procedurally barred or not authorized in a postconviction action. Therefore, albeit for reasons different than those stated by the district court, we affirm the district court's denial of postconviction relief.

STATEMENT OF FACTS

In our opinion in the appeal of Moore's previous state postconviction action after resentencing and prior to the present case, the procedural background of this case was set forth as follows:

In a 4-day span during August 1979, Moore robbed and murdered two Omaha taxi drivers. Moore was convicted of two counts of first degree murder, based on a felony murder theory, and was sentenced to death by a three-judge panel in 1980. We affirmed the convictions and sentence in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), cert. denied 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (Moore I). The facts of the underlying crimes are more fully set out in that opinion.

Moore filed his first state postconviction action in 1982, alleging, inter alia, that his trial counsel was ineffective and that Nebraska's death penalty procedures were unconstitutional. On appeal, we rejected these arguments. State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984) (Moore II).

Moore then filed a federal habeas corpus action and was granted a writ of habeas corpus based upon his constitutional challenge to Nebraska's death penalty procedures. The U.S. Court of Appeals for the Eighth Circuit affirmed the order of resentencing, and this order was reaffirmed by the Eighth Circuit on denial of rehearing. Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990), rehearing denied 951 F.2d 895 (8th Cir.1991), cert. denied 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992).

On remand, this court determined that it would decline to itself resentence Moore, but would instead remand the cause to the state district court for resentencing. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993) (Moore III). Moore was again sentenced to death, and on direct appeal from his resentencing, he again alleged, inter alia, that [some aspects of] Nebraska's death penalty statutes and procedures were unconstitutional. We rejected those arguments. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996), cert. denied 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997) (Moore IV).

On March 3, 1997, this court set an execution date of May 9 for Moore. Moore filed the [first] state action for postconviction relief [after resentencing] on April 30. On May 5, this court stayed Moore's execution in light of Reeves v. Hopkins, 102 F.3d 977 (8th Cir.1996), rev'd 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998). On the same date, the district court denied Moore's motion for postconviction relief, without an evidentiary hearing. This appeal followed, and because this is a capital case, the appeal was placed on our docket. See Neb.Rev.Stat. § 24-1106 (Reissue 1995).

State v. Moore, 256 Neb. 553, 554-55, 591 N.W.2d 86, 88-89 (1999) (Moore V).

As will be discussed below, we note that although Moore had unsuccessfully challenged the "use of an `electric chair'" as the statutory method of execution in a motion filed in district court on April 8, 1994, in connection with his resentencing, he did not raise the denial of his challenge to the use of the electric chair in the appeal thereof, which appeal resulted in our opinion State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996) (Moore IV). In Moore V, Moore's first postconviction case following resentencing, we concluded that all of Moore's claims for postconviction relief were either procedurally barred or without merit, and we affirmed the district court's denial of that petition for postconviction relief.

On October 5, 1999, Moore filed a petition for writ of habeas corpus in the federal district court for the district of Nebraska. See Moore v. Kinney, 119 F.Supp.2d 1022 (D.Neb.2000). The federal district court denied Moore's petition in its entirety and dismissed the petition with prejudice. Id. Among the claims Moore made in the petition for writ of habeas corpus was a claim that "`Nebraska's death penalty by electrocution violates the Eighth and Fourteenth Amendments.'" 119 F.Supp.2d at 1038. The district court rejected the claim based on the U.S. magistrate judge's recommendation that the claim was barred because the claim was "available to [Moore] and could have been raised during either the state direct appeal or postconviction proceedings" and the claim was therefore "subject to procedural default." Id. at 1039-40. The magistrate noted that Moore did "not even attempt to demonstrate either cause or prejudice sufficient to excuse this default." Id. at 1040. The denial of Moore's petition for writ of habeas corpus was affirmed by the Court of Appeals for the Eighth Circuit. Moore v. Kinney, 320 F.3d 767 (8th Cir.2003).

On July 26, 2004, Moore filed his second petition for postconviction relief following resentencing in the district court for Douglas County. The denial of this petition for postconviction relief gives rise to the current appeal. In this postconviction petition, Moore alleges that "the imposition of death by electric chair violates his rights under the Nebraska and United States Constitutions' prohibitions against cruel and unusual punishment and right not to be deprived [of] his life without due process." Moore relies on the 8th and 14th Amendments to the U.S. Constitution and Neb. Const. art. I, §§ 3, 9, and 15, and Neb.Rev.Stat. § 29-2532 (Reissue 1995). In his petition, Moore notes the adoption of a new protocol for implementation of electrocution which he alleges provides for "an uninterrupted application of 2,450 volts of electricity for 15 seconds." Moore makes a global challenge to electrocution, which is the statutorily mandated method of execution in Nebraska, wherein he claims that "under any protocol, the use of electrocution violates" his rights. Moore makes the more specific claim that the new protocol providing for a specific electrocution procedure violates his rights. Moore requested, inter alia, an evidentiary hearing and an order declaring electrocution unconstitutional.

On August 31, 2004, the district court entered an order denying Moore's motion for postconviction relief without an evidentiary hearing. The court stated, "The Nebraska Supreme Court in State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000) and in State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995) ruled that death by electrocution is not cruel and unusual punishment. Therefore, the Court finds that the defendant's pending motion for postconviction relief should be overruled and denied." Moore appeals. The State cross-appeals.

ASSIGNMENTS OF ERROR

Moore claims, restated, that the district court erred in denying his petition for postconviction relief without an evidentiary hearing. In the State's cross-appeal, it claims, restated, that the district court reached the right result for the wrong reasons and that, inter alia, the district court erred in reaching the merits of Moore's claims and in failing to find that Moore was procedurally barred from raising the claims raised in this postconviction petition.

STANDARDS OF REVIEW

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).

A defendant requesting postconviction relief must establish the basis for such relief, and findings of the district court will not be disturbed unless they are clearly erroneous. Id.

ANALYSIS

Moore filed this appeal challenging the denial of postconviction relief. The State filed a cross-appeal challenging the reasoning of the district court. We find merit to the arguments of the State on cross-appeal, the substance of which precludes Moore's success on appeal, and we therefore affirm...