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Albert Ray Moore v. State of Idaho

April 15, 2013

ALBERT RAY MOORE,
PETITIONER-APPELLANT,
v.
STATE OF IDAHO, RESPONDENT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

The opinion of the court was delivered by: Gratton, Judge

) 2013 Unpublished Opinion No. 445

) Stephen W. Kenyon, Clerk ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY )

Order summarily dismissing petition for post-conviction relief, affirmed.

Albert Ray Moore appeals from the district court's order summarily dismissing his petition for post-conviction relief. Moore asserts the district court erred because he raised a genuine issue of material fact in his various claims of ineffective assistance of counsel. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In North Dakota, Moore pled guilty to being in actual physical control of a vehicle while under the influence of intoxicating liquor. Then in Idaho, Moore was arrested for driving under the influence (DUI) in September 2006 (the first case) and April 2007 (the second case). Each arrest led to Moore being convicted of felony DUI. In both cases, Moore argued that his prior conviction in North Dakota could not be used to enhance the Idaho DUI charges to felonies. Moore pled guilty in the first case, while preserving for appeal his claim that the North Dakota

1

conviction could not be used to enhance the DUI conviction in Idaho. In the second case, Moore proceeded to trial and was convicted of DUI. Moore appealed in both cases. The two appeals were consolidated and addressed by this Court in State v. Moore, 148 Idaho 887, 231 P.3d 532 (Ct. App. 2010). We affirmed the district court's determination that the North Dakota conviction was "substantially conforming" and that Moore had not shown that conviction to be constitutionally defective. This Court rejected the challenges to the use of the North Dakota conviction that Moore had made before the district court. However, we also vacated the judgment of conviction in his other DUI case because the documentary evidence of the North Dakota conviction was not properly authenticated and, therefore, had been wrongly admitted at trial. Id. at 892-99, 231 P.3d at 537-44.

On remand, the district court determined that the reservations in Moore's conditional guilty plea were not as broad as Moore contended, in that he did not reserve a right to relief from his guilty plea if the Court of Appeals found evidentiary trial error in the other case. The district court entered an amended judgment of conviction and later entered a second amended judgment of conviction to correct the sentence. Moore appealed from his second amended judgment of conviction and we affirmed. See State v. Moore, 152 Idaho 203, 204-06, 268 P.3d 471, 472-74 (Ct. App. 2011).

Thereafter, Moore filed a petition for post-conviction relief asserting claims in relation to the second case in which he went to trial. The district court summarily dismissed Moore's petition. Moore timely appealed and we affirmed. See Moore v. State, Docket No. 38591 (Ct. App. Sept. 17, 2012) (unpublished).

Moore then filed the present post-conviction action relative to the case in which he pled guilty. Moore was appointed counsel and an amended petition was filed. The amended petition raised seven claims for relief. One claim was later withdrawn, while five of the remaining claims were summarily dismissed. The issue of whether trial counsel was ineffective for failing to file a notice of appeal was dismissed by the district court after ...


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