David Moss, Petitioner-appellant, v. William Duncan, Warden, Respondent-appellee, 134 F.3d 378 (9th Cir. 1998)

MEMORANDUM^* 

Non-capital state petitioner Moss mounts a post-AEDPA collateral attack on his sentence and his attorney's performance, alleging that a constitutionally deficient prior conviction was used to enhance the sentence. With an exception not relevant here, the Supreme Court has explicitly declined to pass on whether prior convictions may be challenged in a habeas attack on the sentence they are used to enhance, leaving no clearly established high court precedent to apply in this case. See Custis v. United States, 114 S. Ct. 1732, 1739 (1994); Brock v. Weston, 31 F.3d 887, 890-91 (9th Cir. 1994). This is fatal. 28 U.S.C. § 2254(d). And since Moss does not challenge his other prior felony, which alone would allow the enhancement, neither his attorney's performance nor his sentence are infirm.

AFFIRMED.