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

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U.S. Court of Appeals for the Ninth Circuit - 134 F.3d 378 (9th Cir. 1998)

Submitted Jan. 12, 1998. **Decided Jan. 15, 1998


Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.


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.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3