United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING HABEAS PETITION IN ABEYANCE AND CLOSING THE CASE FOR ADMINISTRATIVE PURPOSES
VICTORIA A. ROBERTS, District Judge.
This matter is before the Court on Petitioner Chad Moore's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner was convicted in the Midland Circuit Court of delivery of methamphetamine, MICH. COMP. LAWS § 333.7401(2)(b)(i). As a result of this conviction Petitioner is currently serving a sentence of 20-to-40 years. The petition raises four claims: 1) the trial court erred in admitted evidence of Petitioner's prior offenses, 2) the prosecutor committed misconduct during opening statements and closing arguments, 3) the trial court misapplied the habitual offender sentencing statute, and 4) Petitioner was denied the effective assistance of counsel at trial and on appeal. The Court finds that Petitioner has not exhausted his state court remedies with respect to his fourth claim. Therefore, the petition will be stayed and held in abeyance to allow Petitioner to complete state court review of his unexhausted claim.
I. Facts and Procedural History
Charles Derr testified at Petitioner's trial that he knew Petitioner and used to buy methamphetamine from him. He met Petitioner in April of 2010, when Petitioner was at a friend's house, and Petitioner was cooking methamphetamine. Derr testified that he met with Petitioner once a week or once a month, depending on what was going on. He purchased methamphetamine from him in locations including down the road from his house, by a little gas station, back roads and sides of the road. He had been to Petitioner's house or his brother's house a few times. The purchases at issue happened between April 2010 and January 2011. Specifically, Derr performed a controlled buy of methamphetamine from Petitioner on January 13, 2011.
James Harnick testified that he had known Petitioner since he was a young kid. Petitioner had asked Harnick for a ride, and Harnick drove him to meet some guys from Beaverton. According to Harnick, he drove to Olson Road, and Petitioner had him flash his lights. A guy got out of another car and walked up to Harnick's car, and spoke to Petitioner. Harnick testified that Petitioner and the informant traded stuff back and forth regularly but that Harnick didn't see the money traded. Harnick said he figured the transaction was drug-related.
Detective Dustin Box testified that in January of 2011, he received some information concerning Petitioner. Det. Box had contact with Charles Derr, and set up a controlled buy for methamphetamine. Det. Box acted as an undercover officer, and drove Derr to meet Petitioner. Derr made a cell phone call to Petitioner, telling him they were there. Petitioner told the confidential informant that he had to package up the methamphetamine and he would be right there. Petitioner's van soon flashed its lights, and Derr got out. He came back a few minutes later and showed Det. Box the methamphetamine. Det. Box ran the van's license plate and it came back to James Harnick. The information Derr received originally was that Petitioner was making his own meth. Det. Box did not arrest him that night because he was hoping to get a couple of buys into Petitioner.
Based on this evidence Petitioner was convicted and sentenced as indicated above.
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claims in his brief on appeal and in his pro se supplemental brief:
I. The trial court abused its discretion by overruling Moore's objection to the prosecution's introduction of evidence of Moore's other crimes where reasonable notice of the intent to introduce such evidence was not given by the prosecution.
II. Moore was denied a fair trial by the prosecutor's opening and closing argument in which they stated that police were receiving "numerous tips" and that "fingers were pointing to" Moore as "being involved" and that police "were receiving information about methamphetamine being sold" and also received information from witness Derr and that all of that information "pointed to" Moore.
III. The sentencing court erred by entering a judgment of sentence stating that Moore was sentenced using a general habitual offender statute, Mich. Comp. Laws § 769.12, where it specifically sentenced him using the repeat controlled substance offender statute, Mich. Comp. Laws § 333.7413(2).
IV. Prosecutorial tactics rose to the level of a due process violation.
V. The judge's biased conduct denied Moore equal protection.
VI. The cumulative effect of error and conduct by the People denied ...