United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTIONS FOR AN EVIDENTIARY HEARING (ECF Nos. 25 and 29), DENYING AS MOOT PETITIONER'S MOTION TO AMEND HIS REPLY (ECF No. 26), AND DENYING HIS MOTION TO APPOINT COUNSEL (ECF
PAUL D. BORMAN, District Judge.
On October 15, 2012, petitioner Demetrick Moss filed a pro se habeas corpus petition challenging his 2009 state convictions for second-degree murder, Mich. Comp. Laws § 750.317, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. The convictions arose
from the shooting death of Cardell Lewis during a drug territory dispute. The principal evidence implicating defendant was the testimony of Rodney Maudlin, who testified that he was with the victim when the two of them were approached by defendant and defendant's brother, Derek Moss. Defendant was carrying a pistol, accused Maudlin and the victim of stealing his narcotic sales, and struck Maudlin in the head with the gun. As Maudlin and the victim fled in different directions, Maudlin heard four gunshots and then saw defendant jump into Derek's Jeep and flee the area. The victim was thereafter found in a nearby alley. He died from a single gunshot wound. Defendant did not dispute firing his weapon during the episode, but claimed that he did so only toward the ground in self-defense, because Maudlin and the victim were chasing him and Maudlin was shooting at him.
People v. Moss, No. 293428, 2010 WL 4628697, *1 (Mich. Ct. App. Nov. 16, 2010).
Following Petitioner's convictions in Wayne County Circuit Court, the trial court sentenced him to concurrent terms of forty to sixty years in prison for the murder conviction and three to ten years for the felon-in-possession conviction. Petitioner received a consecutive sentence of two years in prison for the felony-firearm conviction. The Michigan Court of Appeals affirmed his convictions, see id., and the Michigan Supreme Court denied leave to appeal. See People v. Moss, 489 Mich. 932 (2011).
Petitioner subsequently filed a motion to amend and a motion for an evidentiary hearing in the state trial court. The trial court denied his motions, and the State's appellate courts denied leave to appeal.
On October 15, 2012, Petitioner filed his habeas corpus petition in this Court. He argued that: (1) the prosecuting attorney failed to include known res gestae witnesses on her witness list and did not assist Petitioner in producing the witnesses at trial; (2) trial counsel was ineffective for failing to request the prosecutor's assistance in securing the res gestae witnesses; and (3) there was insufficient evidence to support his conviction for second-degree murder.
On November 28, 2012, this Court summarily dismissed the habeas petition as untimely. Petitioner appealed the Court's decision, and on January 14, 2014, the Court of Appeals for the Sixth Circuit vacated this Court's judgment, concluded that Petitioner Moss's § 2254 petition was timely, and remanded the case for further proceedings. See Moss v. Woods, No. 13-1038 (6th Cir. Jan. 14, 2014).
Petitioner subsequently filed an amended habeas corpus petition in which he raised the same three claims that he presented to the Court in his initial habeas petition and the following three additional issues: (4) he was entitled to a new trial on newly discovered evidence that someone else accidentally shot the victim; (5) his trial and appellate attorneys were ineffective for failing to investigate evidence that several potential witnesses were present at the crime scene; and (6) he is entitled to a new trial on the basis that an eyewitness saw Rodney Maudlin pull a gun on Petitioner and accidentally shoot the victim.
Respondent Jeffrey Woods argues in an answer to the habeas petition that Petitioner is not entitled to relief because one of his claims is procedurally defaulted and none of his claims have merit. Currently pending before the Court are Petitioner's motions for an evidentiary hearing, motion to amend his reply to Respondent's answer to the habeas petition, and his motion for appointment of counsel.
I. The Motions for an Evidentiary Hearing
Petitioner alleges that an evidentiary hearing is necessary for a full and fair adjudication of his claims and to show that the deceased victim had a firearm in his hand. Petitioner contends that this point was not raised at trial even though it would have supported his defense that he acted in self defense.
Both the state trial court and the Michigan Court of Appeals rejected Petitioner's claim of self defense. Following Petitioner's bench trial, the trial court stated that it did not find Petitioner's version of the events and claim of self defense to be credible. On direct appeal, the Michigan Court of Appeals stated that
the evidence was sufficient to enable a rational trier of fact to reject defendant's claim of self-defense beyond a reasonable doubt and, instead, find that defendant ran after the unarmed victim and shot the ...