United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE
Dante Deshawn Moore presently confined at the Parnall
Correctional Facility in Jackson, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, in which he challenged his conviction for
four counts of criminal sexual conduct in the
first-degree. For the reasons that follow, the petition
for writ of habeas corpus will be denied.
was convicted following a jury trial in the Macomb County
began sexually abusing his step-daughter, S.F., when she was
eleven years old. Petitioner would touch the victim when her
mother and sisters were away from the home. Petitioner rubbed
S.F.'s vagina, and touched and kissed her breasts and
chest. S.F. testified that Petitioner assaulted her numerous
times. (Tr. 7/18/07, pp. 12, 15, 21, 23, 27-29, 31).
Petitioner isolated S.F., prohibiting her from going outside
to play or socialize and kept her at home. (Id., p.
25). Petitioner warned S.F. he would kill her and her mother
if she told anyone about the abuse. (Id., p. 27).
Petitioner was sometimes armed with a knife during the
assaults and would show it to S.F., threatening to kill her
if she reported the abuse. (Id., pp. 32-33).
Petitioner physically abused S.F.'s mother, almost daily,
which increased S.F.'s fear of Petitioner. (Id.,
pp. at 34, 40). S.F. did not report the sexual abuse until
after her mother divorced Petitioner and he had moved out of
the house. S.F. only reported the abuse in October, 2006,
when she was taken to Harbor Oaks Hospital by the police
after fighting with her mother. (Id., pp. 18-20).
testified at trial and denied sexually abusing his
step-daughter. (Tr. 7/19/07, p. 14).
his conviction, Petitioner's appellate counsel filed a
motion for a remand to the trial court for an evidentiary
hearing pursuant to People v. Ginther, 212 N.W.2d
922 (Mich. 1973) on his ineffective assistance of counsel.
People v. Moore, No. 281046 (Mich. Ct. App. Feb. 27,
2009). The motion was granted and an evidentiary hearing was
held on June 4, 2010; the judge determined that counsel was
not ineffective. Hr'g Tr. 12 June 4, 2010, ECF No. 10-12,
the remand proceedings, the Court of Appeals affirmed
Petitioner's convictions and sentences. People v.
Moore, No. 281046, 2011 WL 2140361 (Mich. Ct. App. May
31, 2011). Petitioner's motion for reconsideration also
was denied. People v. Moore, No. 281046 (Mich. Ct.
App. Aug. 19, 2011).
subsequently filed an application for leave to appeal the
Court of Appeals's decision with the Michigan Supreme
Court. The Michigan Supreme Court, in lieu of
granting leave to appeal, reversed the Court of Appeals's
judgment in part and remanded the case to the Macomb County
Circuit Court for resentencing, and in all other respects
denied the application. People v. Moore, 806 N.W.2d
306 (Mich. 2011).
was re-sentenced on September 12, 2012 to concurrent terms of
136 months to 30 years' imprisonment for each of his
2012, Petitioner filed his habeas petition, which was held in
abeyance pending the resolution of Petitioner's
re-sentencing appeal in the state courts. The court also
administratively closed the case. Moore v. Bergh,
No. 12-cv-14679; 2013 WL 2049136 (E.D. Mich. May 14, 2013).
Petitioner's new sentence was affirmed on appeal.
People v. Moore, No. 312909, 2014 WL 953571(Mich.
Ct. App. Mar. 11, 2014); leave to appeal denied at
852 N.W.2d 178 (Mich. 2014).
26, 2015, the court granted Petitioner's motion to lift
the stay and to amend his habeas petition. In his original
and amended petitions, Petitioner seeks relief on the
I. The Petitioner's trial counsel denied him effective
assistance of counsel when he did not obtain reports
concerning the assault charges filed against the complainant
which prompted her to “disclose” the instant
allegations to avoid pretrial detention, and failed to secure
expert testimony to respond to the pseudo-expert testimony of
the police officer.
II. This court should permit the [Petitioner] to conduct a
post-conviction discovery of evidence regarding the assault
charge brought against the complainant, the investigative
reports concerning the complainant's allegations, the CPS
records concerning the investigation of the other children,
and the school records in this matter.
III. The trial court committed reversible error in permitting
the investigating officer to testify as an expert witness in
this matter to highly contested propositions regarding the
behavior of children of domestic violence, and regarding
patterns of disclosure of teenage sexual abuse victims.
IV. The prosecutor reversibly erred by repeatedly injecting
and arguing that the [Petitioner] had exercised his
post-arrest right to remain silent. The fact that the
objections were sustained does not cure the taint of these
objections because there was no cautionary instruction and a
jury would have been incapable of honoring such an
V. [Petitioner] was denied his constitutional right to due
process where the trial court improperly determined that he
was guilty by a preponderance of the evidence of the untried
charges alleged to have occurred before complainant's
[sic] was thirteen and he must be resentenced.
VI. The law of the case doctrine precluded the prosecutor
from arguing and the trial court from finding
[Petitioner]'s minimum sentence guideline range exceeded
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
Supreme Court has explained that “[A] federal
court's collateral review of a state-court decision must
be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court
rulings, 'and ‘demands that state-court decisions
be given the benefit of the doubt.'” Renico v.
Lett, 559 U.S. 766, 773 (2010)((quoting Lindh v.
Murphy, 521 U.S. 320, 333, n.7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
“[A] state court's determination that a claim lacks
merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). The Supreme Court has emphasized “that
even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.”
Id. at 102 (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d),
“a habeas court must determine what arguments or
theories supported or...could have supported, the state
court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision” of the Supreme Court. Id. A
habeas petitioner should be denied relief as long as it is
within the “realm of possibility” that fairminded
jurists could find the state court decision to be reasonable.
See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Claim # 1. The ineffective assistance of counsel
that he was denied the effective assistance of counsel under
federal constitutional standards, Petitioner must satisfy a
two prong test. First, he must demonstrate that, considering
all of the circumstances, counsel's performance was so
deficient that the attorney was not functioning as the
“counsel” guaranteed by the Sixth Amendment.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In so doing, Petitioner must overcome a strong presumption
that counsel's behavior lies within the wide range of
reasonable professional assistance. Id. In other
words, Petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial
strategy. Strickland, 466 U.S. at 689. Second,
Petitioner must show that such performance prejudiced his
defense. Id. To demonstrate prejudice, he must show
that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694.
“Strickland's test for prejudice is a
demanding one. ‘The likelihood of a different result
must be substantial, not just conceivable.'”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
2011) (quoting Harrington, 562 U.S. at 112). The
Supreme Court's holding in Strickland places the
burden on the defendant who raises a claim of ineffective
assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding
would have been different, but for counsel's allegedly
deficient performance. See Wong v. Belmontes, 558
U.S. 15, 27 (2009).
importantly, on habeas review, “the question ‘is
not whether a federal court believes the state court's
determination' under the Strickland standard
‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.'”
Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)). “The pivotal question is whether the state
court's application of the Strickland standard
was unreasonable. This is different from asking whether
defense counsel's performance fell below
Strickland's standard.” Harrington v.
Richter, 562 U.S. at 101. Indeed, “because the
Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v.
Alvarado, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought
by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state
court must be granted a deference and latitude that are not
in operation when the case involves review under the
itself.”Harrington, 562 U.S. at 101.
initially appears to argue that he was constructively denied
the assistance of counsel because his trial attorney failed
to subject the prosecutor's ...