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Moore v. Barrett

United States District Court, E.D. Michigan, Southern Division

October 14, 2016

JOE BARRETT, Respondent,



         Petitioner 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.[1] For the reasons that follow, the petition for writ of habeas corpus will be denied.

         I. BACKGROUND

         Petitioner was convicted following a jury trial in the Macomb County Circuit Court.

         Petitioner began sexually abusing his step-daughter, S.F., when she was eleven years old.[2] 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).

         Petitioner testified at trial and denied sexually abusing his step-daughter. (Tr. 7/19/07, p. 14).

         Following 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, 905.

         After 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).

         Petitioner 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).

         Petitioner was re-sentenced on September 12, 2012 to concurrent terms of 136 months to 30 years' imprisonment for each of his convictions.

         In 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).

         On June 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 following grounds:

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 instruction.
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 108-180 months.[3]

         II. STANDARD

         28 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; or
(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.

         A 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. at 410-11.

         The 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).


         A. Claim # 1. The ineffective assistance of counsel claims.

         To show 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).

         More 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 Strickland standard itself.”Harrington, 562 U.S. at 101.

         Petitioner initially appears to argue that he was constructively denied the assistance of counsel because his trial attorney failed to subject the prosecutor's ...

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