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Moss v. Woods

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

October 19, 2016

JEFFREY WOODS, Respondent.



         This matter has come before the Court on a pro se amended habeas corpus petition under 28 U.S.C. § 2254. State prisoner Demetrick Deshawn Moss ("Petitioner") is challenging his 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 ("felony firearm"), Mich. Comp. Laws § 750.227b. The amended habeas petition alleges as grounds for relief that: (1) the prosecuting attorney on Petitioner's case did not include known res gestae witnesses on her witness list and did not assist Petitioner in producing the witnesses; (2) defense counsel was ineffective for failing to ask the prosecutor for assistance in securing critical res gestae witnesses; (3) there was insufficient evidence to support Petitioner's murder conviction; (4) Petitioner is entitled to a new trial on newly discovered evidence that an eyewitness saw the victim's friend accidentally shoot the victim; (5) trial and appellate counsel failed to investigate potential witnesses to the crime; and (6) Petitioner is actually innocent and entitled to a new trial on the basis of evidence that someone other than Petitioner accidentally shot the victim. Respondent Jeffrey Woods urges the Court through counsel to deny the petition on the basis that one of Petitioner's claims is procedurally defaulted and that none of Petitioner's claims have merit. The Court agrees that Petitioner's claims do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Procedural History

         Petitioner was charged in Wayne County, Michigan with first-degree (premeditated) murder, felon in possession of a firearm, and felony firearm. He was tried jointly with his brother Derek Moss in Wayne County Circuit Court. Derek chose to have a jury decide his case, but Petitioner opted to have the trial judge decide his case.

         The charges against the two Moss brothers arose from the fatal shooting of Cardell Lewis ("the victim") in Detroit on September 21, 2008. The main evidence against Petitioner at trial

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) (unpublished).[1]

         The forensic pathologist testified that the victim was shot in the back of his right thigh, that it was a life-threatening injury, and that the manner of death was homicide. There was other evidence that both Petitioner and Derek Moss left the State of Michigan and evaded the authorities for a time after the shooting. After both men were arrested in separate incidents, Petitioner tried to communicate with Derek Moss and suggest to Derek that he pretend not to know anything about the shooting. Later, Petitioner attempted to make a deal with the authorities and when that did not work, he tried to have a few people convince Mauldin not to testify at Petitioner's and Derek's trial.

         On July 7, 2009, the trial court found Petitioner guilty of second-degree murder, as a lesser-included offense to first-degree murder, and guilty as charged on the firearm counts. On July 28, 2009, the trial court sentenced Petitioner to two years in prison for the felony-firearm conviction, followed by concurrent terms of forty to sixty years in prison for the murder conviction and three to ten years for the felon-in-possession conviction.

         In an appeal as of right, Petitioner argued that: (1) the prosecutor failed to list all res gestae witnesses on her witness list and did not provide reasonable assistance in producing those witnesses; (2) defense counsel was ineffective for failing to request the prosecutor's assistance in securing critical witnesses; and (3) there was insufficient evidence at trial to support the murder conviction. The Michigan Court of Appeals rejected Petitioner's claims and affirmed his convictions. See Id. On May 24, 2011, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Moss, 489 Mich. 932 (2011) (table).

         On or about October 31, 2011, Petitioner filed a motion for an evidentiary hearing on newly discovered evidence from someone named Michael Smith, who claimed to be an eyewitness to the shooting. The state trial court denied Petitioner's motion, see People v. Moss, No. 09-003073-01-FC, Opinion (Wayne Cty. Cir. Ct. Sept. 12, 2012), and the State's appellate courts denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Moss, No. 314791 (Mich. Ct. App. Sept. 23, 2013) (unpublished); People v. Moss, 495 Mich. 917 (2013) (table).

         Meanwhile, on October 15, 2012, Petitioner filed his first habeas corpus petition in which he raised the three issues that he presented to the state courts in his appeal of right. On November 28, 2012, the Court summarily dismissed the habeas petition on the basis that the petition was barred by the habeas statute of limitations, 28 U.S.C. § 2244(d). See ECF No. 6. Petitioner appealed the Court's decision, and on January 14, 2014, the United States Court of Appeals for the Sixth Circuit vacated this Court's judgment and remanded the case for further proceedings. See Moss v. Woods, No. 13-1038 (6th Cir. Jan. 14, 2014) (unpublished).

         Petitioner then filed a motion to amend his habeas petition, ECF No. 15, and an amended habeas petition, ECF No. 16, which included the three claims that Petitioner raised in his initial habeas petition and the following additional issues: (4) Petitioner is entitled to a new trial on newly discovered evidence from Michael Smith that Mauldin 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 of actual innocence, that is, Michael Smith's affidavit that he saw Mauldin accidentally shoot the victim. The Court granted Petitioner's motion to amend and re-opened this case. See ECF No. 17.

         After Respondent filed a response to the petition, ECF No. 20, Petitioner moved to amend his habeas petition a second time, ECF No. 32, but he did not list any new constitutional claims in his motion, and he admitted that he had not exhausted state remedies for the new claims he sought to add to his habeas petition. The Court therefore denied Petitioner's motion. See ECF No. 33. Petitioner appealed the Court's denial of his second motion to amend, but the Sixth Circuit Court of Appeals dismissed the appeal for lack of jurisdiction. See Moss v. Woods, No. 16-1085 (6th Cir. Mar. 3, 2016) (unpublished). The case is now ready for an adjudication of the six claims raised in Petitioner's amended petition.

         II. Standard of Review

         "The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richer, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(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.

28 U.S.C. § 2254(d).

Under the "contrary to" clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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. Under the "unreasonable application" clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., opinion of the Court for Part II). "[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. Rather, that application must also be unreasonable." Id. at 411.

         "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and 'demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam):' Renico v. Lett, 559 U.S. 766, 773 (2010). "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." Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

         III. Analysis

         A. The Alleged Failure to List all Res Gestae Witnesses (claim one)

         Petitioner alleges that the prosecutor did not include all known res gestae witnesses[2] in her witness list and also failed to provide him with reasonable assistance in producing the witnesses so that he could support his claim of self-defense. Petitioner further alleges that the prosecutor's omissions deprived him of his right to present a defense and his right to confront the witnesses against him.

         Petitioner raised his claim as a state-law argument on direct appeal from his convictions. He maintained that the prosecution did not comply with Mich. Comp. Laws § 767.40a(1), which requires the prosecutor to attach a list of all known res gestae witnesses to the criminal information, and Mich. Comp. Laws § 767.40a(5), which requires the prosecutor to provide reasonable assistance in locating and serving process on a witness. The Michigan Court of Appeals reviewed Petitioner's claim for "plain error" because Petitioner did not preserve his claim for appellate review by raising the claim in the trial court.[3] The Court of Appeals then determined that Petitioner had failed to establish a plain error because the prosecutor was ...

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