United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
D. BORMAN, UNITED STATES DISTRICT JUDGE
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.
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.
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
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).
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.
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.
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)
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).
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,
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.
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
Standard of Review
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;
(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
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
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.
Alleged Failure to List all Res Gestae Witnesses
alleges that the prosecutor did not include all known res
gestae witnesses 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.
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. The Court of Appeals then
determined that Petitioner had failed to establish a plain
error because the prosecutor was ...