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Moore v. Burt

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

June 29, 2017

JAMES MOORE, Petitioner,
v.
SHERRY BURT, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE

         James Moore, (“Petitioner”), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for second-degree murder, M.C.L.A. § 750.317, felon in possession of a firearm, M.C.L.A. § 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise from the August 1, 2009, fatal shooting of Tyrone Rayford on Conley Street in Detroit. Evidence indicated that defendant's cousin “Jay Rock” had an altercation with two teenage girls. The girls reported the incident to female relatives who lived on Conley Street and also telephoned Rayford, their uncle. Following a confrontation and argument between Jay Rock and the girls' relatives, Jay Rock was seen leaving the area. Subsequently, Rayford, who was visibly intoxicated and upset, arrived, comforted his nieces, and then stated that he would take care of the matter. As Rayford walked in the middle of the street, calling out for the “coward” who assaulted his nieces, he was shot six times, including once in the head. Witnesses testified that after the shooting, defendant approached with a gun in his hands, indicated that he did not intend to actually shoot Rayford, and fled through a vacant lot toward his home. At trial, defendant presented an alibi defense through himself, his wife, and his friend James Sobczak.
Defendant's first trial ended in a mistrial after the prosecutor attempted to impeach Sobczak's trial testimony that he was living with defendant at the time of the shooting with evidence that Sobczak was a registered sex offender who did not list defendant's address as his registered address. The trial court ruled that the evidence identifying Sobczak as a sex offender violated MRE 609 and granted defendant's motion for a mistrial. Before defendant's second trial, the trial court denied defendant's motion to dismiss on double jeopardy grounds. Defendant was thereafter retried and convicted of second-degree murder and the firearm offenses.

People v. Moore, No. 298829, 2011 WL 6268206, at *1 (Mich. Ct. App. Dec. 15, 2011).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 491 Mich. 934, 814 N.W.2d 292 (2012).

         Petitioner returned to the trial court and filed a motion for relief from judgment which raised six claims, which was denied. People v. Moore, No. 09-0020960-01-FC (Wayne County Cir. Ct., July 2, 2013). Petitioner's application for leave to appeal was denied. People v. Moore, No. 319815 (Mich. Ct. App. Feb. 27, 2014); lv. den. 497 Mich. 868, 853 N.W.2d 366 (2014).

         Petitioner now seeks a writ of habeas corpus on the following grounds:

I. Petitioner James Moore is entitled to a writ of habeas corpus where his rights under the Double Jeopardy Clause of the United States Constitution were violated when the prosecutor's misconduct precipitated a mistrial at the first trial and the case was then retried over trial counsel's objection.
II. Petitioner James Moore is entitled to a writ of habeas corpus where his Sixth Amendment right to confront witnesses against him was violated when the prosecution introduced statements made by a police officer during custodial interrogation and the officer did not testify nor did he have an opportunity for cross-examination.
III. Where Petitioner received new evidence that the State's star witness posted an admission to perjury on Facebook, which clearly demonstrates that her trial testimony was perjured, habeas relief is appropriate because such actions violated due process.

         II. Standard of Review

         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 ...

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