United States District Court, E.D. Michigan, Southern Division
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
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
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
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).
conviction was affirmed on appeal. Id., lv. den. 491
Mich. 934, 814 N.W.2d 292 (2012).
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).
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
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.
Standard of Review
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:
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