United States District Court, E.D. Michigan, Southern Division
AND ORDER GRANTING RESPONDENT'S MOTIONTO DISMISS T61,
DISMISSING THE HABEAS CORPUS PETITION Ml. DENYING
PETITIONER'S MOTION TO AMEND T81, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN
GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner Ricky Moore's
pro se habeas corpus petition under 28 U.S.C. § 2254,
petitioner's motion to amend the petition, and respondent
Jeffrey Woods' motion to dismiss the petition. Petitioner
seeks to challenge his convictions and sentences for
conspiracy to commit armed robbery, Mich. Comp. Laws
§§ 750.157a and 750.529, assault with intent to rob
while armed, Mich. Comp. Laws § 750.89, and possession
of a firearm during the commission of a felony, Mich. Comp.
Laws § 750.227b. Respondent urges the Court to dismiss
the petition on the basis that petitioner did not comply with
the one-year statute of limitations for habeas petitions. The
Court agrees with respondent that the petition is
time-barred. Accordingly, respondent's motion will be
granted, the petition will be dismissed, and petitioner's
motion to amend will be denied as moot.
state court provided the following brief summary of the facts
leading to the charges against petitioner:
On January 26, 2009, defendant [Ricky Moore], Robert Bates,
and Jonathan Walker were involved in the attempted, but
unsuccessful, robbery of Misbah Hans, an apartment building
owner. The next day, defendant [Moore] and Danny Gaskins
returned to the apartment building. Gaskins went inside
claiming to be interested in renting an apartment. While Hans
was showing Gaskins an apartment, Gaskins pulled a gun, shot
Hans multiple times, and then ran. Hans died. Criminal
charges against Bates, Walker, Gaskins and defendant [Moore]
People v. Moore, No. 299287, 2012 WL 2160983, at *1
(Mich. Ct. App. June 14, 2012).
was tried before a jury in Wayne County Circuit Court, and on
May 28, 2010, the jury found him guilty of two counts of
conspiracy to commit armed robbery, one count of assault with
intent to rob while armed, and two counts of possessing a
firearm during the commission of a felony. On June 30, 2010,
the trial court sentenced petitioner to two years in prison
for the felony-firearm convictions, followed by concurrent
terms of life imprisonment with the possibility of parole for
the conspiracy and assault convictions.
appeal from his convictions, petitioner argued that (1) the
trial court abused its discretion and violated his right of
confrontation by limiting his right to cross-examine
witnesses, and (2) the evidence was insufficient to support
his conspiracy and assault convictions. On June 14, 2012, the
Michigan Court of Appeals affirmed petitioner's
conviction in an unpublished, per curiam opinion,
see id., and on October 22, 2012, the Michigan Supreme Court
denied leave to appeal. See People v. Moore, 493
Mich. 871; 821 N.W.2d 550 (2012).
17, 2013, petitioner filed a motion for relief from judgment
in the state trial court. He alleged that: (1) the trial
court abused its discretion and violated his rights under the
Eighth Amendment to the United States Constitution by
sentencing him to life imprisonment; (2) he was entitled to a
new trial on the basis of newly discovered evidence that he
did not participate in the charged crimes; (3) inadmissible
hearsay was admitted at his trial; (4) the prosecutor denied
him a fair trial by (a) shifting the burden of proof and (b)
presenting an audio recording of an individual who did not
testify; and (5) trial counsel was ineffective for failing to
(a) object to the use of audio recordings, (b) object to
prosecutorial misconduct, and (c) call a witness who had
information concerning petitioner's innocence.
trial court denied petitioner's motion, and on April 29,
2015, the Michigan Court of Appeals denied petitioner's
application for leave to appeal the trial court's
decision. See People v. Moore, No. 325929 (Mich. Ct.
App. Apr. 29, 2015). On March 29, 2016, the Michigan Supreme
Court denied leave to appeal for failure to establish
entitlement to relief under Michigan Court Rule 6.508(D).
See People v. Moore, 499 Mich. 881; 876 N.W.2d 538
October 10, 2016, Petitioner signed his habeas petition, and
on October 13, 2016, he allegedly placed his petition in the
prison mailing system for mailing to the Court. On December
7, 2016, the Clerk of the Court filed the petition.
Petitioner alleges as grounds for relief the two claims that
he raised on direct appeal and the five claims that he raised
during state collateral proceedings.
asserts that petitioner's claims are barred from
substantive review by the applicable statute of limitations.
Petitioner maintains in a response to respondent's motion
that his petition is timely, and in his motion to amend the
petition, petitioner seeks to show "cause and
prejudice" for any procedural errors that he committed
in state court.
The Statute of Limitations
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
established a one-year period of limitations for state
prisoners to file their federal habeas corpus petitions.
Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28
U.S.C. § 2244(d)(1)); Holbrookv. Curtin, 833
F.3d 612, 615 (6th Cir. 2016) (citing 28 U.S.C. §
2244(d)(1)), cert, denied sub nom. Woods v.