Moore v. Smith

Filing 11

MEMORANDUM OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER MOORE,
Petitioner,

Case Number 2:11-CV-12786
Honorable Arthur J. Tarnow

v.
WILLIAM SMITH,
Respondent.
________________________________________/

OPINION AND ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Christopher Moore, ("Petitioner"), presently incarcerated at the Boyer Road
Correctional Facility in Carson City, Michigan, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The petition challenges his May 12, 2004, Wayne
Circuit Court convictions for seven counts of first-degree criminal sexual conduct, MICH.
COMP. LAWS § 750.520b(1)(a), seven counts of second-degree criminal sexual conduct,
MICH. COMP. LAWS § 750.520c(1)(a), two counts of disseminating sexually explicit materials
to minors, MICH. COMP. LAWS § 722.675, and one count of third-degree home invasion.
MICH. COMP. LAWS § 750.110a(4). Petitioner received concurrent terms of 168 months-to50 years for each of his first-degree criminal sexual conduct convictions, 10-to-20 years for
each of his second-degree criminal sexual conduct convictions, 1-to-2 years for each of the
disseminating sexually explicit materials convictions, and 3-to-5 years for the home
invasion conviction. The sentences to run concurrently.
The petition raises the following three claims: (1) there was insufficient evidence to
sustain Petitioner’s criminal sexual conduct convictions; (2) the prosecutor obtained the

Moore v Smith, 11-CV-12786
conviction through the use of perjured testimony; and (3) trial counsel was ineffective for
failing to object to repeated acts of prosecutorial misconduct. The Court will deny the
petition because these claims are without merit. The Court will also deny Petitioner a
certificate of appealability.
I. Background
The charges against Petitioner involved allegations that he sexually molested his
ten-year-old sister-in-law and his two young step-children.
At Petitioner’s jury trial ID testified that she was the ten-year-old sister of Corina
Moore, Petitioner’s wife. About three years prior to trial, ID was at her sister’s house with
Petitioner. She was lying in bed watching television when Petitioner came into the bed, put
his hands in her shorts through the leg holes, and touched her skin on her “middle part”
where she goes “pee.” He also rubbed her “butthole” where she goes “poop.” Petitioner
took his hand away when the phone rang. ID hid under the bed when Petitioner left to
answer the phone. ID told her mother about the incident when she went home.
KW testified that she was Corina Moore’s eleven-year-old daughter. She testified
that when she was about six years old, Petitioner had her sit on his “middle part,” and it felt
hard. Another time, Petitioner took his fingers and rubbed on top of her “middle part” while
she had clothes on. Petitioner talked about “salt” coming out of his middle part.

Another

time, KW saw Petitioner wiggle her brother’s “thing.” Petitioner also told her brother, “come
lick on it,” and she saw her brother lick Petitioner’s penis.
KW described how on several occasions, Petitioner took two fingers and “spread”
her vagina after he unbuttoned and unzipped her pants. She also saw his pants get wet
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Moore v Smith, 11-CV-12786
almost every time when he spread her vagina. Petitioner also rubbed oil on his penis, and
asked KW to rub his penis with the oil on it, but she refused. KW told her mother, but she
did not believe her.
KW’s brother, YW, testified that he was nine years old at the time of trial. YW
testified that Petitioner made him and his sister undress. Petitioner made YW put his mouth
on Petitioner’s penis. These things occurred in his mother’s bedroom. YW saw Petitioner
rub his own penis and saw white stuff come out, which Petitioner called “salt.”
YW saw Petitioner put oil on his private parts as well as his sister’s private parts.
Petitioner also put the oil on his own private parts and then put YW on top of him while YW
was naked. Petitioner then “[b]umped [YW] up and down.” Petitioner also put oil on YW’s
penis and “wiggled”it. Petitioner once put the white stuff into YW’s mouth. Petitioner told
YW that he was doing these things “[t]o teach us . . . when we get married what to do.”
Petitioner told YW that he would get a spanking if he told.
Corina Moore testified that she was married to Petitioner. Petitioner used to watch
her two children when she was working. In January of 2004, she was informed about a
sexual assault on her little sister. As a result of this information, she questioned her two
children. KW told her that Petitioner had touched her where he should not have. YW told
her the same thing. Her two children then went to stay with their father, and Corina made
a police report and obtained a personal protection order against Petitioner.
On January 31, 2004, Petitioner broke into her apartment, saying he was “sick of
this.” He pushed the door open and threw Corina’s phone against a wall. She ran out to a
neighbor’s house and called the police. Petitioner followed her to the neighbor’s place and
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Moore v Smith, 11-CV-12786
begged Corina to talk with him. When he walked back outside, the police caught him after
a short chase.
Petitioner was advised of his constitutional rights and waived them. Petitioner
admitted to an officer that he violated the PPO. When Sgt. Jeffrey Lazarski of the Romulus
Police Department asked Petitioner about any sexual misconduct and the names of the
three children, Petitioner denied doing anything. Petitioner then told the officer how his
mother-in-law, Margaret Crump, had confronted him.
When Lazarski asked about KW, Petitioner stated she was very aware of her body,
and had asked him questions about her body. He indicated that twice she came into the
bedroom and pulled down her pants, and asked him where babies came from and about
pubic hair. Petitioner also said YW would pull down his pants “while he [Petitioner] was
helping him learn about sex,” and that YW complained about having only one testicle.
Petitioner felt YW’s testicles to check and found two. Petitioner also admitted to using the
word “salt” to describe sperm. He explained to YW how women became pregnant, and
talked about a man’s semen. However, Petitioner denied having put his penis in YW’s
mouth.
Later in his talk with Lazarski, Petitioner admitted that he was once naked and YW
was curious and looked at his penis and even wanted to smell it. Petitioner also admitted
to taking showers with YW. Petitioner stated it was possible that YW touched his penis or
that his mouth went on it, but he wasn’t aware of it, and he never told YW to do that.
According to Petitioner, he wanted the children to know what semen was, so they might
have seen him masturbating.
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In his written statement, Petitioner said he told the children about sexual organs to
educate them, and that he never touched or fondled them. The statement further indicated
that Petitioner denied any inappropriate touching. He indicated that KW would pull down
her pants, and ask questions. Petitioner stated that he did check YW’s testicles and talked
with him about semen, or “salt.” He said YW tried to smell his penis and could have
touched it with his face, and that YW could have put his penis in his mouth without
Petitioner knowing it happened. He stated the children caught him masturbating.
As for ID’s claims, Petitioner stated that “[s]he was leaning on me, gave me another
hug. I had my arm around her side, hand on her side and then went downstairs. I came
back upstairs in about 30 minutes and could not find her.”
After signing th written statement, Petitioner called his mother. He then asked the
officer if he could rip up his statement, but the officer told him that he could not do so.
At trial, Petitioner testified that he never touched KW in a sexual manner, and had
not spread her private parts with his fingers. He denied touching YW in a sexual manner,
and had not forced oral sex on him. He also denied putting his hands in ID’s clothing or
touching her butt, but admitted being in a bedroom with her, watching television. He
admitted giving a written statement to the police.
Based on this evidence Petitioner was convicted and sentenced as indicated above.
Petitioner filed an appeal in the Michigan Court of Appeals. His appellate counsel
filed a brief that raised the following claims:

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Moore v Smith, 11-CV-12786
I. The prosecutor deprived Mr. Moore of his state and federal constitutional
rights to a fair trial by using leading questions to elicit elements of the crimes
and by arguing facts not in evidence. If trial counsel waived any of the error
by failing to object to each and every instance of misconduct, he deprived Mr.
Moore of his constitutional right to the effective assistance of counsel.
II. The trial court erred in admitting Mrs. Moore’s hearsay statement that YW
had told her he and KW were abused by Mr. Moore.

Petitioner also filed a supplemental pro se brief that raised the following additional
claims:
I. Reversible error occurred when the defendant was denied a fundamentally
fair trial by repeated and prejudicial prosecutorial misconduct.
II. Defendant was denied the effective assistance of counsel where counsel
failed to object to the repeated various acts of prosecutorial misconduct.
The Court of Appeals affirmed Petitioner’s conviction in an unpublished opinion.
People v. Moore,No. 256302 ( Mich. Ct. App. October 18, 2005). Petitioner subsequently
filed an application for leave to appeal, which raised the claims
raised in both briefs. The Michigan Supreme Court denied the application because it was
not persuaded that the questions presented should be reviewed by the court. People v.
Moore, No. 130080 (Mich. Sup. Ct. April 28, 2006).
Petitioner returned to the trial court and filed a motion for relief from judgment,
raising the following claims:
I. Defendant cannot be convicted of disseminating sexually explicit material
because the statute exempted him.
II. Defendant was deprived of a fair trial because of inadmissible hearsay that
other children were assaulted by him.
III. Prosecutorial Misconduct.
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Moore v Smith, 11-CV-12786
IV. Defendant’s sentence is in violation of Blakely v. Washington, 542 U.S.
296 (2004) and United States v. Booker, 432 U.S. 220 (2005).
V. Defendant was denied effective assistance of counsel at trial and on
appeal.
VI. Defendant should be accorded relief because justice had not been done.
The trial court denied the motion by opinion and order dated April 14, 2009.
Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. The
application was denied “for failure to establish entitlement to relief under M.C.R. 6.508(D).”
People v. Moore, No. 297519 (Mich. Ct. App. July 28, 2010). Petitioner applied for leave
to appeal this decision in the Michigan Supreme Court but was also denied relief under
M.C.R. 6.508(D). People v. Moore,No. 141767 ( Mich. Sup. Ct. March 8, 2011).
Petitioner’s habeas petition raises the following claims:
I. There was insufficient evidence presented at trial to sustain the
convictions.
II. Petitioner’s conviction was obtained by the use of perjured testimony.
III. Petitioner’s trial counsel was ineffective for failing to object to repeated
acts of prosecutorial misconduct.

II. Standard of Review
28 U.S.C. § 2254(d) provides:
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 —

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Moore v Smith, 11-CV-12786
(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 [*10]
determination of the facts in light of the evidence presented in the State court
proceedings.
28 U.S.C. § 2254(d).
"A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule
that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set
of facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)). "[T]he 'unreasonable application' prong of the statute permits a federal habeas
court to 'grant the writ if the state court identifies the correct governing legal principle from
[the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's
case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413).
However, "[i]n order for a federal court find a state court's application of [Supreme Court]
precedent 'unreasonable,' the state court's decision must have been more than incorrect
or erroneous. The state court's application must have been 'objectively unreasonable.'"
Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "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."
Harrington v. Richter, 562 U.S. , 131 S. Ct. 770, 789, 178 L. Ed. 2d 624 (2011), (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that
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Moore v Smith, 11-CV-12786
habeas corpus is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal. . . . As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the state
court's ruling on the claim being presented in federal court 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 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court's review to a determination of
whether the state court's decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) "does not require citation of [Supreme Court]
cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as
neither the reasoning nor the result of the state-court decision contradicts them." Early v.
Packer, 537 U.S. 3, 8 (2002). "[W]hile the principles of "clearly established law" are to be
determined solely by resort to Supreme Court rulings, the decisions of lower federal courts
may be instructive in assessing the reasonableness of a state court's resolution of an
issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v. Bowersox,
340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich.
2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only
with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998).
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Moore v Smith, 11-CV-12786
III. Discussion
A. Procedural Default
Respondent asserts that each of the Petitioner’s claims is procedurally barred from
review because of Petitioner’s alleged various failures to properly present his claims to the
state courts.
While the procedural default doctrine precludes habeas relief on a defaulted claim,
the procedural default doctrine is not jurisdictional. See Trest v. Cain, 522 U.S. 87, 89
(1997). Thus, while a procedural default issue should ordinarily be resolved first, "judicial
economy sometimes dictates reaching the merits of [a claim or claims] if the merits are
easily resolvable against a petitioner while the procedural bar issues are complicated."
Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (internal citations omitted); see
also, Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997) (noting that procedural default
issue should ordinarily be resolved first, but denying habeas relief on a different basis
because resolution of the default issue would require remand and further judicial
proceedings); Walters v. Maass, 45 F.3d 1355, 1360 n.6 (9th Cir. 1995). Because it is
more efficient to decide Petitioner’s claims on the merits than to address the complicated
issues raised by Respondent’s procedural default defense, the Court will follow that course.

B. Sufficiency of the Evidence
Petitioner first claims that there was insufficient evidence presented at his trial to
sustain his criminal sexual conduct convictions. As the Court understands his argument,
Petitioner asserts that ID’s father manipulated ID to falsely accuse him. He also seems to
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Moore v Smith, 11-CV-12786
assert that his mother-in-law and wife developed some sort of psychological complex
causing them to falsely accuse him.
"[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which
he is charged." In re Winship, 397 U.S. 358, 364 (1970). On direct review, review of a
sufficiency of the evidence challenge must focus on whether "after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original). In the habeas context, "[t]he Jackson standard must
be applied 'with explicit reference to the substantive elements of the criminal offense as
defined by state law.'" Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting
Jackson, 443 U.S. at 324 n.16).
"Two layers of deference apply to habeas claims challenging evidentiary sufficiency."
McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191,
204-05 (6th Cir. 2009)). First, the Court "must determine whether, viewing the trial
testimony and exhibits in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt."
Brown, 567 F.3d at 205, (citing Jackson, 443 U.S. at 319). Second, if the Court were "to
conclude that a rational trier of fact could not have found a petitioner guilty beyond a
reasonable doubt, on habeas review, [the Court] must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable." Id.

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Moore v Smith, 11-CV-12786
Petitioner’s argument boils down to the assertion that the testimony of the victims
is insufficient because it was the product of ID’s father’s manipulations and was otherwise
not credible. The question whether the jury should have disregarded the testimony of the
witnesses, however, is beyond the scope of the federal court's authority on habeas review.
See Johnson, 585 F.3d at 931-32 (habeas court may not reweigh the evidence adduced
at trial, determine certain witnesses should not be deemed credible, or substitute the
federal court's judgment for that of the trial court); Martin v. Mitchell, 280 F.3d 594, 618 (6th
Cir. 2002) (attacks on witness credibility are simply challenges to the quality of the
prosecution’s evidence, and not to the sufficiency of the evidence). The testimony of the
victims, which the jury obviously chose to believe despite Petitioner’s arguments,
established the essential elements of the offenses for which Petitioner was convicted.
Sufficient evidence was presented at trial to support Petitioner’s criminal sexual conduct
convictions. Petitioner is therefore not entitled to habeas relief on his first claim.

C. Perjured Testimony
Petitioner’s second claim asserts that the prosecutor relied on the perjured testimony
of the victims at trial.
A prosecutor's knowing use of perjured testimony to secure a conviction violates a
defendant's right to due process. Giglio v. United States, 405 U.S. 150, 153 (1972); Miller
v. Pate, 386 U.S. 1, 7 (1967); Napue v. Illinois, 360 U.S. 264, 269 (1959). In order to
establish a due process violation, the burden is on the criminal defendant to show that the
statements were actually false, that they were material, and the prosecution knew that the
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Moore v Smith, 11-CV-12786
testimony was actually perjured. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.
1989). Mere inconsistencies in the testimony of the same witness do not establish the
knowing use of perjured testimony by the prosecutor. Coe v. Bell, 161 F.3d 320, 343 (6th
Cir. 1998).
In the present case, Petitioner establishes, at most, some inconsistencies within the
victims’ testimony and some reasons a jury could have disbelieved them. These
inconsistencies, and the credibility of the victims, were explored on cross-examination by
Petitioner's counsel, and the jury chose to credit the testimony of the victims over that of
Petitioner. The admission of the victims’ testimony did not violate Petitioner's due process
rights.

D. Prosecutorial Misconduct
Finally, Petitioner asserts that the prosecutor committed misconduct by
misrepresenting the evidence presented and vouching for the credibility of KW, and that
his counsel was ineffective for failing to object.
The United States Supreme Court has made clear that prosecutors must "refrain
from improper methods calculated to produce a wrongful conviction." Berger v. United
States, 295 U.S. 78, 88 (1935). To prevail on a claim of prosecutorial misconduct, a habeas
petitioner must demonstrate that the prosecutor's conduct or remarks "so infected the trial
with unfairness as to make the resulting conviction a denial of due process." Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974); see also Darden v. Wainwright, 477 U.S. 168,

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181(1986) (citing Donnelly); Parker v. Matthews,

U.S.

, 132 S. Ct. 2148, 2153, 183 L.

Ed. 2d 32 (2012) (confirming that Donnelly/Darden is the proper standard).
On direct examination, the prosecutor questioned KW about what she described as
Petitioner “spreading” her vagina. KW testified, “he would go and like open it like that
(indicating). He would open my vagina.” Id., at 134. The prosecutor also asked clarifying
questions seeking yes/no answers, such as: “So was he touching your skin?” “You said he
put his two fingers like in and spread your vagina?” “Did you tell Chris that it hurt when he
spread your vagina?”
During closing argument, the prosecutor sought to establish the element of sexual
penetration with respect to KW by stating: “[KW] didn’t say that he stretched the skin like
this (indicating). She said – she demonstrated with her hands. Some part of his finger had
to penetrate however slight – that’s what the judge is going to tell you – however slight he
had to penetrate that little girl. And I think she was very very very graphic, and she was
very clear and very concise about how that would be.” Tr II, at 180.
Petitioner asserts that this line of argument was an unfair characterization of KW’s
testimony and amounted to vouching for her credibility. A prosecutor may not express a
personal opinion concerning the guilt of a defendant or the credibility of trial witnesses,
because such personal assurances of guilt or vouching for the veracity of witnesses by the
prosecutor "exceeds the legitimate advocates' role by improperly inviting the jurors to
convict the defendant on a basis other than a neutral independent assessment of the
record proof." Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999). However, a
prosecutor is free to argue that the jury should arrive at a particular conclusion based upon
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the record evidence. Id. "[G]enerally, improper vouching involves either blunt comments,
or comments that imply that the prosecutor has special knowledge of facts not in front of
the jury or of the credibility and truthfulness of witnesses and their testimony." United States
v. Francis, 170 F.3d 546, 550 (6th Cir. 1999) (internal citations omitted).
There was nothing improper about the complained-of line of questioning or
argument. The child witness was properly asked to describe what she alleged Petitioner
had done to her. She apparently described what she meant by “spreading” with words and
gestures. The prosecutor then properly commented on this testimony during closing
argument to suggest that the description entailed sexual penetration. The comment was
a fair argument to make based on the evidence presented at trial and in no way constituted
improper vouching. Petitioner’s counsel was also therefore not ineffective for failing to
make a meritless objection. See Bradley v. Birkett, 192 Fed. Appx. 468, 475 (6th Cir.
2006).
Petitioner’s third claim is without merit.

IV. Conclusion
Based on the foregoing analysis, the Court concludes that Petitioner’s claims are
without merit and he has failed to demonstrate entitlement to habeas relief. Accordingly,
the Court DISMISSES the petition for writ of habeas corpus.
Before Petitioner may appeal this decision, a certificate of appealability must issue.
See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a constitutional
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right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on the merits,
the substantial showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In applying this standard, a court may not conduct a full merits review,
but must limit its examination to a threshold inquiry into the underlying merit of the claims.
Id. at 336-37. The Court concludes that a certificate of appealability is not warranted in this
case because reasonable jurists could not debate the Court’s assessment of Petitioner’s
claims. The Court will also deny Petitioner permission to proceed on appeal in forma
pauperis because an appeal could not be taken in good faith.
After conducting the required inquiry and for the reasons stated herein, the Court is
satisfied that jurists of reason would not find the Court's decision debatable. No certificate
of appealability is warranted in this case. Accordingly, the Court DENIES a certificate of
appealability.
IT IS SO ORDERED.

Dated: March 28, 2013

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

I hereby certify that a copy of the foregoing document was served upon parties/counsel of record on March
28, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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