Moore v. Bergh
OPINION AND ORDER DENYING 14 Petition for Writ of Habeas Corpus and the 1 Petition for Writ of Habeas Corpus filed by Dante Moore, and DECLINING to issue a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
DANTE DESHAWN MOORE,
Case No. 2:12-cv-14679
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner Dante Deshawn Moore presently confined at the Parnall Correctional
Facility in Jackson, Michigan, filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, in which he challenged his conviction for four counts of criminal
sexual conduct in the first-degree.1 For the reasons that follow, the petition for writ of
habeas corpus will be denied.
Petitioner was convicted following a jury trial in the Macomb County Circuit Court.
Petitioner began sexually abusing his step-daughter, S.F., when she was eleven
years old. 2 Petitioner would touch the victim when her mother and sisters were away
from the home. Petitioner rubbed S.F.’s vagina, and touched and kissed her breasts
and chest. S.F. testified that Petitioner assaulted her numerous times. (Tr. 7/18/07, pp.
Mich. Comp. Laws § 750.520b(1)(b); Mich. Stat. Ann. § 28.788(2)(1)(b).
Because the victim was a minor at the time of the offenses and the time of trial,
the court refers to the victim by her initials to protect her privacy.
12, 15, 21, 23, 27-29, 31). Petitioner isolated S.F., prohibiting her from going outside to
play or socialize and kept her at home. (Id., p. 25). Petitioner warned S.F. he would kill
her and her mother if she told anyone about the abuse. (Id., p. 27). Petitioner was
sometimes armed with a knife during the assaults and would show it to S.F., threatening
to kill her if she reported the abuse. (Id., pp. 32-33). Petitioner physically abused S.F.’s
mother, almost daily, which increased S.F.’s fear of Petitioner. (Id., pp. at 34, 40). S.F.
did not report the sexual abuse until after her mother divorced Petitioner and he had
moved out of the house. S.F. only reported the abuse in October, 2006, when she was
taken to Harbor Oaks Hospital by the police after fighting with her mother. (Id., pp.
Petitioner testified at trial and denied sexually abusing his step-daughter. (Tr.
7/19/07, p. 14).
Following his conviction, Petitioner’s appellate counsel filed a motion for a
remand to the trial court for an evidentiary hearing pursuant to People v. Ginther, 212
N.W. 2d 922 (Mich. 1973) on his ineffective assistance of counsel. People v. Moore, No.
281046 (Mich. Ct. App. Feb. 27, 2009). The motion was granted and an evidentiary
hearing was held on June 4, 2010; the judge determined that counsel was not
ineffective. Hr’g Tr. 12 June 4, 2010, ECF No. 10-12, 905.
After the remand proceedings, the Court of Appeals affirmed Petitioner’s
convictions and sentences. People v. Moore, No. 281046, 2011 WL 2140361 (Mich. Ct.
App. May 31, 2011). Petitioner’s motion for reconsideration also was denied. People v.
Moore, No. 281046 (Mich. Ct. App. Aug. 19, 2011).
Petitioner subsequently filed an application for leave to appeal the Court of
Appeals’s decision with the Michigan Supreme Court. The Michigan Supreme Court, in
lieu of granting leave to appeal, reversed the Court of Appeals’s judgment in part and
remanded the case to the Macomb County Circuit Court for resentencing, and in all
other respects denied the application. People v. Moore, 806 N.W.2d 306 (Mich. 2011).
Petitioner was re-sentenced on September 12, 2012 to concurrent terms of 136
months to 30 years' imprisonment for each of his convictions.
In 2012, Petitioner filed his habeas petition, which was held in abeyance pending
the resolution of Petitioner’s re-sentencing appeal in the state courts. The court also
administratively closed the case. Moore v. Bergh, No. 12-cv-14679; 2013 WL 2049136
(E.D. Mich. May 14, 2013). Petitioner’s new sentence was affirmed on appeal. People
v. Moore, No. 312909, 2014 WL 953571(Mich. Ct. App. Mar. 11, 2014); leave to appeal
denied at 852 N.W.2d 178 (Mich. 2014).
On June 26, 2015, the court granted Petitioner’s motion to lift the stay and to
amend his habeas petition. In his original and amended petitions, Petitioner seeks relief
on the following grounds:
I. The Petitioner’s trial counsel denied him effective assistance of counsel
when he did not obtain reports concerning the assault charges filed against
the complainant which prompted her to “disclose” the instant allegations to
avoid pretrial detention, and failed to secure expert testimony to respond to
the pseudo-expert testimony of the police officer.
II. This court should permit the [Petitioner] to conduct a post-conviction
discovery of evidence regarding the assault charge brought against the
complainant, the investigative reports concerning the complainant’s
allegations, the CPS records concerning the investigation of the other
children, and the school records in this matter.
III. The trial court committed reversible error in permitting the investigating
officer to testify as an expert witness in this matter to highly contested
propositions regarding the behavior of children of domestic violence, and
regarding patterns of disclosure of teenage sexual abuse victims.
IV. The prosecutor reversibly erred by repeatedly injecting and arguing that
the [Petitioner] had exercised his post-arrest right to remain silent. The fact
that the objections were sustained does not cure the taint of these objections
because there was no cautionary instruction and a jury would have been
incapable of honoring such an instruction.
V. [Petitioner] was denied his constitutional right to due process where the
trial court improperly determined that he was guilty by a preponderance of
the evidence of the untried charges alleged to have occurred before
complainant’s [sic] was thirteen and he must be resentenced.
VI. The law of the case doctrine precluded the prosecutor from arguing and
the trial court from finding [Petitioner]’s minimum sentence guideline range
exceeded 108-180 months. 3
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
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–
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
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.
The court has renumbered Petitioner’s first and second claims from his
amended habeas petition to be his fifth and sixth claims for purposes of judicial clarity.
A decision of a state court is “contrary to” clearly established federal law 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. Williams v. Taylor, 529 U.S. 362, 40506 (2000). An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.”
Id. at 409. 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.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766,
773 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), “a habeas court
must determine what arguments or theories supported or...could have supported, the
state court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision” of the Supreme Court. Id. A habeas petitioner should be denied relief as long
as it is within the “realm of possibility” that fairminded jurists could find the state court
decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
A. Claim # 1. The ineffective assistance of counsel claims.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, Petitioner must satisfy a two prong test. First, he must
demonstrate that, considering all of the circumstances, counsel’s performance was so
deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing,
Petitioner must overcome a strong presumption that counsel’s behavior lies within the
wide range of reasonable professional assistance. Id. In other words, Petitioner must
overcome the presumption that, under the circumstances, the challenged action might
be sound trial strategy. Strickland, 466 U.S. at 689. Second, Petitioner must show that
such performance prejudiced his defense. Id. To demonstrate prejudice, he must show
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
“Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different result
must be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th
Cir. 2011) (quoting Harrington, 562 U.S. at 112). The Supreme Court’s holding in
Strickland places the burden on the defendant who raises a claim of ineffective
assistance of counsel, and not the state, to show a reasonable probability that the result
of the proceeding would have been different, but for counsel’s allegedly deficient
performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable-a substantially higher threshold.’”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550
U.S. 465, 473 (2007)). “The pivotal question is whether the state court’s application of
the Strickland standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard.” Harrington v. Richter,
562 U.S. at 101. Indeed, “because the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541
U.S. at 664). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought by a habeas petitioner. Id. This means
that on habeas review of a state court conviction, “[A] state court must be granted a
deference and latitude that are not in operation when the case involves review under
the Strickland standard itself.”Harrington, 562 U.S. at 101.
Petitioner initially appears to argue that he was constructively denied the
assistance of counsel because his trial attorney failed to subject the prosecutor’s case
to “meaningful adversarial testing.”
Where defense counsel entirely fails to subject the prosecution’s case to
“meaningful adversarial testing,” there has been a constructive denial of counsel, and a
defendant need not make a showing of prejudice to establish ineffective assistance of
counsel. Moss v. Hofbauer, 286 F. 3d 851, 860 (6th Cir. 2002)(quoting United States v.
Cronic, 466 U.S. 648, 659 (1984)). However, in order for a presumption of prejudice to
arise based on an attorney’s failure to test the prosecutor’s case —such that reversal
based on ineffective assistance of counsel is warranted with no inquiry into prejudice—
the attorney’s failure to test the prosecutor’s case “must be complete.” Bell v. Cone, 535
U.S. 685, 697 (2002).
Counsel’s alleged errors here came nowhere close to “constructive denial of
counsel.” Counsel actively represented Petitioner at his trial. Moss, 286 F. 3d at 860-62.
Petitioner’s counsel actively participated in jury voir dire. (Tr. 7/17/07, pp. 11-12, 31-47,
50, 53). Petitioner’s counsel made an opening statement. (Id., pp. 73-81). Counsel
extensively cross-examined the prosecution’s witnesses. (Tr. 7/17/07, pp. 118-60, Tr.
7/18/07, pp. 4-11, 47-80, 84-87, 89, 120-39, 144-46). Counsel made numerous
objections. (Tr. 7/17/07, pp. 3-4, 104, 110, 162, 164, 167-69; Tr. 7/18/07, pp. 32, 38, 83,
92-95, 97, 102-104, 106-07, 109, 113, 116, 120, 140). Counsel questioned Petitioner
on the witness stand. (Tr. 7/18/07, pp. 149-74, Tr. 7/19/07, pp. 3-17). Counsel made an
extensive closing argument. (Tr. 7/19/07, pp. 58-73).
The Cronic presumption “applies only where defense counsel completely or
entirely fails to oppose the prosecution throughout the guilt or penalty phase as a
whole.” Benge v. Johnson, 474 F. 3d 236, 247 (6th Cir. 2007)(citing Bell, 535 U.S. at
697). In this case, counsel’s alleged failures do not approach a “complete” failure to
provide a defense. The presumption of prejudice therefore does not apply and
Petitioner would be required to show that he was actually prejudiced by counsel’s
alleged omissions in order to obtain habeas relief. Id.
Petitioner first contends that trial counsel was ineffective for failing to obtain
records of the victim’s arrest for assault and her psychological records from Harbor
Oaks Hospital. Petitioner argues that this evidence would have impeached the victim’s
credibility and established a motive for her to fabricate the charges against Petitioner
because it was only after the victim was arrested for the assault charge against her
mother and taken to Harbor Oaks that she disclosed the sexual abuse.
The Michigan Court of Appeals rejected petitioner’s claim:
We note that there is no evidence that the victim was arrested for assaulting
her mother, as asserted by defendant. The officer in charge, Michael
Gagnon, testified that when the case was referred to him it was for
incorrigibility, “a status offense, not a criminal offense.” The victim’s mother
never testified regarding an assault complaint and, in any case, never went
forward with any sort of complaint after the victim’s disclosure. There is no
evidence that there was a record of an assault charge for defense counsel
Much of the Ginther hearing involved questioning defense counsel regarding
why he did not seek to obtain the records of the victim’s psychological
evaluation. Defense counsel testified that he did not seek to obtain the
records because they were privileged. He also never sought to have the
court make an in camera inspection of the records under MCR 6.201(C)(2).
On cross-examination, defense counsel stated that he did not have a
“good-faith belief, grounded in articulable fact, that there [was] a reasonable
probability” that the records would “contain material information necessary
to the offense,” as required for a motion under MCR 6.201(C)(2).
The trial court obtained the records and inspected them. The court
concluded that it was a mistake for defense counsel not to at least make a
motion under MCR 6.201(C)(2) to have the court inspect the records.
Nevertheless, after reviewing the records, the court concluded that there was
no discussion in them about the sexual abuse. Instead, the court noted, they
were merely “superficial records,” containing a therapist’s description of “[the
victim’s] immediate condition.” The court further stated there was nothing
“relevant or probative” in the records.
On the facts of this case, we cannot conclude that defense counsel
performed deficiently by failing to obtain the records and ascertain whether
they would be beneficial to the defense. Moreover, even if counsel’s
performance in this regard could be characterized as deficient, the records
were in fact unsupportive, and there is accordingly no basis from which to
conclude that the outcome would have been different if counsel had obtained
and reviewed them.
People v. Moore, 2011 WL 2140361, at * 3 (internal citation omitted).
Petitioner is not entitled to relief on his claim because there is no evidence that
the victim was arrested for assault or that the psychiatric records contained any
references to the sexual abuse charges. Conclusory allegations of ineffective
assistance of counsel, without any evidentiary support, do not provide a basis for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Moreover, defense counsel extensively cross-examined the victim and the other
witnesses in this case and brought out a wealth of information to impeach the victim’s
credibility and to support the defense theory that the victim fabricated these charges.
Counsel elicited testimony from Anitra Moore, Petitioner’s ex-wife and S.F.’s mother,
that Ms. Moore had been charged with the crime of assault with intent to commit murder
in 2005, for shooting at Petitioner, although the charge was dismissed when Petitioner
failed to appear in court. S.F. admitted that this made her angry against Petitioner. (Tr.
7/17/07, pp. 118-19, Tr. 7/18/07, pp. 75-78). Ms. Moore admitted that she called the
police to her home after S.F. had gotten angry and thrown lotion and food all over the
basement. Ms. Moore indicated that the police offered to file an incorrigibility charge, a
juvenile status offense, against S.F. Ms. Moore testified that the police took S.F. from
their home to Harbor Oaks Hospital for a psychiatric evaluation, and that S.F. was
crying during the initial intake. (Tr. 7/17/07, pp. 130-40). Ms. Moore admitted that S.F.
never told her about the sexual abuse allegations or being threatened by Petitioner with
a knife until she was hospitalized. (Id., pp. 141, 146). Ms. Moore testified that although
Petitioner was no longer living with them in 2005 and the two were seeking a divorce,
S.F. did not tell her at that point about the abuse allegations. (Id., pp. 158-59).
S.F. admitted on cross-examination that she never liked Petitioner and would tell
him that he was not her father. (Tr. 7/18/07, pp. 47, 52-53). S.F. admitted that she had
been kicked out of school twice. (Id., pp. 50-51). Although acknowledging that she told
her uncles about the fights between Petitioner and her mother, S.F. admitted she never
informed them about the sexual abuse. (Id., pp. 53-54, 86-87). S.F. admitted that the
police took her to Harbor Oaks in handcuffs because she had been disrespecful to her
mother. S.F. admitted to being scared. (Id., pp. 65-69). S.F. was confronted with
several inconsistencies between her trial testimony and her preliminary examination
testimony concerning the details of the assaults. (Id., pp. 65, 74-75). S.F. never told her
mother about the assaults even after her mother and Petitioner had divorced and he
was no longer living with them. (Id., pp.76-78).
Petitioner was not prejudiced by counsel’s failure to introduce S.F.’s
psychological records or any additional arrest records because such evidence was
cumulative of other evidence and witnesses presented at trial in support of Petitioner’s
claim that the victim had falsely accused Petitioner of sexually assaulting her. Wong,
558 U.S. at 22-23; see also United States v. Pierce, 62 F. 3d 818, 833 (6th Cir. 1995).
In this case, the jury had significant evidence presented to it that the victim had delayed
reporting the alleged abuse, that the police had been called to her house because the
victim had created a disturbance, that the police had taken her to a psychiatric hospital,
that these were motives for the victim to fabricate sexual assault charges against
Petitioner, and inconsistencies in her testimony. Because the jury was “well
acquainted” with evidence that would have supported Petitioner’s claim that the victim
fabricated these charges, additional evidence in support of Petitioner’s defense “would
have offered an insignificant benefit, if any at all.” Wong, 558 U.S. at 23. Petitioner has
failed to overcome the presumption that counsel’s decision not to present additional
evidence concerning the victim’s motive to fabricate a sexual assault charge against
Petitioner was sound trial strategy. See Robinson v. Lafler, 643 F. Supp. 2d 934, 939
(W.D. Mich. 2009) (finding defense counsel was not ineffective in failing to call
additional witnesses to testify about victim’s motive to lie; decision was reasonable and
within the range of professionally competent assistance.).
Petitioner next claims that trial counsel was ineffective for failing to call an expert
witness to testify on the issues of delayed disclosure and false disclosure of sexual
abuse allegations, particularly after Detective Michael Gagnon testified regarding his
experiences with child disclosure of sexual abuse.
The Michigan Court of Appeals discussed at great length Petitioner’s claim
before rejecting it:
At trial, Gagnon testified that, in his experience, “young people who are
victims of any type of sexual assault ... have an easier time repressing the
memories than adults do.” He repeated this point three times. Defense
counsel did not object to this testimony. Gagnon further testified that, in his
experience, children who live in an abusive home are “very shy and very
reserved.” He further stated that children “don’t remember details on things.”
Defense counsel objected to this testimony on the ground that Gagnon was
not an expert. The trial court overruled the objection, stating, “He can tell us
his experience.” On cross-examination, with respect to this testimony,
defense counsel asked Gagnon, “Does the truth ever change?” Gagnon
responded, “The truth doesn’t change. People’s interpretation of the truth
could change.” These appear to be the only questions defense counsel
asked Gagnon that were directly related to this issue.
At the Ginther hearing, a forensic psychologist, Dr. Terence Campbell,
testified as an expert that the victim demonstrated multiple warning signs for
false disclosure, including viewing the accused as an enemy, delayed
disclosure, and the possibility of seeking to avert attention away from her
own conduct. He opined that this behavior may have indicated that the victim
was affected by oppositional defiant disorder. Campbell also testified that
Gagnon’s testimony was misleading to the jury when he suggested that it is
common for children or adolescents to repress memories of sexual abuse
and to be shy and reserved. Campbell opined that current research on this
issue demonstrates that this is not an accurate portrayal of child victims of
In his testimony at the Ginther hearing, defense counsel acknowledged that
the issue of the victim’s delayed disclosure was a relevant issue in this case.
He further acknowledged that the victim demonstrated multiple signs of
possible false disclosure. He testified that he did not consult with an expert
because it is “not [his] way of practice” for criminal sexual conduct cases. He
explained that this is because the case hinged primarily on a question of
credibility between the victim and the defendant and that an expert does not
“help attack the credibility of the witness.”
At trial, defense counsel questioned the victim’s mother about the victim’s
delayed disclosure. The mother testified that the victim told her that she did
not disclose earlier because she was too scared. Defense counsel also
asked the victim repeatedly regarding why she failed to disclose earlier,
eliciting testimony that she was afraid of defendant. He also elicited
testimony that she had always hated defendant.
In his closing argument, defense counsel argued that the victim had ample
opportunity to disclose the sexual abuse after defendant had left the house
and, therefore, after her fear of him should have lessened. Counsel further
argued that the victim’s disclosure to the psychological evaluator gave the
victim a good opportunity to extract herself from a bad situation by refocusing
the attention on someone else. He further noted that the victim expressed
a long record of hatred toward defendant.
Defense counsel’s only explanation for why he did not consult an expert was
that it was “not his practice” to do so in a case that hinges primarily on
credibility. In other words, counsel’s decision in this regard does not appear
to have been strategic in nature. Nevertheless, we are unable to conclude
that there is a reasonable probability that the outcome would have been
different if defense counsel had consulted and retained an expert. Defense
counsel, himself, presented much of Campbell’s logic in his own closing
argument. Thus, even if Campbell had testified for the defense at trial, he
would have merely lent some additional weight to the ideas that defense
counsel had already presented regarding the victim’s credibility. Accordingly,
we simply cannot conclude that any error in this regard was outcome
People v. Moore, 2011 WL 2140361, at *4–5 (internal citation omitted).
Although Petitioner’s counsel did not call an expert witness on delayed or false
disclosures of sexual abuse, trial counsel cross-examined the victim and her mother
extensively about S.F.’s failure to promptly disclose the sexual abuse allegations, even
after Ms. Moore and Petitioner had gotten a divorce and he was no longer living with
them. Counsel also questioned the victim about her hatred for Petitioner. Counsel
elicited from both the victim and her mother the fact that the sexual abuse disclosures
were made only after the victim was taken in handcuffs by the police to a psychiatric
hospital after the victim created a disturbance at home. Counsel argued in closing
argument the victim reported the sexual abuse two and a half years after it happened.
Counsel noted that although the victim reported fights between her mother and
Petitioner to her uncles, she never mentioned the sexual abuse. Counsel argued that
the victim had many opportunities to report the sexual abuse after Petitioner no longer
lived with them, but failed to do so. Counsel also argued that the victim’s disclosure to
the psychological evaluator may have been motivated by the victim attempting to
refocus attention on Petitioner to escape from her own bad situation. (Tr. 7/19/07, pp.
58-73). Moreover, contrary to the Michigan Court of Appeals’ findings, defense counsel
did appear to challenge Detective Gagnon’s opinion in several ways. On crossexamination, counsel obtained an admission from Detective Gagnon that he was
assigned to the Youth Bureau and not to a division assigned to specifically investigate
sex offenses. Gagnon further admitted that he had been involved in investigating only
about 20 criminal sexual conduct cases involving children. (Tr. 7/18/07, pp. 121-22,
136-37). Gagnon further admitted that he did not tape the interview with the victim, nor
did he ask her questions, but simply asked the victim to write down in a narrative
fashion what happened. (Id., pp. 130-31).
The Michigan Court of Appeals reasonably determined that Petitioner was not
prejudiced by counsel’s failure to present expert psychiatric testimony on delayed or
false sexual abuse disclosures in light of the fact that trial counsel subjected the victim
and her mother to a lengthy cross-examination regarding the victim’s motives, her recall
of the sexual abuse, and the consistency, reliability, and timing of her disclosures. See
Piontek v. Palmer, 546 Fed. App'x. 543, 551 (6th Cir. 2013). Accordingly, Petitioner is
not entitled to relief on his claim. Id.
B. Claim # 2. The discovery claim.
In his second claim, Petitioner argues that the state trial court should have
permitted him to conduct post-conviction discovery concerning the victim’s arrest report,
her psychological records, the victim’s school records, and any child protective services
investigations regarding the victim’s other siblings.
To the extent that Petitioner alleges that his rights were violated by the trial
court’s refusal to order discovery before conducting the Ginther hearing as part of
Petitioner’s appeal, he is not entitled to relief. There is no federal constitutional right to
an appeal. See Abney v. U. S., 431 U.S. 651, 656 (1977); see also Smith v. Robbins,
528 U.S. 259, 270, n. 5 (2000) (The Constitution does not require states to create
appellate review in criminal cases). The right of appeal, as presently known to exist in
criminal cases, “is purely a creature of statute,” and “in order to exercise that statutory
right, one must come within the terms of the applicable statute” with regards to that right
to appeal. Abney, 431 U.S. at 656. In addition, violations of state law and procedure
which do not infringe specific federal constitutional protections are not cognizable claims
under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Whether the trial
court erred in failing to order discovery before conducting Petitioner’s evidentiary
hearing on his ineffective assistance of counsel claims is a question of state law that
cannot be reviewed in a federal habeas petition. See e.g. Hayes v. Prelesnik, 193 Fed.
App’x. 577, 584 (6th Cir. 2006). Moreover, there is no clearly established Supreme
Court law which recognizes a constitutional right to a state court evidentiary hearing to
develop a claim of ineffective assistance of counsel on appeal. Id. at 585. The trial
court’s refusal to order discovery before conducting the Ginther hearing does not entitle
Petitioner to relief. To the extent that Petitioner asks this court to order discovery of this
information, his request is denied.
Habeas petitioners have no automatic right to discovery. Stanford v. Parker, 266
F. 3d 442, 460 (6th Cir. 2001). A district court has the discretion, under Rule 6 of the
Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, to grant discovery to a petitioner
in a habeas case upon a fact specific showing of good cause, such as if a petitioner
presents specific allegations which give the court reason to conclude that, if fully
developed, the facts may lead the district court to believe that federal habeas relief is
appropriate. See Johnson v. Mitchell, 585 F.3d 923, 934 (6th Cir. 2009); see also Lott v.
Coyle, 261 F.3d 594, 602 (6th Cir. 2001). However, Rule 6 of the Habeas Rules does
not “sanction fishing expeditions based on a petitioner’s conclusory allegations.”
Williams v. Bagley, 380 F. 3d 932, 974 (6th Cir. 2004)(internal quotation omitted). A
habeas petitioner’s conclusory allegations are insufficient to warrant discovery under
Rule 6. Id. Instead, the petitioner must set forth specific allegations of fact. Id.
As mentioned above relative to Petitioner’s ineffective assistance of counsel
claim, his counsel extensively impeached the victim’s credibility and highlighted the
motives for her sexual abuse allegations. Counsel particularly elicited information that
the victim disclosed the sexual abuse only after she had been arrested and investigated
for a possible incorrigibility charge and had been taken to a psychiatric hospital.
Petitioner does no more than to speculate that these additional records would contain
exculpatory information. In light of the extensive impeachment evidence presented in
this case, Petitioner cannot show that he was prejudiced by counsel’s failure to impeach
S.F. with such mental health or school records or any child protective services
investigations. Petitioner is not entitled to discovery of S.F.’s mental health or school
records or any child protective services investigations because Petitioner has failed to
show that the requested discovery could resolve any factual disputes that could entitle
him to relief on his ineffective assistance of counsel claim. Williams, 380 F. 3d at 975.
Petitioner is not entitled to relief on his second claim.
C. Claim # 3. The improper opinion testimony claim.
Petitioner next claims that his right to a fair trial was violated when Detective
Gagnon was permitted to offer opinion testimony regarding various characteristics of
child sex abuse victims without first being qualified as an expert on the subject.
The Michigan Court of Appeals rejected Petitioner’s claim. Although ruling that
the trial court erred in permitting Detective Gagnon to testify without first determining
whether he would be qualified as an expert witness, the Michigan Court of Appeals
concluded that Detective Gagnon would have qualified as an expert witness for the
purpose of testifying about the behavioral tendencies of sex abuse victims because it
was based on his experiences and training as a police officer, in which he had worked
on over 100 similar cases involving both children and adult victims and “had significant
training on issues relating to sexual assault cases, including interviewing child victims.”
People v. Moore, 2011 WL 2140361, at * 6.
Errors in the application of state law, especially rulings regarding the admissibility
of evidence, are usually not questioned by a federal habeas court. Seymour v. Walker,
224 F. 3d 542, 552 (6th Cir. 2000). In addition, federal habeas courts “‘must defer to a
state court’s interpretation of its own rules of evidence and procedure’ when assessing
a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)(quoting Allen v.
Morris, 845 F.2d 610, 614 (6th Cir. 1988)).
The admission of expert testimony in a state trial presents a question of state law
which does not warrant federal habeas relief, unless the evidence violates due process
or some other federal constitutional right. See Keller v. Larkins, 251 F. 3d 408, 419 (3rd
Cir. 2001). Thus, a federal district court cannot grant habeas relief on the admission of
an expert witness’ testimony in the absence of Supreme Court precedent which shows
that the admission of that expert witness’ testimony on a particular subject violates the
federal constitution. See Wilson v. Parker, 515 F.3d 682, 705-06 (6th Cir. 2008). In light
of the deferential standard afforded to state courts under the AEDPA, the trial court’s
decision to permit Detective Gagnon to offer opinion evidence concerning the
behavioral tendencies of child sex abuse victims was not contrary to clearly established
federal law. Petitioner cannot claim habeas relief on this basis. See e.g. Schoenberger
v. Russell, 290 F. 3d 831, 835 (6th Cir. 2002).
D. Claim # 4. The claim involving references to Petitioner’s post-arrest
Petitioner lastly contends that the prosecutor committed misconduct when she
repeatedly mentioned Petitioner’s post-arrest silence.
The Michigan Court of Appeals discussed, and rejected, Petitioner’s claim at
At trial, the prosecutor ventured, or attempted to venture, into this territory
several times. First, the prosecutor asked Gagnon, “[W]ere you able to
speak with [defendant] or get any written statement from [defendant].” Before
Gagnon answered, defense counsel objected and the court sustained the
objection. The prosecutor again asked if Gagnon had received a written
statement and another objection was sustained. Finally, the prosecutor
asked, “Were you ever able to get any other contact from anyone regarding
[this] case, other than [from the victim]?” Gagnon responded that he was not.
Next, the prosecutor asked:
Q. Now, as an officer, is there anything that you are—on a CSC case—that
you need to do to follow up, other than get a statement from the victim, or as
you said, to try to get both sides of the story?
A. Basically, we need to get both sides of the story. It’s–I don’t like working
with one side of the story. I like to talk to both people to see—
Defense counsel again objected and the trial court again sustained the
objection, stating, “I don't want any reference to the two people involved
Lastly, the prosecutor asked defendant on cross-examination, “[D]o you think
it's important to have both side[s] of the story?” She followed up by asking,
“Do you recall the officer coming to talk to you?” Defense counsel objected
and the trial court sustained the objection. Immediately thereafter, the
prosecutor asked defendant, “[D]id you ever take the time yourself ... to get
in touch with [Gagnon]?” The trial court again sustained an objection, ending
the line of questioning.
When the prosecutor’s questioning of Gagnon strayed into a discussion of
defendant’s silence, the questioning was arguably cut off by defense
counsel’s timely objections. Nevertheless, Gagnon did testify, “I don’t like
working with one side of the story,” and also testified that he did not talk to
anyone other than the victim about the case. Therefore, it was likely clear to
the jury that Gagnon was operating without defendant’s “side of the story,”
albeit without any further context.
The prosecutor’s questioning of defendant was more direct. She directly
asked defendant whether he “[got] in touch” with Gagnon regarding this case.
While defendant was prevented from answering the question, there would be
a reasonable inference raised simply from the prosecutor’s question that
defendant had not spoken with Gagnon. This inference would have been
reinforced by the prosecutor’s earlier questioning of Gagnon. The
prosecutor’s questioning in this regard was improper. Nevertheless, we
conclude that this error was harmless beyond a reasonable doubt. The issue
of defendant’s silence was only raised on three separate occasions, two of
which were only a few moments apart, and the questioning of Gagnon was
otherwise properly related to his investigation. Moreover, the prosecutor
never argued that defendant’s silence was in any way indicative of his guilt.
Further, defense counsel’s timely objections prevented answers to most of
the prosecutor’s questions. In short, there is little or no basis for concluding
that the prosecutor’s improper questions were outcome-determinative in this
People v. Moore, 2011 WL 2140361, at * 7 (internal citations omitted).
It is a violation of the Due Process clause of the Fourteenth Amendment for the
prosecution to use a defendant’s post-arrest silence to impeach exculpatory testimony
given by the defendant at trial. Doyle v. Ohio, 426 U.S. 610, 619 (1976); See also
Gravley v. Mills, 87 F. 3d 779, 786 (6th Cir. 1996). However, isolated references to a
defendant’s exercise of his right to remain silent do not deprive a criminal defendant of a
fair trial when the prosecution does not use the defendant’s silence to prove his guilt.
U.S. v. Weinstock, 153 F.3d 272, 280-81 (6th Cir. 1998); See also U.S. v. Robinson,
357 Fed. Appx. 677, 683 (6th Cir. 2009)(both citing Greer v. Miller, 483 U.S. 756
In the present case, although there were several brief and improper references to
Petitioner’s post-Miranda silence, the Michigan Court of Appeals’ decision that there
was no due process violation remains a reasonable application of Supreme Court
precedent, in light of the fact that the references to Petitioner’s post-Miranda silence
were infrequent and the prosecutor never used Petitioner’s silence in her closing
argument to prove his guilt. See e.g. Shaieb v. Burghuis, 499 Fed. App’x. 486, 498–99
(6th Cir. 2012). Petitioner is not entitled to relief on his fourth claim.
E. Claims # 5 and # 6. The sentencing claims.
The court considers Petitioner’s two sentencing claims together for better clarity.
Petitioner first claims that the trial court improperly scored his sentencing guidelines.
Petitioner’s claim under the Michigan Sentencing Guidelines regime that the
state trial court incorrectly scored or calculated his range is not a cognizable claim for
federal habeas review. It is basically a state law claim. See Tironi v. Birkett, 252 Fed.
App’x. 724, 725 (6th Cir. 2007); Howard v. White, 76 Fed. App’x. 52, 53 (6th Cir. 2003).
Petitioner had “ no state-created interest in having the Michigan Sentencing Guidelines
applied rigidly in determining his sentence.” See Mitchell v. Vasbinder, 644 F. Supp. 2d
846, 867 (E.D. Mich. 2009). Petitioner thus “had no federal constitutional right to be
sentenced within Michigan’s guideline minimum sentence recommendations.” Doyle v.
Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any error by the trial court in
calculating his guideline score would not merit habeas relief. Id. Petitioner’s claim that
the state trial court improperly departed above the correct sentencing guidelines range
would thus not entitle him to habeas relief, because such a departure does not violate
any of Petitioner’s federal due process rights. Austin v. Jackson, 213 F. 3d 298, 301
(6th Cir. 2000).
Petitioner further appears to argue that the trial court judge violated his Sixth
Amendment right to a trial by jury by using factors that had not been submitted to a jury
and proven beyond a reasonable doubt or admitted to by Petitioner when scoring these
guidelines variables under the Michigan Sentencing Guidelines.4
On June 17, 2013, the United States Supreme Court ruled that any fact that
increases the mandatory minimum sentence for a crime is an element of the criminal
offense that must be proven beyond a reasonable doubt. See Alleyne v. United States,
133 S. Ct. 2151, 2155 ( 2013). Alleyne is an extension of the Supreme Court’s holdings
in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S.
296 (2004), in which the U.S. Supreme Court held that any fact that increases or
enhances a penalty for a crime beyond the prescribed statutory maximum for the
offense must be submitted to the jury and proven beyond a reasonable doubt. In
reaching this conclusion, the Supreme Court overruled Harris v. United States, 536 U.S.
545 (2002), in which the Supreme Court had held that only factors that increase the
maximum, as opposed to the minimum, sentence must be proven beyond a reasonable
doubt to a factfinder. Alleyne, 133 S. Ct. at 2157-58. The Supreme Court, however,
Under Michigan law, only the minimum sentence must presumptively be set
within the appropriate sentencing guidelines range. See People v. Babcock, 666
N.W.2d 231, 237, n. 7 (Mich. 2003)(citing Mich. Comp. Laws § 769.34(2)). The
maximum sentence is not determined by the trial judge but is set by law. See People v.
Claypool, 684 N.W. 2d 278, 286, n. 14 (Mich. 2004)(citing Mich. Comp. Laws § 769.8).
indicated that its decision did not mean that every fact influencing judicial discretion in
sentencing must be proven to a jury beyond a reasonable doubt. Id. at 2163.
Alleyne is inapplicable here because “Alleyne dealt with judge-found facts that
raised the mandatory minimum sentence under a statute, not judge-found facts that
trigger an increased guidelines range,” which is what happened to Petitioner. See
United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); See also United States v.
James, 575 Fed. App’x. 588, 595 (6th Cir. 2014)(collecting cases and noting that at
least four post-Alleyne unanimous panels of the Sixth Circuit have “taken for granted
that the rule of Alleyne applies only to mandatory minimum sentences.”); Saccoccia v.
Farley, 573 Fed. App’x. 483, 485 (6th Cir. 2014)(“But Alleyne held only that ‘facts that
increase a mandatory statutory minimum [are] part of the substantive offense.’...It said
nothing about guidelines sentencing factors....”). The Sixth Circuit, in fact, has ruled
that Alleyne did not decide the question whether judicial factfinding under Michigan’s
indeterminate sentencing scheme violates the Sixth Amendment. See Kittka v. Franks,
539 Fed. App’x. 668, 673 (6th Cir. 2013).
The court is aware that the Michigan Supreme Court recently relied on the
Alleyne decision in holding that Michigan’s Sentencing Guidelines scheme violates the
Sixth Amendment right to a jury trial. See People v. Lockridge, 870 N.W.2d 502 (Mich.
However, Petitioner cannot rely on Lockridge to obtain relief with this court. The
AEDPA standard of review found in 28 U.S.C. § 2254 (d)(1) prohibits the use of lower
court decisions in determining whether the state court decision is contrary to, or an
unreasonable application of, clearly established federal law. See Miller v. Straub, 299 F.
3d 570, 578-579 (6th Cir. 2002). “The Michigan Supreme Court’s decision in Lockridge
does not render the result ‘clearly established’ for purposes of habeas review.” Haller v.
Campbell, No. 1:16-CV-206, 2016 WL 1068744, at * 5 (W.D. Mich. Mar. 18, 2016). In
light of the fact that the Sixth Circuit has ruled that Alleyne does not apply to sentencing
guidelines factors, reasonable jurists at a minimum could disagree about whether
Alleyne applies to the calculation of Michigan’s minimum sentencing guidelines. Id. at *
6. “Alleyne therefore did not clearly establish the unconstitutionality of the Michigan
sentencing scheme and cannot form the basis for habeas corpus relief.” Id.; See also
Perez v. Rivard, No. 2:14-CV-12326, 2015 WL 3620426, at * 12 (E.D. Mich. June 9,
2015)(petitioner not entitled to habeas relief on claim that his sentencing guidelines
scored in violation of Alleyne). Petitioner is not entitled to relief on his fifth claim.
Petitioner in his sixth claim argues that the trial court on re-sentencing should
have applied the law-of-the-case doctrine to determine the appropriate sentencing
guidelines range. “As a general matter, a habeas petitioner's claim that the trial court
violated state law when sentencing him is not cognizable in habeas corpus
proceedings.” Bridinger v. Berghuis, 429 F. Supp. 2d 903, 908 (E.D. Mich.,2006). A
federal court cannot review a state court’s alleged failure to adhere to its own
sentencing procedures. See e.g. Draughn v. Jabe, 803 F. Supp. 70, 81 (E.D. Mich.
1992). To the extent that Petitioner challenges the Michigan Courts’ interpretation of
the scope of the remand order, this is also non-cognizable on habeas relief. See
Norwood v. Bell, No. 06-429, 1009 WL 1525989, * 7 (W.D. Mich. June 1, 2009).
Petitioner is not entitled to relief on his sixth claim.
F. A certificate of appealability.
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 right.” 28 U.S.C. § 2253(c)(2). When a court denies a habeas claim on
the merits, the substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court's assessment of the 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.
at 327. 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 merits of the claim. Id. at
Having considered the matter, the court concludes that Petitioner has not made a
substantial showing of the denial of a constitutional right as to his habeas claims.
Accordingly, the Court will deny Petitioner a certificate of appealability.
The standard for granting an application for leave to proceed in forma pauperis is
a lower standard than the standard for certificates of appealability. See Foster v.
Ludwick, 208 F.Supp.2d 750, 764 (E.D.Mich.2002). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the denial
of a constitutional right, a court may grant leave to proceed in forma pauperis if it finds
that an appeal is being taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R.App. P.
24(a); Foster, 208 F.Supp.2d at 764–65. “Good faith” requires a showing that the
issues raised are not frivolous; it does not require a showing of probable success on the
merits. Id. at 765. Although this is a decidedly lower standard, the court will
nonetheless deny leave to proceed in forma pauperis on appeal because the appeal
would be frivolous for the reasons stated above.
IT IS ORDERED that Petitioner Dante DeShawn Moore’s petition for writ of
habeas corpus [Dkt. # 1] and the amended petition for writ of habeas corpus [Dkt. # 14]
IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: October 14, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 14, 2016, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
S:\Cleland\JUDGE'S DESK\C3 ORDERS\12-14679.MOORE.2254.db.RHC.wpd
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