Moore v. Burt
OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 2:15-CV-10452
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
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
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.
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–
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.
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, 405-06 (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. “[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)). Therefore, in order to
obtain habeas relief in federal court, a state prisoner is required to show that the state
court’s rejection of his or her claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103. 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 double jeopardy claim.
Petitioner first argues that his retrial was barred by double jeopardy because the
prosecutor goaded him into moving for a mistrial by intentionally introducing prejudicial
evidence that Mr. Sobczak, petitioner’s alibi witness, was a sexual offender.
The Michigan Court of Appeals rejected petitioner’s claim as follows:
At defendant’s first trial, Sobczak testified that he had lived with defendant
on Keystone Street for three years and was with defendant at the time of the
shooting. On cross-examination, the following exchange occurred:
Q. Mr. Sobczak, you’ve indicated that you’ve lived on Keystone for about
three years, correct, as of August 1st of ’09?
Q. Did you fail to list this as a home address as a sex offender?
Q. Sir, you are a registered sex offender with the State of Ohio?
A. Yes. [Emphasis added.]
Defense counsel objected, arguing that the prosecutor violated MRE 609 by
using a sex offense to impeach Sobczak’s credibility. Defense counsel
maintained that a mistrial was the only remedy to cure the prejudice, and
defendant consented to the mistrial on the record. Among its reasons for
granting a mistrial, the trial court was concerned that it could not “unring the
bell ... regarding a violation of Michigan Rule of Evidence 609, the
impeachment of the witness, Mr. Sobczak.” Subsequently, the trial court
denied defendant’s motion to dismiss, finding that defendant consented to
the mistrial and that the mistrial was not based on prosecutorial misconduct.
Before defendant’s second trial, the trial court ruled that evidence regarding
Sobczak’s legal obligation to register his residence and his failure to identify
defendant’s address as his registered residence was both relevant and
admissible under the circumstances, but that his associated sex-offender
status was not.1 But contrary to defendant’s argument, the objective facts
and circumstances do not support a finding that the prosecutor’s questions
at the first trial were intended to goad defendant into moving for a mistrial.
The prosecutor had evidence that the sex offender registry showed two
listed addresses for Sobczak during the relevant period, neither of which
was defendant’s address on Keystone Street. This evidence was relevant
to impeach Sobczak’s trial testimony that he resided with defendant on the
day of the shooting. MRE 401. The prosecutor made logical arguments to
support her position, her arguments were not baseless, and she submitted
caselaw to the trial court that she believed supported her position that the
evidence was admissible. “[A] prosecutor’s good-faith effort to admit
evidence does not constitute misconduct.” People v. Dobek, 274 Mich.App
58, 72; 732 NW2d 546 (2007). Although the trial court ultimately ruled at the
first trial that the evidence disclosing Sobczak’s status as a sex offender,
which was the basis for Sobczak’s legal duty to register his address, was
unduly prejudicial, defendant has not demonstrated that the prosecutor
engaged in the line of questioning to incite defendant into moving for a
Moreover, the objective circumstances do not show that the prosecution
gained any advantage by having a mistrial declared and proceeding to a
second trial, and defendant has failed to provide any reason why the
prosecutor would have been motivated to obtain a mistrial. To the contrary,
defendant moved for a mistrial on the seventh day of trial, after the
We note that the prosecutor did not ask Sobczak any questions regarding his duty to register his
home address at the second trial. (Footnote original).
prosecutor had rested its case, and there is no indication that the
prosecutor’s case was going poorly. Moreover, the prosecutor vehemently
argued against the mistrial motion. The prosecutor encouraged the trial
court to provide a cautionary instruction to cure any perceived prejudice,
which she claimed could properly guide the jury in evaluating the evidence,
and she repeatedly disagreed with defendant’s position that no curative
instruction could remedy the situation. Under these circumstances, the
record does not support defendant’s claim that the prosecutor intentionally
engaged in conduct to provoke defendant into moving for a mistrial. The trial
court did not err in denying defendant’s motion to dismiss on double
People v. Moore, 2011 WL 6268206, at *1–3
“The Double Jeopardy Clause . . . protect[s] a defendant against governmental
actions intended to provoke mistrial requests . . . .” United States v. Dinitz, 424 U.S. 600,
611 (1976). In Oregon v. Kennedy, the Supreme Court clarified that Dinitz bars retrial
“[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into
moving for a mistrial. . . .” 456 U.S. 667, 676 (1982)(emphasis added). The Supreme
Court has never expanded the rule of Dinitz and Kennedy to cover cases in which “the
prosecutorial misconduct in the first trial aimed only to secure a conviction.” Aceval v.
MacLaren, 578 F.App’x 480, 483 (6th Cir. 2014).
“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. Parker, 344 F.3d
487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will be held to violate a
criminal defendant’s constitutional rights only if they “‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Prosecutorial misconduct will thus form the basis for habeas relief only if the conduct was
so egregious as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas
relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state
court’s rejection of his prosecutorial misconduct claim “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Parker v. Matthews, 132 S. Ct. 2148, 2155
(2012)(quoting Harrington, 562 U.S. at 103).
During the first trial, the prosecutor produced evidence that the sex offender registry
had two addresses listed for Sobczak. Petitioner’s address was not one of the listed
addresses. This evidence was relevant to impeach Sobczak’s trial testimony that he
resided with petitioner on the day of the shooting.
As a result of the testimony pertaining to the sex offender registry, petitioner moved
for a mistrial on the seventh day of trial, after the prosecution had rested its case, and
without any indication that the case was going poorly. The prosecutor argued vehemently
against petitioner’s motion for a mistrial. The prosecutor also argued for a curative
instruction, which petitioner opposed. There was no indication that the prosecutor asked
Mr. Sobczak about the sex offender registry to goad petitioner into requesting a mistrial.
In rejecting petitioner’s double jeopardy claim, the Michigan Court of Appeals found that
the questions posed by the prosecutor to Sobczak were relevant to establishing that
Sobczak was not residing with petitioner at the time of the shooting. A prosecutor does
not commit misconduct by asking witnesses relevant questions. See Slagle v. Bagley, 457
F.3d 501, 518 (6th Cir. 2006). The Michigan Court of Appeals further found that petitioner
“failed to provide any reason why the prosecutor would have been motivated to obtain a
mistrial.” Moore, 2011 WL 6268206, at *3.
The Michigan Court of Appeals reasonably determined that, “A prosecutor’s
good-faith effort to admit evidence does not constitute misconduct.” Moore, 2011 WL
6268206, at *2. accord Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). “The
prosecutor made logical arguments to support her position, her arguments were not
baseless, and she submitted caselaw to the trial court that she believed supported her
position that the evidence was admissible.” Moore, 2011 WL 628206, at *2. Petitioner
demanded a mistrial over objections made by the prosecutor. The trial court did not err
by refusing to dismiss petitioner’s case based on double jeopardy grounds when petitioner
demanded a mistrial based on evidence offered by the prosecutor which was relevant to
impeach witness testimony. Petitioner is not entitled to relief on his first claim.
B. Claim # 2. The Confrontation Clause claim.
Petitioner next contends that he is entitled to habeas relief due to a violation of his
right to confrontation by the admission into evidence of a statement made by a police
officer who did not testify at trial.
Respondent argues that petitioner waived this claim when he “specifically
acquiesced to the prosecutor playing the DVD of [petitioner]’s police interview as rebuttal
evidence,”“thereby extinguishing any error.” Moore, 2011 WL 6268206, at *4.
Waiver is an “‘intentional relinquishment of a known right.’” United States v. Olano,
507 U.S. 725, 733 (1993)(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A
criminal defendant who has waived his rights “may not then seek appellate review of
claimed deprivation of those rights, for his waiver has extinguished any error.” United
States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996)(citing Olano, 507 U.S. at 733-34). See
also Shahideh v. McKee, 488 F.App’x 963, 965 (6th Cir. 2012)(“waiver is a recognized,
independent and adequate state law ground for refusing to review alleged trial errors”).
The right to confrontation may be waived, including by a failure to object to the “offending
evidence.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314, n. 3 (2009). Because
defense counsel stipulated to the admission of this evidence, petitioner has waived review
of his Confrontation Clause claim. See United States v. Chun Ya Cheung, 350 F.App’x 19,
21-22 (6th Cir. 2009). Moreover, a defendant in a criminal case cannot complain of error
which he himself has invited. Shields v. United States, 273 U.S. 583, 586 (1927). When
a petitioner invites an error in the trial court, he is precluded from seeking habeas corpus
relief for that error. See Fields v. Bagley, 275 F.3d 478, 486 (6th Cir. 2001). By agreeing
to the admission of statements made by the police officer during a custodial interrogation,
petitioner is precluded from seeking habeas relief on his second claim.
C. Claim # 3. The perjury/actual innocence claim.
Petitioner contends that he is entitled to habeas relief because he claims that the
State’s star witness, Arkena Anderson, posted an admission on Facebook that her trial
testimony was perjured.
In his motion for relief from judgment, petitioner presented the trial court with “new
evidence” in the form of a printout of a conversation on Facebook between a user
purporting to be Arkena Anderson and a woman identified as “Ily Taylor Faith.” In the
conversation, “Faith” accuses Ms. Anderson of lying and setting up her cousin, who
purportedly was petitioner. In the exchange, Ms. Anderson denies it, saying that she
never said that petitioner killed her uncle, only that she said she saw petitioner with a gun.
To prevail on a claim that a conviction was obtained by evidence that the
government knew or should have known to be false, a defendant must show that the
statements were actually false, that the statements were material, and that the prosecutor
knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). However, a habeas
petitioner must show that a witness’ statement was “indisputably false,” rather than
misleading, to establish a claim of prosecutorial misconduct or a denial of due process
based on the knowing use of false or perjured testimony. Byrd v. Collins, 209 F.3d 486,
517-18 (6th Cir. 2000).
Mere inconsistencies in a witness’ testimony do not establish the knowing use of
false testimony by the prosecutor. Coe, 161 F.3d at 343. The fact that a witness
contradicts himself or herself or changes his or her story also does not establish perjury.
Malcum v. Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003)(citing Monroe v. Smith, 197
F. Supp. 2d 753, 762 (E.D. Mich. 2001)). A habeas petition should be granted if perjury
by a government witness undermines the confidence in the outcome of the trial. Id.
Assuming that Ms. Anderson was the person posting on Facebook, petitioner failed
to show that Ms. Anderson committed perjury. At trial, Anderson never testified that she
saw petitioner shoot the victim, only that she saw petitioner with a gun following Rayford’s
shooting and that she heard petitioner make incriminating statements. Ms. Anderson’s
trial testimony is consistent with her alleged comments on Facebook.
There are only two inconsistencies. First, in the Facebook conversation, Anderson
claims that she “never said” petitioner murdered the victim, but at trial she testified that she
identified petitioner as the shooter to Detroit Police Sergeant Gary Diaz. (Tr. 5/18/10, p.
at 86). Second, in the Facebook conversation, “Anderson” said, “ I [sic] told them he didnt
[sic] do it[.]”
Mere inconsistencies in a witness’ testimony do not establish perjury nor does the
fact that the witness changes his or her story. Moreover, the Facebook conversation took
place after petitioner’s trial. Petitioner has not shown that the prosecutor knowingly elicited
false testimony, or allowed known false testimony to go uncorrected. The Facebook
conversation does not establish that the prosecutor knew of any untruthful statements
made by Anderson. Petitioner is not entitled to habeas relief on his perjury claim, because
he has failed to show that the prosecutor knew that Ms. Anderson testified falsely on this
matter. See Rosencrantz v. Lafler, 568 F.3d 577, 587 (6th Cir. 2009).
Petitioner’s related actual innocence claim based on newly discovered evidence is
unconnected to any colorable claim of a violation of his rights under the Constitution.
“Claims of actual innocence based on newly discovered evidence have never been held
to state a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390,
400 (1993). Petitioner has not shown that the prosecutor provided perjured testimony or
failed to correct perjured testimony offered at trial. Petitioner is not entitled to relief on his
actual innocence/perjury claim.
The Court will deny the petition for a writ of habeas corpus with prejudice. The
Court will also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or agree that, the petition
should have been resolved in a different manner, or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). “The district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875
(E.D. Mich. 2010).
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich.
2001). The Court will also deny petitioner leave to appeal in forma pauperis, because the
appeal would be frivolous. Id.
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be DENIED leave to appeal in forma
s/ Nancy G. Edmunds
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: June 29, 2017
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