Moore v. Smith

Filing 3

ORDER DISMISSING 1 Petition for Writ of Habeas Corpus filed by Leonarr Moore; Declining to issue a Certificate of Appealability, and Denying Leave to Appeal in forma pauperis. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEONARR MOORE,
Petitioner,
v.

CASE NO. 11-CV-14319
HONORABLE JOHN CORBETT O’MEARA

WILLIE O. SMITH,
Respondent.
_________________________/
ORDER DISMISSING THE HABEAS CORPUS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Leonarr Moore has filed a pro se habeas corpus petition challenging
his Saginaw County convictions for drug and firearm offenses. He alleges that his
convictions were based on evidence that was obtained through an unconstitutional
search and seizure. Because this Fourth Amendment claim is not cognizable on federal
habeas corpus review, the petition must be dismissed.
I. Background
On March 9, 2007, the police executed a search warrant at an apartment building
on Birch Street in Saginaw, Michigan. After going in apartment one, which was located
on the first floor of the building, the police entered a different door to the building and
forced their way into apartment three, which was located on the second floor of the
building. Although the police lacked a warrant to search apartment three, they did a
protective “sweep” of the area and observed marijuana, cocaine, a scale with cocaine

residue, and a shotgun in plain view. They arrested Petitioner, who resided in
apartment three, but when they finished their “sweep,” they realized that the second
floor was a separate apartment because there was no access to the second floor from
apartment one on the first floor. They stopped the search, obtained a warrant that
included apartment three as a place to be searched, and then resumed their search of
the second floor. During this subsequent search, incriminating evidence was seized.
Petitioner was tried in Saginaw County Circuit Court. Following a jury trial, he
was found him guilty of: possession of less than twenty-five grams of cocaine, MICH.
COMP. LAWS § 333.7403(2)(a)(v); possession of marijuana with intent to deliver, MICH.
COMP. LAWS § 333.7401(2)(d)(iii); felon in possession of a firearm, MICH. COMP. LAWS
§750.224f; and three counts of possession of a firearm during the commission of a
felony (felony firearm), MICH. COMP. LAWS § 750.227b. The trial court sentenced
Petitioner to concurrent terms of two years in prison for each felony firearm conviction,
followed by a term of sixty-three months to eight years in prison for the cocaine and
marijuana convictions and a concurrent term of sixty-three months to ten years for the
felon-in-possession conviction.
The Michigan Court of Appeals affirmed Petitioner’s convictions in an
unpublished, per curiam decision, but remanded his case to the trial court for resentencing on the cocaine, marijuana, and felon-in-possession convictions. See People
v. Moore, No. 295266 (Mich. Ct. App. Apr. 5, 2011).1 On September 6, 2011, the
Michigan Supreme Court denied leave to appeal. See People v. Moore, __ Mich. __;

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Judge Douglas B. Shapiro concurred with the majority in all respects except as
to the scoring of offense variable one.
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801 N.W.2d 876 (Mich. 2011) (table).
On September 30, 2011, Petitioner filed his habeas corpus petition pursuant to
28 U.S.C. § 2254. The sole ground for relief alleges that Petitioner was convicted on
the basis of evidence gained through an unconstitutional search and seizure. Petitioner
contends that the search of his apartment was illegal because he did not consent to the
search and the police lacked a warrant to search his apartment. He further alleges that
there were no exigent circumstances justifying a warrantless search, there was no
probable cause to believe a crime was occurring in apartment three, and the inevitablediscovery rule did not apply.
II. Discussion
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, federal district
courts are required to promptly examine habeas corpus petitions when they are filed. “If
it plainly appears from the petition and attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the petition and direct the clerk to
notify the petitioner.” Id.
The sole issue in this case is whether Petitioner’s constitutional rights were
violated when the police searched his apartment and seized items from the apartment.
Petitioner’s claim is based on the Fourth Amendment to the United States Constitution,
which states that
[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
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The Supreme Court has held that, “where the State has provided an opportunity
for full and fair litigation of a Fourth Amendment claim, the Constitution does not require
that a state prisoner be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his trial.”
Stone v. Powell, 428 U.S. 465, 482 (1976). For a “full and fair” opportunity to have
existed, the state must have provided a mechanism for raising the claim and
presentation of the claim must not have been frustrated by a failure of that mechanism.
Gilbert v. Parke, 763 F.2d 821, 823 (6th Cir. 1985) (citing Riley v. Gray, 674 F.2d 522,
526 (6th Cir. 1982)).
In Michigan, defendants in criminal cases may challenge the legality of searches
and seizures in a motion to suppress evidence, which may be brought before or during
trial. People v. Ferguson, 376 Mich. 90, 93-95 (1965). Exhibits to the habeas petition
indicate that Petitioner raised his Fourth Amendment claim in a pretrial motion to
suppress evidence. The trial court held an evidentiary hearing on the motion and then
denied it. The trial court determined that Petitioner’s Fourth Amendment rights were not
violated and that the search of apartment three was inevitable in any event.
Petitioner also raised his Fourth Amendment claim in the Michigan Court of
Appeals. The Court of Appeals conducted a thorough analysis of Petitioner’s claim and
concluded on the basis of Maryland v. Garrison, 480 U.S. 79 (1987), that the initial entry
into Petitioner’s apartment did not violate his Fourth Amendment rights. The Court of
Appeals stated that, pursuant to the search warrant, the police “had the authority to
sweep and secure the upstairs area before taking the time to evaluate the situation.” Id.
Following the Court of Appeals decision, Petitioner raised his Fourth Amendment claim
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in the Michigan Supreme Court, which denied leave to appeal because it was not
persuaded to review the issue.
III. Conclusion
Petitioner had a full and fair opportunity to present his claim in state court. He
raised his claim in the trial court, in the Michigan Court of Appeals, and in the Michigan
Supreme Court. Consequently, his Fourth Amendment claim is not cognizable on
federal habeas corpus review. His petition for the writ of habeas corpus [dkt. #1] is
summarily dismissed with prejudice pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts.
The Court declines to issue a certificate of appealability because jurists of reason
would not find it debatable whether the petition states a valid claim of the denial of a
constitutional right or whether the Court’s procedural ruling was correct. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Court declines leave to proceed in forma
pauperis on appeal because an appeal could not be taken in good faith. 28 U.S.C. §
1915(a)(3).
sJohn Corbett O’Meara
United States District Judge
Date: October 31, 2011

I hereby certify that a copy of the foregoing document was served upon Petitioner
on this date, October 31, 2011, using first-class U.S. mail.

sWilliam Barkholz
Case Manager

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