Moore #592689 v. Palmer

Filing 26

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 24 , denying petition for writ of habeas corpus and denying a certificate of appealability ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEECLIFTON JEROME MOORE,
Petitioner,
Case No. 1:09-CV-74
v.
HON. ROBERT HOLMES BELL
CARMEN PALMER, Warden
Michigan Reformatory,
Respondent.
/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION AND
DENYING PETITION FOR WRIT OF HABEAS CORPUS
On May 5, 2011, Magistrate Judge Joseph G. Scoville issued a Report and
Recommendation (“R&R”) recommending that Petitioner Leeclifton Jerome Moore’s § 2254
petition for writ of habeas corpus be denied. (Dkt. No. 24, R&R.) This matter is before the
Court on Petitioner’s objections to the R&R. (Dkt. No. 25, Obj.)

This Court is required to make a de novo review upon the record of those portions of
the R&R to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“[A] general objection
to a magistrate’s report, which fails to specify the issues of contention, does not satisfy the
requirement that an objection be filed. The objections must be clear enough to enable the
district court to discern those issues that are dispositive and contentious.”). Although the

Magistrate Judge’s R&R is reviewed de novo, this Court must review the state court
proceedings consistent with the standards set forth in 28 U.S.C. § 2254.
Petitioner objects to the Magistrate Judge’s determination that the trial court’s failure
to instruct on the essential element of malice in a felony murder case was not a structural
defect. Petitioner contends that the Magistrate Judge’s reliance on Neder v. United States,
527 U.S. 1 (1999), is misplaced because Neder involved an instruction on an issue that was
not in dispute at trial. Petitioner’s objection is not well taken. The Neder court explicitly
rejected a case-by-case inquiry into the initial structural-error determination because it was
inconsistent with the traditional categorical approach to structural errors. Id. at 14. Whether
the element that was the subject of the omitted instruction was in dispute is relevant to the
harmless-error analysis but not to the determination of whether there was a structural error
that is not subject to harmless error analysis.
Petitioner also objects to the Magistrate Judge’s harmless error analysis under
California v. Roy, 519 U.S. 2 (1996). Petitioner cites Justice Scalia’s concurring opinion in
Roy in support of his contention that the absence of a formal verdict on each element of a
crime cannot be rendered harmless just because no reasonable jury would have found
otherwise. See Roy, 519 U.S. at 7-8 (Scalia, concurring). Petitioner’s reliance on Justice
Scalia’s concurrence in Roy, like his reliance on Justice Scalia’s dissent in Neder, is
misplaced because, as noted in the R&R, a decision in a habeas corpus case must be
grounded on the holdings of the United States Supreme Court. See R&R 23 (citing

2

Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004)).
Finally, Petitioner contends that the Magistrate Judge erroneously determined that the
instruction for child abuse first degree “effectively embraces” the malice element of felony
murder in Michigan. Petitioner correctly points out that “serious physical injury” for
purposes of first degree child abuse includes injuries such as a sprain or dislocation that
would not qualify as “great bodily harm” under the intent element of felony murder. The
Magistrate Judge recognized that the definitions are not synonymous, but concluded that
given the severity of the injuries in this case, the likelihood that the jury concluded that
Petitioner’s only intent was to inflict a sprain, dislocation , or other injury not severe enough
to qualify as “great bodily harm” is nil. See R&R 28. On de novo review, this Court agrees
with the Magistrate Judge’s conclusion. The Court will accordingly adopt the R&R’s
recommendation and deny Petitioner’s habeas petition.
An appeal may not be taken from a final order in a habeas case unless a certificate of
appealability is issued. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued
“only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rule 11(a) of the Rules Governing
§ 2254 Cases. The district court should not await an appeal or an application for a certificate
before making this ruling. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
Petitioner has failed to make a substantial showing of the denial of a constitutional right. The

3

Court finds, for the reasons stated in the R&R, that no reasonable jurists would find the
R&R’s assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel,
529 U.S. 473, 484 (2000). Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections to the Report and
Recommendation of the Magistrate Judge (Dkt. No. 25) are OVERRULED.
IT IS FURTHER ORDERED that the May 5, 2011, Report and Recommendation
of the Magistrate Judge (Dkt. No. 24) is APPROVED and ADOPTED as the opinion of the
Court.
IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas corpus
(Dkt. No. 1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

Dated: January 11, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

4