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Moore v. Cain

United States District Court, M.D. Louisiana

October 8, 2017

DEREK N. MOORE (#390963)
v.
N. BURL CAIN, ET AL.

          ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Before the Court is the application by Petitioner Derek N. Moore for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Petitioner's application should be denied. There is no need for oral argument or for an evidentiary hearing.

         I. Procedural History

         On May 10, 2007, Petitioner was charged by grand jury indictment in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, with one count of second-degree murder and one count of attempted second-degree murder. Discovery motions were filed on Petitioner's behalf by his retained counsel. The State thereafter responded to Petitioner's discovery requests on July 19, 2007 and filed a reciprocal motion for discovery, requesting therein information relative to any potential alibi witnesses. Petitioner did not respond to the State's discovery requests, however, until the morning following the commencement of jury selection, September 16, 2008, at which time Petitioner indicated that he intended to present an alibi witness. The State objected and sought to exclude the testimony of the alibi witness. Upon a determination by the trial judge that Petitioner failed to show good cause for the delay in notice, the court excluded Petitioner's alibi witness. Although Petitioner sought supervisory review of this determination before the intermediate appellate court and the Louisiana Supreme Court, Petitioner's supervisory writ applications were denied, and the matter proceeded to trial. See State v. Moore, 992 So.2d 971 (La. 2008).

         On September 18, 2008, the jury found Petitioner guilty on both counts. Upon the denial of post-trial motions, the trial judge sentenced Petitioner on January 29, 2009, to life imprisonment in connection with the second degree murder charge and to fifteen years in confinement in connection with the attempted second-degree murder charge, without the benefit of probation, parole or suspension of sentence, with these sentences to run concurrently.

         Petitioner pursued a direct appeal, asserting both counseled and pro se issues for review, principally arguing that the trial judge erred in excluding his alibi witness and that the evidence was insufficient to support the verdict. On May 7, 2010 the Louisiana Court of Appeal for the First Circuit affirmed Petitioner's convictions and sentences. State v. Moore, 39 So.3d 850, 2010 WL 1838314 (La.App. 1 Cir. 2010). Petitioner sought further review before the Louisiana Supreme Court and, on January 7, 2011, that Court denied review, without comment. See State v. Moore, 52 So.3d 882 (La. 2011). Petitioner also filed a writ of certiorari in the United States Supreme Court and, on May 16, 2011, that Court denied review. See Moore v. Louisiana, 563 U.S. 993 (2011).

         Petitioner filed a pro se application for post-conviction relief (“PCR") on or about November 23, 2011. Petitioner asserted therein (1) that the trial court erred in rejecting his claim that the prosecution exercised a challenge to an African-American juror on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986), (2) that he was denied his Sixth Amendment right to a trial by an impartial jury drawn from a fair cross-section of the community, (3) that the prosecution engaged in misconduct by vouching for the credibility of the State's principal witness and by commenting upon Petitioner's failure to testify at trial, (4) that he was provided with ineffective assistance of counsel at trial because his trial attorney failed to conduct an adequate investigation, and (5) that the evidence was insufficient to support the verdicts. The State filed procedural objections, asserting (1) that Petitioner's claims numbered 1-3 should be rejected pursuant to La. Code Crim. P. art. 930.4(B) because they were inexcusably omitted from Petitioner's direct appeal, and (2) that Petitioner's claim number 5 should be rejected pursuant to La. Code Crim. P. art. 930.4(A) because it was repetitive, having been fully addressed in connection with Petitioner's direct appeal. On March 22, 2013, the State Court Commissioner issued a Report recommending that Petitioner's claims numbered 1 through 4 be denied for lack of merit and that Petitioner's claim number 5 be denied as procedurally barred as repetitive pursuant to La. Code Crim. P. art. 930.4(A). On May 6, 2013, the trial court accepted the Commissioner's Recommendation and denied Petitioner's PCR application, finding claim number 5 to be procedurally barred as repetitive and claims numbered 1 to 4 to be “factually insufficient to warrant relief or otherwise without merit.”[1]

         Petitioner thereafter filed an application for supervisory review in the Louisiana First Circuit Court of Appeal. The First Circuit Court denied review on August 28, 2013. State v. Moore, 2013 WL 12120767 (La.App. 1 Cir. Aug. 28, 2013). Petitioner sought further review in the Louisiana Supreme Court, which Court denied review on April 25, 2014. State ex rel. Moore v. State, 138 So.3d 638 (La. 2014).

         Petitioner signed his federal habeas corpus application on or about May 13, 2014, and it was electronically submitted to this Court and filed on May 14, 2014. Petitioner asserts the following grounds for relief:

Ground One: The trial court erred in rejecting a claim that the prosecution exercised a challenge to an African-American juror on the basis of race in violation of Batson v. Kentucky, supra;
Ground Two: He was denied his Sixth Amendment right to a trial by an impartial jury drawn from a fair cross-section of the community;
Ground Three: The prosecution engaged in misconduct by vouching for the credibility of the State's witness and by commenting upon Petitioner's failure to testify at trial;
Ground Four: He was provided with ineffective assistance of counsel at trial because his trial attorney failed to conduct an adequate investigation;
Ground Five: There was insufficient evidence to support the verdicts; and
Ground Six: The trial court failed to conduct a balancing test before excluding the testimony of his alibi witness at trial.

         II. Factual Summary

         The facts, as summarized in the opinion of the Louisiana Court of Appeal for the First Circuit, are as follows:

On or about March 16, 2007, at about 10:30 p.m., a gunman knocked on the door of a residence located at 864 North 38th Street in Baton Rouge, Louisiana and held the victim, Cathy Brumfield, at gunpoint as he entered the home. The gunman asked about money and for a person named Gilbert. The gunman then began firing his weapon. Officers of the Baton Rouge City Police Department were dispatched to the residence. Upon their arrival, the officers learned that it was the scene of the shooting of victims Kevin Lee and Ms. Brumfield. Ms. Brumfield died as a result of injuries suffered from the shooting. The defendant was identified as the shooter of both victims.

See State v. Moore, supra, 2010 WL 1838314, *1.

         In addition to the foregoing, the evidence adduced at trial reflects that on the morning of the shooting, March 16, 2007, one of the victims, Kevin Lee, was contacted by Petitioner and a third person, Gilbert Schuler, for the purpose of arranging a drug purchase that was to occur later that day at Lee's house. Lee and Petitioner were well-acquainted and had known each other for years because Petitioner was married to Lee's cousin Alisha. According to Lee, he usually referred to Petitioner by the nickname “Dot.”

         At some point that day, the three men met at Lee's house, and Petitioner gave Gilbert Schuler $4, 600 to purchase narcotics. Schuler did not have the narcotics in his possession, however, so Lee loaned Schuler his vehicle to go retrieve the drugs. Notwithstanding, Schuler did not return, and after waiting for a period of time, Lee and Petitioner began making calls to determine what had happened to Schuler. According to Lee, the men learned that Schuler may have abandoned the vehicle in an attempt to evade police. Lee and Petitioner then went out to retrieve Lee's abandoned car and to look for Schuler, but they were unsuccessful and returned to Lee's house. Along the way, Petitioner stopped at Lee's aunt's house to retrieve two handguns.

         Once back at Lee's house, Petitioner's wife Alisha arrived and inferentially suggested to Petitioner that Lee and Schuler may have been working together to take Petitioner's money. Petitioner eventually left Lee's house, telling Lee that it was “not about the money anymore” and that when Petitioner found Schuler, it was going to be “me and him.”

         Later that evening, Lee cooked some food outside on a grill and then came in to take a bath. At that time, Lee's fiancée Cathy Brumfield and her son Darius were also in the house. Lee testified that he was in the bath and heard a knock at the front door, after which Cathy came to the bathroom door and said that his cousin “Dot” was there. Lee told Cathy to tell “Dot” he was getting out of the tub and coming, but shortly thereafter, Lee heard Cathy call his name, and then the bathroom door flew open, and Petitioner began shooting at Lee, striking Lee seven times in the head and body. Lee fell back in the tub and subsequently heard two more shots. When he was able to exit the bathroom, he found that Cathy had also been shot, and she kept repeating to him, “why your cousin shot me?”

         Cathy's son Darius, who was fourteen years old at the time, testified that he was in his bedroom and heard a knock on the front door that Cathy answered. Darius then heard his mother and sister screaming, so he came to the door of his bedroom and saw a man with “twists” in his hair, who Darius was told by Lee was “Dot, ” holding a gun to his mother's head. Darius retreated into his bedroom and closed the door. Darius testified that through the door he heard the man asking about money and asking for a man named “Gilbert” and then heard gunshots. When he later exited his bedroom, he found that his mother and Lee had been shot several times.

         Police officers showed a six-person photographic lineup to Lee, and he identified Petitioner as the perpetrator of the shootings.[2] Police also exhibited the photographic lineup to Darius, but Darius was unable to identify Petitioner, possibly because in the photograph of Petitioner, he not have the “twists” or braids that Darius had observed on the night of March 16, 2007.

         Finally, on March 21, 2007, several days after the incident, police officers apprehended Petitioner after a brief chase. According to police, they received a tip that Petitioner was driving a silver or gray Lincoln Navigator in an area known as the “Avenues” in Baton Rouge, and officers were dispatched to the area to search for it. A vehicle matching that description was subsequently observed to stop at a nearby grocery store and a black male was observed entering the store. Police entered the store only to find that the black male had exited the rear thereof. The officers then observed a man running from the store and attempting to jump a fence and evade capture. The man was subsequently apprehended and identified as Petitioner and was discovered to have the keys to the Lincoln Navigator in his pocket.

         Based on the foregoing, the jury returned a verdict finding Petitioner guilty of the charged offenses.

         III. Applicable Law and Analysis

         Standard of Review

         Turning to a consideration of Petitioner's claims, the standard of review in this Court is that set forth in 28 U.S.C. § 2254(d). Under this statute, an application for a writ of habeas corpus shall not be granted with respect to any claim that a state court has adjudicated on the merits unless the adjudication has “(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 determination of the facts in light of the evidence presented in the State court proceeding.” Relief is authorized if a 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, 413 (2000). Relief is also available if the state court identifies the correct legal principle but unreasonably applies that principle to the facts of the petitioner's case or reaches a decision based on an unreasonable factual determination. See Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere error by the state court or mere disagreement on the part of this Court with the state court determination is not enough; the standard is one of objective reasonableness. Id. See also Williams v. Taylor, supra, 529 U.S. at 409 (“[A] federal habeas court making the ‘unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable”). State court determinations of underlying factual issues are presumed correct, and Petitioner has the burden to rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         Review under ' 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011); McCamey v. Epps, 658 F.3d 491, 497 (5th Cir. 2011). Review under ' 2254(d)(1) focuses on what a state court knew and did. Cullen v. Pinholster, supra, 563 U.S. at 182. A[E]vidence introduced in federal court has no bearing on ' 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas corpus petitioner must overcome the limitation of ' 2254(d)(1) based on the record that was before that state court." Id. at 184. State court decisions are measured against the Supreme Court's precedents as of “the time the state court renders its decisions." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Pinholster prohibits a federal court from using evidence that is introduced for the first time at a federal-court evidentiary hearing as the basis for concluding that a state court's adjudication is not entitled to deference under ' 2254(d). Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011).[3]

         To determine whether a particular decision is “contrary to" then-established law, a federal court must consider whether the decision “applies a rule that contradicts [such] law" and how the decision “confronts [the] set of facts" that were before the state court. Williams v. Taylor, 529 U.S. 362, 405, 406 (2000). If the state court decision “identifies the correct governing legal principle" in existence at the time, a federal court must assess whether the decision “unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

         The State contends that, applying this standard to Petitioner's claims, there is no basis for the granting of habeas corpus relief.

         Petitioner's Claim No. 1, Regarding The Trial Court's Failure To Uphold A Batson Challenge, Is Without Merit

         Petitioner first asserts that the trial court erred in overruling Petitioner's objection to the alleged race-based use of peremptory challenges by the State pursuant to Batson v. Kentucky, supra. Petitioner asserts that potential juror Tangi Williams was dismissed by the prosecution because she was African-American. He further maintains that the ...


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