United States District Court, M.D. Louisiana
DEREK N. MOORE (#390963)
N. BURL CAIN, ET AL.
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
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.
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).
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.
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).
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.”
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).
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.
Ground Two: He was denied his Sixth Amendment right to a
trial by an impartial jury drawn from a fair cross-section of
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
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
Ground Six: The trial court failed to conduct a balancing
test before excluding the testimony of his alibi witness at
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
See State v. Moore, supra, 2010 WL 1838314, *1.
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.”
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
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.”
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
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.
officers showed a six-person photographic lineup to Lee, and
he identified Petitioner as the perpetrator of the
shootings. 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.
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.
on the foregoing, the jury returned a verdict finding
Petitioner guilty of the charged offenses.
Applicable Law and Analysis
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.
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).
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.
State contends that, applying this standard to
Petitioner's claims, there is no basis for the granting
of habeas corpus relief.
Claim No. 1, Regarding The Trial Court's Failure To
Uphold A Batson Challenge, Is Without Merit
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