Moore v. Cain
| Decision Date | 07 September 2017 |
| Docket Number | CIVIL ACTION NO. 14-0297-JJB-EWD |
| Parties | DEREK N. MOORE (#390963) v. N. BURL CAIN, ET AL. |
| Court | U.S. District Court — Middle District of Louisiana |
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.
Signed in Baton Rouge, Louisiana, on September 7, 2017.
/s/_________
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
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.
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 withineffective 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:
The facts, as summarized in the opinion of the Louisiana Court of Appeal for the FirstCircuit, 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...
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