Moore v. Howard
| Docket Number | 2:23-cv-131 |
| Decision Date | 31 October 2023 |
| Parties | THOMAS MOORE, Petitioner, v. JEFF HOWARD, Respondent. |
| Court | U.S. District Court — Western District of Michigan |
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Petitioner consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (Pet., ECF No. 1, PageID.25.) Section 636(c) provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case ....” 28 U.S.C. § 636(c).
This case is presently before the Court for preliminary review pursuant to 28 U.S.C. § 2253 and Rule 4 of the Rules Governing § 2254 Cases. The Court is required to conduct this initial review prior to the service of the petition. Rule 4, Rules Governing § 2254 Cases.
Service of the petition on the respondent is of particular significance in defining a putative respondent's relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially and is required to take action in that capacity, only upon service of a summons or other authorityasserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351.
Rule 4, by requiring courts to review and even resolve the petition before service, creates a circumstance where there may only be one party to the proceeding-the petitioner. Because Respondent has not yet been served, the undersigned concludes that Respondent is not presently a party whose consent is required to permit the undersigned to conduct a preliminary review of the petition. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) ().[1] Petitioner's consent is sufficient to permit the undersigned to conduct the Rule 4 review.
The Court conducts a preliminary review of the petition under Rule 4 to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.
Petitioner Thomas Moore is incarcerated with the Michigan Department of Corrections (MDOC) at the Baraga Correctional Facility in Baraga, Michigan. On August 8, 2019, following a four-day bench trial in the Wayne County Circuit Court, Petitioner was convicted in two separate criminal proceedings that were consolidated for trial. In Wayne County Circuit Court Case No. 19-003135-01-FC (herein the “April 2019 incident case”), Petitioner was convicted of assault with intent to do great bodily harm (AGBH), in violation of Mich. Comp. Laws § 750.84, and unlawful imprisonment, in violation of Mich. Comp. Laws § 750.349b. On September 6, 2019, Petitioner was sentenced to concurrent prison terms of 5 to 10 years for the assault conviction and 5 to 15 years for the unlawful imprisonment conviction.
In Wayne County Circuit Court Case No. 19-003535-01-FC (herein the “January 2019 incident case”), Petitioner was convicted of two counts of assault with intent to commit murder (AWIM), in violation of Mich. Comp. Laws § 750.83, one count of witness intimidation, in violation of Mich. Comp. Laws § 750.122(7)(c), one count of carry a concealed weapon (CCW), in violation of Mich. Comp. Laws § 750.227, one count of felon in possession of a firearm and one count of felon in possession of ammunition, in violation of Mich. Comp. Laws § 750.224f, and two counts of use of a firearm during the commission of a felony (felony-firearm), in violation of Mich. Comp. Laws § 750.227b. On September 6, 2019, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent sentences of 33 to 60 years for AWIM, 1 to 15 years for witness intimidation, 1 to 5 years for CCW, and 1 to 4 years for each felon-in-possession offense. Those concurrent sentences, in turn, were to be served consecutively to concurrent sentences of 2 years for the felony-firearm offenses. The consecutive string from the January 2019 incident case was to be served concurrently with the sentences from the April 2019 incident case.
Based on Petitioner's sentences in the two cases, the MDOC lists Petitioner's “earliest release date”-the date he is first eligible for parole-as September 5, 2054, and his maximum release date-the date he will complete his maximum term of imprisonment-as September 5, 2081. See MDOC Offender Tracking Information System, https://mdocweb.state.mi.us/ otis2/otis2profile.aspx?mdocNumber=174138 (last visited Oct. 15, 2023).
The Michigan Court of Appeals described the facts underlying Petitioner's convictions relating to the January 2019 incident case as follows:
Defendant's convictions in LC No. 19-003535-01-FC arise from the January 7, 2019 shooting assaults of Barbara Peruski and Adrian Cotton while they were sitting in a van in the parking lot of Peruski's apartment building in Detroit. Cotton became involved in a verbal confrontation with a man walking in front of the van. The man began to walk away, but then turned around and fired multiple shots at the van. Cotton was struck in the forehead. Peruski, who was not struck by the gunfire, identified defendant, whom she knew, as the shooter.
People v. Moore, Nos. 350955, 350957, 2022 WL 17542740, at *1 (Mich. Ct. App. Dec. 8, 2022). The court described the facts underlying Petitioner's convictions relating to the April 2019 incident case as follows:
Before defendant was charged in the January 2019 shooting, the police were called to investigate a second incident involving defendant and Peruski, which led to the charges in LC No. 19-003135-01-FC. After Peruski appeared before a grand jury in relation to the January 2019 shooting, she left her neighborhood for her safety, but later returned for a visit. Peruski, accompanied by Jennifer Foster and Christopher Crawford, returned to her former neighborhood to pick up some belongings during the early morning hours of April 6, 2019. After Peruski exited her vehicle to cross the street, she heard defendant call out her name. Peruski ran off and Foster followed her, but defendant caught up to Peruski and began physically assaulting her. Foster tried to assist Peruski, but defendant hit her in the face, knocking her into some bushes. Crawford also tried to help and defendant stabbed him three times with a box cutter. Defendant then took Peruski by her arm to some apartments, where he held her in a courtyard area and told her that she had only one hour for Pam Edens to arrive to save her life. Defendant told Peruski that she owed Edens $50, which Peruski denied. While defendant continued to argue and fight with Peruski, a man appeared on a balcony and told him to stop. Defendant then dragged Peruski into an apartment and began to count down how much longer she had to live before he was going to kill her. The man from the balcony, referred to as “Slim,” came to the apartment while armed with a gun and escorted Peruski away to the safety of another apartment. In the meantime, Foster had called the police and Peruski eventually left the building to talk to the police. Defendant was arrested approximately an hour after the police initially responded, after the police obtained information about his whereabouts from his cell phone service provider.
Id.[2]
Petitioner, with the assistance of counsel, appealed his convictions to the Michigan Court of Appeals, raising six issues-the same issues he raises in his habeas petition. (Pet., ECF No. 1, PageID.4-6, 11-22.) By opinion issued December 8, 2022, the court of appeals rejected Petitioner's challenges and affirmed the trial court.
Petitioner then filed a pro per application for leave to appeal to the Michigan Supreme Court, but he raised only three of the issues that he had raised in the court of appeals.[3] (Id., PageID.6-7.) The Michigan Supreme Court denied leave by order entered May 2, 2023. People v. Moore, 988 N.W.2d 771 (Mich. 2023). Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, he...
To continue reading
Request your trial