Moss v. Hofbauer

• Decision Date: 12 April 2002
• Docket Number: No. 00-1518.,00-1518.
• Citation: 286 F.3d 851
• Parties: Kim MOSS, Petitioner-Appellant, v. Gerald HOFBAUER, Respondent Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 851

286 F.3d 851

Kim MOSS, Petitioner-Appellant, v. Gerald HOFBAUER, Respondent Appellee.

No. 00-1518.

United States Court of Appeals, Sixth Circuit.

Argued: November 28, 2001.

Decided and Filed: April 12, 2002.

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Andrew N. Wise (argued and briefed), Federal Public Defenders Office, Detroit, MI, for Petitioner-Appellant.

Janet A. Van Cleve (argued and briefed), Office of the Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent-Appellee.

Before: CLAY and GILMAN, Circuit Judges; EDGAR, Chief District Judge.^*

GILMAN, J., delivered the opinion of the court, in which EDGAR, D. J., joined. CLAY, J. (pp. 869-878), delivered a separate dissenting opinion.

GILMAN, Circuit Judge.

On January 20, 1985, Kim Moss was convicted by a state court jury on one count of first-degree murder and on one count of possession of a firearm during the commission of a felony. Moss was sentenced to life imprisonment without the possibility of parole for the murder conviction, and to two years' imprisonment for the firearm conviction. After unsuccessfully pursuing all available state court relief, Moss petitioned for a writ of habeas corpus in federal district court. The district court, after conducting an evidentiary hearing, denied Moss's petition. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Moss was convicted of first-degree murder and possession of a firearm during the commission of a felony for the killing of Darrell Manley. Keith Gould, Moss's codefendant at trial, was convicted of the same offenses. Andrus Thomas, a third codefendant, pled guilty to second-degree murder and possession of a firearm during the commission of a felony. The Michigan Court of Appeals summarized the facts that led to Moss's conviction as follows:

On June 13, 1984, Darrell Manley sustained four gunshot wounds during a confrontation with defendants Moss and Gould and another individual identified as Andrus Thomas. The two wounds to the victim's upper left chest were fatal. Eyewitness testimony established that there were two series of gunshots. First, Thomas took a gun out of defendant Moss's hand and fired twice at the victim. The victim grabbed his side and collapsed to the ground. Secondly, Moss took the gun and fired several shots at the victim as he lay on the ground. Thomas ran in one direction, while Moss and Gould ran together in another. An eyewitness, James Freeman, heard Moss say as they ran "He is dead, man, I killed him." Moss then asked Gould if he had the guns and Gould responded "yeah."

According to Higa Vaught, who was with the victim, the confrontation stemmed from a dispute over a gun. Earlier in the day, Vaught accompanied the victim to Moss's apartment where the victim asked Moss for his (the victim's) pistol. Moss informed the victim that Gould had the pistol, so the victim and Vaught went to Gould's house. After Gould denied that he had the pistol, the victim and Vaught left. Later, they encountered Gould at a basketball court. The victim grabbed Gould by the neck, choked him, and started shaking him for information about the gun. After this physical confrontation ended, the victim said "somebody is going to be smoking [beaten up] tonight" if he did not get the gun.

Sometime later, the victim and Vaught encountered Moss and Gould outside of Moss's apartment building. Thomas arrived a short time thereafter. Moss had a gun in his left hand on the side. He and the victim began arguing. When Thomas appeared, the victim said to him "I have been wanting to get at you anyway." Thomas grabbed the gun from Moss and shot the victim. Although Vaught did not see who fired the second series of shots to the victim, another eyewitness, Nicole Purdie, identified Moss as the shooter.

(Alteration in original.)

Following his conviction, Moss appealed. Moss claimed that the evidence was insufficient to sustain his conviction, that the trial judge gave erroneous jury instructions that the admission of a statement made by Gould violated Moss's Sixth Amendment right to confront the witness against him, that prosecutorial misconduct occurred, and that his trial counsel was ineffective. After concluding that none of Moss's claims provided grounds for reversal, the Michigan Court of Appeals affirmed his conviction on April 20, 1989. The Michigan Supreme Court denied Moss's request for leave to appeal on July 30, 1990.

Moss subsequently filed a motion for relief from judgment in the state trial court, seeking a new trial on the basis of newly discovered evidence and requesting an evidentiary hearing on the issue of ineffective assistance of counsel. The newly discovered evidence consisted of an affidavit that Thomas signed two years after the trial in which he averred that he was the only defendant who fired the gun during the altercation that led to Manley's death.

On February 14, 1994, the trial court denied Moss's motion. The court concluded that Thomas's version of the confrontation could have been discovered through the exercise of reasonable diligence by Moss's trial counsel. As the court reasoned, Thomas was available to testify at the trial, but Moss's trial counsel did not call Thomas as a witness because, according to correspondence between Moss's trial counsel and his new appellate counsel, at the time of trial Thomas would have testified that he fired only two of the four bullets. The court also determined that an evidentiary hearing concerning Moss's ineffective-assistance-of-counsel claim was not warranted for the reasons set forth by the Court of Appeals in its earlier ruling. Moss's appeals were denied by both the Michigan Court of Appeals and the Michigan Supreme Court.

On May 17, 1997, Moss petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of Michigan. The district court granted an evidentiary hearing on Moss's claim of ineffective assistance of counsel, but dismissed his other claims.

According to the district court, an evidentiary hearing was necessary because the state courts neither developed a factual record regarding whether the performance of Moss's counsel was constitutionally deficient nor fully addressed the merits of his claim. The Michigan Court of Appeals had rejected Moss's claim that his counsel was ineffective in failing to object to the prosecutor's argument that Manley was not armed and in failing to challenge the voluntariness of Moss's statement to the police. Moss's request for an evidentiary hearing was denied by the state trial court "for the same reasons as in the April 20, 1989 Court of Appeals Opinion." As the district court noted, however, Moss's pro se appellate brief also mentioned his counsel's failure to cross-examine Freeman and Purdie, and Moss's motion for reconsideration and for an evidentiary hearing alleged that his trial counsel admitted Moss's guilt in her closing argument, failed to conduct an effective defense, and failed to cross-examine witnesses.

Pursuant to the district court's order, the evidentiary hearing was limited to "the issue of ineffective assistance of counsel regarding counsel's failure to cross-examine key prosecution witnesses, investigate and present possible defenses, including calling Andrus Thomas as a defense witness, and conceding petitioner's guilt in her closing statement." The district court referred the case to a magistrate judge to conduct the evidentiary hearing.

At the evidentiary hearing, Thomas testified that he fired all of the bullets that were in the gun and then threw the gun in the grass as he was fleeing the scene of the crime. He also testified that he was the one who said "I killed a man" as he was running down an alley. Thomas admitted that he had earlier told the police that he fired just two shots, but claimed that he made this statement only after the police officers said that they did not believe his initial version of what happened and told him that they would allow him to go home if he signed the statement. According to Thomas, he did not hear any shots fired after he fled the scene, and any inconsistency with the prior statement that he made to the police was the result of his fear of going to jail and the instructions that he received from the police. Additionally, Thomas testified that the terms of his plea bargain required him to testify that he fired only two bullets. He therefore acknowledged that his testimony at his guilty plea hearing that he fired only two shots and that someone else also shot Manley had been untruthful.

Thomas was released from prison in 1989, after serving four years for second-degree murder. His sentence for this offense was a period of incarceration from 4 to 15 years. Thomas then served two years on parole for possessing a firearm during the commission of a felony.

Moss was the second witness to take the stand at the evidentiary hearing. He testified that Thomas fired all of the bullets in the gun and then fled. Moss claimed that after remaining at the scene of the shooting for about a minute, he and Gould ran back to Moss's apartment. In contrast to Freeman's testimony, Moss insisted that he did not say anything to Gould while they were running. According to Moss, his trial attorney — Sophie Modelski — never questioned him in detail about what occurred when Manley was shot. Moss also testified that he told Modelski that "I didn't do the shooting, that Mr. Thomas did the shooting." The record is unclear regarding whether Moss told Modelski that Thomas fired all of the bullets, or whether he told her that both Thomas and Gould shot Manley.

Modelski, the third witness, said that Moss consistently maintained that Gould had fired the gun, and that she did not remember Moss telling her that Thomas also shot Manley. Regarding her preparation for trial, Modelski admitted that she did not hire an...