Moss v. Winn

• Decision Date: 29 September 2020
• Docket Number: Case No. 18-11697
• Parties: STEVEN LEE MOSS, Petitioner, v. THOMAS WINN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

STEVEN LEE MOSS, Petitioner, v. THOMAS WINN, Respondent.

Case No. 18-11697

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 29, 2020

Honorable Linda V. Parker

OPINION AND ORDER

Petitioner Steven Lee Moss ("Petitioner"), confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In his application, filed by counsel, Petitioner challenges his convictions in the Circuit Court for Oakland County, Michigan, for possession with intent to deliver 1,000 or more grams of cocaine in violation of Michigan Compiled Laws § 333.7401(2)(a)(i) and possession of a firearm in the commission of a felony in violation of Michigan Compiled Laws § 750.227b. Petitioner also has filed two motions for summary judgment (ECF Nos. 12, 13) and a motion for release on bond (ECF No. 14). Because the Court concludes that Petitioner is not entitled to habeas relief, it is denying his application for the writ of habeas corpus and his pending motions.¹

I. Background

Petitioner was convicted of the above offenses following a bench trial in the Oakland County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals when denying Petitioner's direct appeal:

Defendant's convictions arise from his purchase of 10 kilograms of cocaine from a police undercover informant. After learning that defendant was interested in acquiring a large amount of cocaine and after conducting preliminary surveillance of defendant's activities, the police arranged for defendant to meet their informant. In addition to the police testimony, the prosecution presented evidence of video and audio recordings capturing the meetings and telephone conversations between defendant and the informant. The first meeting, on November 6, 2012, lasted approximately 30 minutes and defendant agreed to purchase 10 kilograms of cocaine. At their next meeting on November 7, 2012, defendant and the informant discussed the drug deal, anddefendant unsuccessfully attempted to persuade the informant to increase the purchase amount to 40 kilograms. In a restaurant parking lot, the informant showed defendant 10 kilograms of cocaine that were hidden in a compartment of an undercover police van. Defendant was instructed to contact the informant if he wanted to consummate the deal. Defendant contacted the informant on November 8, 2012, and they agreed to meet at a restaurant. They then agreed to transact the drug deal on November 9, 2012, which was when defendant believed he would have all the purchase money. Defendant unsuccessfully attempted to convince the informant to complete the transaction at defendant's house. Defendant also discussed his desire for future transactions with the informant. On November 9, 2012, defendant and the informant met in the parking lot of a Home Depot store, as planned. The informant was accompanied by another undercover officer who drove the van containing the drugs, and defendant also brought an associate with him. After defendant showed that he had the purchase money, which was in a suitcase in his car, the men walked to the undercover van where defendant was again shown the product. Defendant took possession of the van keys, got in the driver's seat, and turned on the ignition before the police remotely disabled the van. Defendant fled the vehicle on foot, but was arrested after a brief chase.

People v. Moss, No. 319954, 2015 WL 3604582, at *1 (Mich. Ct. App. June 9, 2015) (internal footnote omitted). These facts are presumed correct on habeasreview pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

Following his conviction, Petitioner filed a direct appeal and requested a remand for a Ginther hearing.² The matter was remanded, and Petitioner filed a motion for new trial based on ineffective assistance of counsel. After conducting a one-day hearing, the trial court denied Petitioner's motion. Petitioner's convictions were thereafter affirmed on direct appeal, see Moss, 2015 WL 3604582, leave denied 872 N.W.2d 474 (Mich. 2015).

Petitioner then filed a post-conviction motion for relief from judgment in the trial court. In his motion, Petitioner raised a sentencing claim and the claims he now asserts in his habeas petition. (See ECF No. 5-10.) The trial court denied the motion. (ECF No. 11.) The Michigan appellate courts denied Petitioner leave to appeal. (ECF Nos. 13, 14); see also People v. Moss, No. 340609 (Mich. Ct. App. Mar. 15, 2018), leave denied 503 Mich. 886, 918 N.W.2d 817 (2018).

Petitioner then filed the pending application for the writ of habeas corpus, raising the following claims:

I. Petitioner was deprived of his right to be represented by an attorney who would subject the prosecution's case to meaningful adversarial testing when his attorney agreed to a stipulated fact trial without Petitioner's authorization, conceded that "the crime occurred," and waived opening statement and closing argument.

II. Petitioner was deprived of his Sixth Amendment right to counsel of choice during several critical stages of the proceedings and did not knowingly and intelligently waive his right to be represented by his retained counsel, Steingold, when he was represented by nonretained Attorney Dwyer without authorization.

III. Where the prosecution's case relied solely on witness testimony, counsel's complete failure to conduct pretrial preparatory investigative interviews of any of the prosecution's witnesses constructively deprived Petitioner of his Sixth Amendment right to counsel because counsel was unable to subject the prosecution's case to any meaningful adversarial testing.

IV. Petitioner received ineffective assistance of appellate counsel and has good cause for failing to raise the constitutional violations set forth within on direct appeal.

Respondent filed a motion to dismiss arguing that the habeas petition was barred by the one-year limitations period found in 28 U.S.C. § 2244(d)(1). This Court denied Respondent's motion and ordered Respondent to file an answer to Petitioner's claims. Moss v. Winn, No. 18-11697, 2019 WL 2523550 (E.D. Mich. June 19, 2019). Respondent thereafter filed an Answer to the Petition. (ECF No. 10).³ As indicated, Petitioner subsequently filed two motions for summary judgment (ECF Nos. 12, 13) and a motion for release on bond (ECF No. 14).

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(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.

28 U.S.C. § 2254(d).

A decision of a state court is "contrary to" clearly established federal law if the 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, 405-406 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that therelevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

AEDPA "imposes a highly deferential standard for evaluating state-court rulings," and "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations omitted). A "state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. Pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. A "readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law." Woodford v. Viscotti, 537 U.S. 19, 24 (2002).

A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Id.Moreover, for claims that were adjudicated on the merits in state court, habeas review is "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

When reviewing a claim under AEDPA's deferential standard of review, a federal habeas court must review "the last state court to issue a reasoned opinion on the issue." Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005)). The Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner's post-conviction application for leave to...