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Moore v. Griffith

United States District Court, E.D. Missouri, Eastern Division

February 1, 2018

DARRYL MOORE, Petitioner,
v.
CINDY GRIFFITH, [1] Respondent.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Doc. 5). After reviewing the case, the Court has determined that Petitioner is not entitled to relief. As a result, the Court will DENY the Petition and DISMISS the case.

         I. BACKGROUND

         On July 8, 2010, a jury found Petitioner guilty of second-degree murder (Count I) and armed criminal action (Count II) (Ex. D at 4). The trial court sentenced Petitioner to three years' imprisonment for the armed criminal action count and life imprisonment for the second-degree murder count in the custody of the Missouri Department of Corrections, to be served concurrently (Id. at 75-78).

         Petitioner filed a direct appeal raising two claims:

(1) The trial court erred when it refused to grant a writ of body attachment against Lamarkis Cowan because there was sufficient evidence showing both that Mr. Cowan initially obeyed a defense subpoena and that he was a material defense witness; and
(2) The trial court erred when it overruled Petitioner's motions for judgment of acquittal at the close of the State's evidence because there is reasonable doubt that Petitioner operated the .45 caliber automatic handgun that fired the bullets causing the downward-tracking fatal wounds to the victim's body because of Petitioner's short height and obvious physical disability.

(Ex. H). The Missouri Court of Appeals for the Eastern District, finding no error of law, affirmed the judgment (Ex. L).

         On June 11, 2012, Petitioner filed a pro se motion for post-conviction relief (Ex. M at 5). On October 11, 2012, with the assistance of counsel, Petitioner filed an amended motion for post-conviction relief (Id. at 4). On July 26, 2013, without holding an evidentiary hearing, the motion court denied Petitioner's amended motion (Id. at 58-62). On September 4, 2013, Petitioner filed a notice of appeal (Id. at 3) and, on December 6, 2013, with the assistance of counsel, submitted a brief in support of his appeal raising the following two grounds for relief:

(1) Trial counsel failed to (a) secure Mr. Lamarkis Cowan's testimony by endorsing and validly subpoenaing him; and (b) properly request a writ of body attachment for Mr. Cowan; and
(2) Trial counsel failed to object and request a mistrial when the State argued in closing, “Now think about what it would be like to watch . . . someone shoot your son in the head.”

         (Ex. N). On April 8, 2014, the Missouri Court of Appeals for the Eastern District affirmed the circuit court's denial of the motion (Ex. P).

         On January 23, 2015, Petitioner filed the instant Section 2254 Petition in which he raises the following four grounds for relief:

(1) The trial court erred in refusing to issue a writ of body attachment against defense witness Lamarkis Cowan, compelling him to testify, because there was sufficient evidence showing that he was properly subpoenaed to testify (Doc. 1-1 at 2);
(2) The trial court erred when it overruled Petitioner's motions for judgment of acquittal at the close of the State's evidence because there is reasonable doubt that Petitioner operated the .45 caliber automatic handgun that fired the bullets causing the downward-tracking fatal wounds to the victim's body because of Petitioner's short height and obvious physical disability (Id. at 20);
(3) Trial counsel was ineffective for failing to (a) secure Cowan's testimony by endorsing and validly subpoenaing him; and (b) properly request a writ of body attachment due to alleged deficiencies with the subpoena return (Id. at 24); and
(4) Trial counsel was ineffective for failing to object and request a mistrial when the State argued in closing, “Now think about what it would be like to watch . . . someone shoot your son in the head” (Id. at 37).

         II. ...


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