Moore v. Lind, 669 F. App'x 957

Brandon Scott Moore was convicted in Colorado of first-degree murder and child abuse resulting in death; the murder conviction was later reversed on direct appeal.
After reversal, Moore pled guilty to retaliation against a victim/witness in exchange for dismissal of the murder charge.
Moore filed a federal habeas petition under 28 U.S.C. § 2254 challenging (1) expert-witness testimony, (2) prosecutorial misconduct in closing argument, and (3) failure to vacate the child-abuse conviction when the murder conviction was reversed.
The district court denied habeas relief; Moore sought a certificate of appealability (COA) to appeal that denial.
The court of appeals reviewed whether reasonable jurists could debate the district court’s procedural and merits rulings and concluded Moore failed to make the substantial showing required for a COA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Expert testimony usurped the jury by opining on Moore’s culpable mental state	Moore: expert testimony improperly expressed opinions on his mental state, violating due process	State: testimony was largely proper and not plain error under state law given Moore’s defense	Denied COA; state and district courts’ conclusions not reasonably debatable; no fundamental unfairness shown
2. Prosecutorial misconduct in closing argument rendered trial unfair	Moore: prosecutor’s closing statements on child-abuse charge were improper and denied due process	State: only two statements were improper, both were objected to and cured by instructions	Denied COA; curative instructions and objections undermined claim of fundamental unfairness
3. Conviction for child abuse should have been vacated with reversed murder conviction	Moore: convictions arose from same facts so reversing murder required reversing child-abuse conviction	State: claim was unexhausted in state court and would now be untimely; procedurally defaulted	Denied COA; procedurally barred, Moore failed to show cause and prejudice or new- evidence actual innocence

Slack v. McDaniel, 529 U.S. 473 (standard for certificate of appealability)
Dowling v. United States, 493 U.S. 342 (criminal-trial evidence and due-process limits on expert testimony)
Darden v. Wainwright, 477 U.S. 168 (prosecutorial misconduct and due-process standard)
Coleman v. Thompson, 501 U.S. 722 (procedural default/cause-and-prejudice framework)
Schlup v. Delo, 513 U.S. 298 (actual-innocence gateway to overcome procedural default)