bentley v. Bauman

Filing 6

OPINION and ORDER Granting Respondent's 4 Motion for Dismissal of Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

BRYANT EUGENE BENTLEY, JR.,
Petitioner,

Case Number: 1: 16-cv-14242
Honorable Thomas L. Ludington

v.
CATHERINE S. BAUMAN,
Respondent.
_________________________________________/
OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR DISMISSAL OF
PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF
APPEALABILITY
Petitioner Bryant Eugene Bentley, Jr., a prisoner in the custody of the Michigan
Department of Corrections, has filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254.

He challenges his convictions for armed robbery, Mich. Comp. Laws § 750.529;

conspiracy to commit armed robbery, Mich. Comp. Laws § 750.529; Mich. Comp. Laws §
750.529c; possession of 50 grams or more but less than 450 grams of a controlled substance
(cocaine), Mich. Comp. Laws § 333.74032a(3); resisting, obstructing, opposing, or endangering
a police officer, Mich. Comp. Laws § 750.81d(1); third-degree fleeing, Mich. Comp. Laws §
750.479a(3); felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and five counts of
possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b.
Respondent has filed a motion to dismiss arguing that the petition was not timely filed.

I.
Petitioner was convicted by a jury in Saginaw County Circuit Court as set forth above.
On December 15, 2011, he was sentenced to concurrent terms of 62 years, 6 months to 93 years,
9 months for the armed robbery and conspiracy to commit armed robbery convictions, 10 to 20
years for the cocaine and fleeing convictions, 3 to 5 years for the felon-in-possession conviction,
and 1 to 2 years for the resisting and obstructing conviction, all to be served consecutively to two
years for each of the felony-firearm convictions (the felony-firearm convictions to be served
concurrently with one another).
Petitioner filed an appeal of right in the Michigan Court of Appeals. The Michigan Court
of Appeals affirmed Petitioner’s convictions and sentences. People v. Bentley, Jr., No. 308069,
2012 WL 6217041 (Mich. Ct. App. Dec. 13, 2012). On April 29, 2013, the Michigan Supreme
Court denied Petitioner’s application for leave to appeal. People v. Bentley, Jr., 493 Mich. 969
(Mich. 2013).
On July 28, 2014, Petitioner filed a motion for relief from judgment in the trial court.
The trial court denied the motion. See 4/7/15 Saginaw County Cir. Ct. Dkt., ECF No. 4-1. The
Michigan Court of Appeals denied Petitioner’s application for leave to appeal the trial court’s
denial. People v. Bentley, Jr., No. 328596 (Mich. Ct. App. Nov. 4, 2015). On September 6,
2016, the Michigan Supreme Court denied Petitioner’s application for leave to appeal, People v.
Bentley, Jr., 500 Mich. 853 (Mich. Sept. 6, 2016), and, on November 30, 2016, denied
reconsideration. People v. Bentley, Jr., 500 Mich. 901 (Mich. Nov. 30, 2016).
Petitioner filed the pending habeas corpus petition through counsel on December 5, 2016.
Respondent filed a motion to dismiss on the ground that the petition was not timely filed and
Petitioner filed a reply to the motion.

II.
Respondent argues that the petition is barred by the one-year statute of limitations. Title
28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, applies to all habeas petitions filed after its
effective date, April 24, 1996, and imposes a one-year limitations period for habeas petitions.
See 28 U.S.C. § 2244(d)(1). A prisoner must file a federal habeas corpus petition within one
year of the “date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review . . . or the date on which the factual predicate of
the claim or claims presented could have been discovered through the exercise of due diligence.”
28 U.S.C. § 2244(d)(1)(A) & (D). The time during which a prisoner seeks state-court collateral
review of a conviction does not count toward the limitation period. 28 U.S.C. § 2244(d)(2); Ege
v. Yukins, 485 F.3d 364, 371-72 (6th Cir. 2007). A properly filed application for state postconviction relief, while tolling the limitation period, does not reset the limitation period at zero.
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
Petitioner appealed his conviction first to the Michigan Court of Appeals, and then to the
Michigan Supreme Court. The Michigan Supreme Court denied his application for leave to
appeal on April 29, 2013. Petitioner had ninety days from (and including) April 30, 2013, to file
a petition for writ of certiorari with the United States Supreme Court, which he did not do. Thus,
his conviction became final on July 28, 2013 (the 90th day following the denial of leave to
appeal), when the time period for seeking certiorari expired. Bronaugh, 235 F.3d at 283 (oneyear statute of limitations does not begin to run until the time for filing a petition for a writ of
certiorari for direct review in the United States Supreme Court has expired). The last day on
which a petitioner can file a petition for a writ of certiorari in the United States Supreme Court is

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not counted toward the one-year limitations period applicable to habeas corpus petitions. Id. at
285. Accordingly, the limitations period commenced on July 29, 2013, the 91st day following
the Michigan Supreme Court’s denial of leave to appeal. The limitations period continued to run
until July 28, 2014 (the 364th day of the limitations period) when Petitioner filed a motion for
relief from judgment in the trial court. The motion for relief from judgment tolled the limitations
period with 1 day remaining. See 28 U.S.C. § 2244(d)(2) (“The time during which a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation....”). The
limitations period continued to be tolled to and including November 30, 2016, when the
Michigan Supreme Court denied Petitioner’s motion for reconsideration of the court’s order
denying leave to appeal. The limitations period then restarted on Thursday, December 1, 2016
(the 365th day) and expired that same day.1
Petitioner argues that he is entitled to equitable tolling of the limitations period because
he has been diligent in pursuing his rights and is actually innocent. The AEDPA’s one-year
limitations period is not a jurisdictional bar and is therefore subject to equitable tolling where a
habeas petitioner “shows (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (internal quotation marks omitted). Petitioner acknowledges the two
requirements articulated in Holland, but fails to allege or identify an extraordinary circumstance
which prevented his timely filing. Therefore, he is not entitled to equitable tolling.

1

Petitioner incorrectly stated in his petition that the motion for reconsideration was denied on Friday, December 2,
2016, when in fact it was denied on November 30, 2016. If Petitioner was correct, and the motion for
reconsideration was denied on Friday December 2, then the limitations period would have expired on a Sunday, and
thus continued until the following Monday, December 5, when he filed his petition.

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Petitioner also argues that he can making a showing of actual innocence and therefore
excuse his untimeliness. The Supreme Court has held that a showing of actual innocence
overcomes AEDPA’s statute of limitations. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928
(2013). To determine whether a petitioner has satisfied the requirements for establishing a
cognizable claim of actual innocence to warrant equitable tolling, the court applies “the same
actual innocence standard developed in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), for
reviewing a federal habeas applicant’s procedurally defaulted claim.” McCray v. Vasbinder, 499
F.3d 568, 571 (6th Cir. 2007), citing Souter, 395 F.3d at 596. A valid claim of actual innocence
requires a petitioner “to support his allegations of constitutional error with new reliable evidence
– whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical
physical evidence – that was not presented at trial.” Schlup, 513 U.S. at 324. “The Schlup
standard is demanding and permits review only in the ‘extraordinary’ case.” House v. Bell, 547
U.S. 518, 538 (2006) (citation omitted). A court presented with new evidence must consider it in
light of “all the evidence, old and new, incriminating and exculpatory, without regard to whether
it would necessarily be admitted under rules of admissibility that would govern at trial.” Id.
(citation omitted).

“Based on this total record, the court must make ‘a probabilistic

determination about what reasonable, properly instructed jurors would do.’” Id. (quoting Schlup,
513 U.S. at 329). This standard does not require absolute certainty about the petitioner’s guilt or
innocence. Instead, the petitioner must show that, in light of the new evidence, it is “more likely
than not any reasonable juror would have reasonable doubt.” Id. at 538. “‘[A]ctual innocence
means factual innocence, not mere legal insufficiency.’” Souter v. Jones, 395 F.3d 577, 590 (6th
Cir. 2005), quoting Bousley v. United States, 523 U.S. 614, 623 (1998).

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Petitioner’s actual innocence claim relates to the jury instruction claim raised in the
petition. Petitioner argues that he was denied the right to a properly instructed jury when the trial
court refused to instruct the jury on accessory after the fact. Petitioner claims that if the jury had
been so instructed, it is more likely than not that no reasonable juror would have convicted him.
However, a challenge to a jury instruction does not raise a claim of actual innocence under
Schlup.

See Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir.2003), (finding that

defendants who were convicted of conducting a continuing criminal enterprise were not actually
innocent merely because the trial court gave improper jury instructions); Stephens v. Herrera,
464 F.3d 895, 899 (9th Cir.2006) (“[T]he mere fact of an improper instruction is not sufficient to
meet the test for actual innocence.”);Muhammad v. United States, No. 2018 WL 442802, *8
(S.D. Miss. Jan. 16, 2018) (legal insufficiency of jury instructions fails to make a claim of actual
innocence); Gary v. Secretary, Florida Department of Corrections, 2017 WL 2834767, *5 (M.D.
Fl. June 30, 2017) (alleged error in jury instructions is not “new evidence” that could be
proffered as support for an actual innocence claim under Schlup because the alleged error
occurred during trial and could have been discovered at the time). Petitioner’s claim of actual
innocence is unsupported by new evidence of any type. Accordingly, the Court finds that the
limitation period is not equitably tolled so as to excuse the untimely filing of this petition.
III.
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must be issued. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate
of appealability may be issued “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the
merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable

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jurists would find the district court’s assessment of the constitutional claim debatable or wrong.
See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying
that standard, a district court may not conduct a full merits review, but must limit its examination
to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37. “The
district court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
Having considered the matter, the Court concludes that the petitioner has failed to make a
substantial showing of the denial of a constitutional right. Accordingly, a certificate of
appealability is not warranted in this case.
IV.
Accordingly, it is ORDERED that Respondent’s Motion to Dismiss (ECF No. 4) is
GRANTED.
It is further ORDERED that the petition for a writ of habeas corpus, ECF No. 1, is
DISMISSED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that Petitioner may proceed in forma pauperis on appeal because
an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 2, 2018

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 2, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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