Miller v. Ludwick
Filing
24
OPINION and ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS re 19 Amended Document Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RUDDENE MILLER,
Petitioner,
Civil Action No. 10-cv-10237
HON. BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE
v.
NICK LUDWICK,
Respondent.
____________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Ruddene Miller, (“petitioner”), confined at the Muskegon Correctional Facility in
Muskegon, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his pro se application, petitioner challenges his conviction for first-degree premeditated murder,
Mich. Comp. Laws § 750.316(1)(a); first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b);
and felony firearm, Mich. Comp. Laws § 750.227b.1 For the reasons stated below, the Court denies
the petition for writ of habeas corpus.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Wayne
County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1).
See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
1
Petitioner was also convicted of first-degree home invasion, but that conviction was
vacated at sentencing on Double Jeopardy grounds.
1
This case arises out of a shooting incident that resulted in the death
of Antoine Webb. The shooting occurred at the home of Brenda
Grissom, located at 9072 Burt Road, Detroit, Michigan, in the early
evening of October 3, 2005. Defendant’s girlfriend, Veronica
Driskill, lived directly across the street from Grissom, at 9079 Burt
Road. On October 3, 2005, defendant visited Driskill’s home to work
on a van. Witnesses heard a gun shot from the Driskill home as they
sat on the front porch of the Grissom home. They then saw Webb run
from the Driskill’s backyard to the Grissom home. Defendant and
another man, who was only identified as Marshall, chased Webb.
Webb ran to the Grissom porch and entered the Grissom home.
Witnesses saw defendant with a weapon. Defendant and Marshall
then forced the front door open to follow Webb. Two gunshots were
heard from inside the Grissom home. Then, defendant dove out a
screen window, ran back to the Driskill home and drove off in a van.
Defendant denied shooting Webb. Instead, he claimed that Webb and
Marshall had exchanged swear words in the van at the Driskill
garage, and a defense witness testified that he saw Marshall shoot
Webb in the van. Defendant claimed he chased Webb to protect
Webb from Marshall. Defendant also asserted that Marshall stuck the
gun inside the door jam and shot twice.
Officers obtained a warrant to search the residence where the
defendant was located. Defendant was arrested in his home on March
25, 2006. Defendant had been hiding in the attic.
People v. Miller, No. 276589, * 1-2 (Mich.Ct.App. June 5, 2008).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 482 Mich. 1035; 757
N.W.2d 89 (2008); reconsideration den. 483 Mich. 884; 759 N.W.2d 375 (2009). On January 13,
2010, petitioner filed a petition for writ of habeas corpus. 2 On May 26, 2011, the petition was held
in abeyance by this Court’s predecessor, the Honorable Lawrence P. Zatkoff, so that petitioner could
return to the state court to exhaust additional claims. The case was administratively closed.
2
Under the prison mailbox rule, this Court will assume that petitioner actually filed his
habeas petition on January 13, 2010, the date that it was signed and dated. See Towns v. U.S.,
190 F. 3d 468, 469 (6th Cir. 1999).
2
Petitioner filed a post-conviction motion for relief from judgment, which was denied.
People v. Miller, No. 06-4925-01 (Wayne County Circuit Court, June 14, 2012). The Michigan
appellate courts denied petitioner leave to appeal. People v. Miller, No. 311163 (Mich.Ct.App. April
25, 2013); lv. Den. 495 Mich. 899, 839 N.W.2d 480 (2013).
On June 11, 2014, Judge Zatkoff issued an order lifting the stay, reinstating
petitioner’s habeas petition, and granted petitioner permission to file an amended habeas petition.3
In his original habeas petition, petitioner sought habeas relief on the following
grounds:
Ground One: Petitioner’s conviction for home invasion, premeditated
murder and felony murder must be reversed and dismissed, as the
prosecution failed to present legally sufficient evidence that . . . he
was either the principle to or an aider and abettor, in violation of his
right to due process of law.
Supplemental Ground One: Trial counsel rendered ineffective
assistance when faili[n]g to challenge the illegality of petitioner’s
arrest and for not filing pretrial motions to suppress fruits of illegal
arrest which violated petitioner’s U.S. Fourth Amendment right
against illegal search and seizure.
Supplemental Ground One-B: Petitioner’s mother lived in a two story
flat apart[m]ent. Petitioner contests the warrantless search of his
residence where Petitioner lived in the upstairs apartment, which
contained two separate addresses defining two separate residence[s].
3
Respondent argues that petitioner’s amended habeas petition should be rejected
because petitioner failed to sign it. Although a district court may refuse to file, or may even
dismiss, an unsigned and unverified petition for writ of habeas corpus, the defect is one that
district court may, if it sees fit, disregard. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
1990). The Court declines to dismiss the amended petition on this basis. The Court also rejects
respondent’s argument that petitioner’s amended petition supersedes the claims contained in
petitioner’s original petition. When Judge Zatkoff lifted the stay, he ordered that the original
habeas petition be reopened. Although Judge Zatkoff permitted petitioner to file an amended
habeas petition, he did not specifically preclude petitioner from continuing to assert the claims
that he raised in his original petition.
3
Warrant was executed in the down stairs apartment, the police
entered the upstairs dwelling where they secured the petitioner.
Ground Two: Petitioner was deprived of his constitutional right to the
effective assistance of counsel where the predicate offense for felony
murder was home invasion and petitioner testified that he entered the
house to prevent the murder but counsel failed to request instructions
on the defenses of duress and defense of another.
Supplemental Ground Two: The prosecutor’s misconduct operated to
deny petitioner a fair trial.
Supplemental Ground Two-A: The prosecutor improperly vouched
for the credibility of his witnesses and gave his own opinion as to
petitioner’s guilt.
Supplemental Ground Two-B: The prosecutor’s misconduct deprived
petitioner of due process of law and a fair and impartial trial where
the prosecutor argued facts not in evidence.
Ground Three: The prosecutor violated petitioner’s state and federal
constitutional due process rights to a fair trial when he improperly
vouched for the credibility of his witnesses and expressed his opinion
that petitioner and his witnesses had lied. In the alternative, petitioner
was denied his right to effective assistance of counsel due to his trial
attorney's failure to object to the prosecutor's improper arguments.
Supplemental Ground Three: Petitioner’s trial counsel rendered
ineffective assistance for not calling known res gestae witness to
testify in petitioner’s favor.
Supplemental Ground Three-A: Trial counsel was in violation of
petitioner’s Sixth and Fourteenth Amend[me]nts, thereby, denying
petitioner due process, effective assistance of counsel, and the right
to present an effective appeal in his only appeal of right. Therefore
it is incumbent for this court to remand this case back to the trial
court for an evidentiary hearing.
In his amended habeas petition, petitioner seeks habeas relief on the following
grounds:
I. Defendant’s due process rights were violated and he is entitled to
a new trial based on newly discovered evidence, w[here] the
4
prosecutor knowingly used perjured testimony from Veronica
Driskill, whose testimony was b[ased] on intimidation and coercion.
II. Mr. Miller is entitled to a new trial where the public was excluded
from the courtroom and there was no accommodation for public
access to the procee[dings] of the trial process, during jury selection
and maybe other portions of the trial process which violated Mr.
Miller’s Sixth Amendment right to a public trial.
III. Defendant’s counsel was constitutionally ineffective when he
failed to object to the closure of the court room to the public.
IV. Mr. Miller was denied his Sixth and Fourteenth Amendment
rights to the effective assistance of appellate counsel where counsel’s
performance fell below objecti[v]e standards of reasonableness
resulting in prejudice.
V. Defendant Miller was deprived of his constitutional right to
effective assistance of counsel when his trial attorney (1) failed to
object to evidence of an anonymous tip identifying defendant as a
suspect; (2) failed to object to inadmissible hearsay on
confrontational grounds; (3) counsel’s failure to investigate and raise
issues of constitutional magnitude.
VI. Mr. Miller meets the cause and prejudice standard set forth in
6.508(D) by showing constitutionally ineffective assistance of both
trial and appellate counsel in violation of the Sixth Amendment right
to effective assistance of counsel, and the Fourteenth Amendment
Due Process Right Clause.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by 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
5
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.
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 confronts facts that are materially indistinguishable from relevant
Supreme Court precedent and arrives at a [opposite] result[.]” Williams v. Taylor, 529 U.S. 362,
405 (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 the relevant state-court decision applied clearly established federal law erroneously
or incorrectly.” Id. at 411.
The Supreme Court has explained that “[a] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal system.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential
standard for evaluating state-court rulings,’Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997), and
‘demands that state-court decisions be given the benefit of the doubt,’ Woodford v. Viscotti, 537
U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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) (citing 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 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
6
Furthermore, “[u]nder § 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.
III. Discussion
A. The sufficiency of evidence claims.
Petitioner first claims that there was insufficient evidence to convict him, either as
a principal or aider and abettor, of first-degree premeditated murder or first-degree felony murder.
It is beyond question that “the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). But “the critical inquiry
on review of the sufficiency of the evidence to support a criminal conviction . . . [is] whether the
record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to “ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id.
at 334 (quoting Woodby v. INS, 385 U.S. 276, 282 (1966)). “Instead, the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319
(citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). “‘Circumstantial evidence alone is
sufficient to support a conviction, and ‘[i]t is not necessary for the evidence at trial to exclude every
reasonable hypothesis except that of guilt.’” Johnson v. Coyle, 200 F. 3d 987, 992 (6th Cir. 2000)
(quoting United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999)).
7
More importantly, “a federal court may not overturn a state court decision rejecting
a sufficiency of the evidence challenge simply because the federal court disagrees with the state
court. The federal court instead may do so only if the state court decision was ‘objectively
unreasonable.’” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (quoting Renico, 559 U.S. at 773).
“Because rational people can sometimes disagree, the inevitable consequence of this settled law is
that judges will sometimes encounter convictions that they believe to be mistaken, but that they must
nonetheless uphold.” Id. Therefore, for a federal habeas court reviewing the sufficiency of evidence
for a state court conviction, “the only question under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 132 S.Ct.
2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence or
redetermine credibility of the witnesses whose demeanor was observed at trial. Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). “It is the province of the factfinder . . . to weigh the probative
value of the evidence and resolve any conflicts in testimony.” Neal v. Morris, 972 F.2d 675, 679 (6th
Cir. 1992) (citing Jackson v. Virgina, 443 U.S. 307, 319 (1979)). A habeas court therefore must
defer to the fact finder for its assessment of the credibility of witnesses. Matthews v. Abramajtys,
319 F.3d 780, 788 (6th Cir.2003).
Petitioner initially argued that there was insufficient evidence to establish that the
killing was done with premeditation and deliberation. The Michigan Court of Appeals rejected
petitioner’s claim:
Defendant and Webb were together in Driskill’s backyard shortly
before Webb was killed. A shot was fired in Driskill’s backyard.
Then, Webb ran across the street to Grissom’s porch. He was visibly
unharmed, but yelling for help to Ashley Hampton and Necolas
8
Cooper, who sat on Grissom’s porch. Without permission, Webb
barricaded himself inside Grissom’s front door. Defendant and
Marshall chased Webb to the porch. Hampton observed that
defendant wore a basketball jersey and had a gun. Although Cooper
could not identify defendant, he testified that the man wearing the
jersey was armed. Defendant and Marshall forced Grissom’s door
open. Seconds later, more shots were fired. Webb subsequently died
as a result of two gunshot wounds, one to the head and one to the
abdomen.
Defendant’s pursuit of Webb across the street to Grissom’s home and
his concerted effort to force Grissom’s door open can also be used to
infer that the defendant had time to take a “second look.” Further,
defendant’s actions following Webb’s murder are consistent with
premeditation. After the shooting, defendant escaped through
Grissom’s window and ran across the street to Webb’s van, in which
he and an unidentified passenger sped away. Later, defendant called
Driskill to check on Webb’s status and inform her that he was leaving
town, suggesting consciousness of guilt. Defendant also hid from
police in an attic when they arrived at his home with an arrest
warrant. Viewed in a light most favorable to the prosecution, this
evidence is sufficient to establish premeditation beyond a reasonable
doubt.
Miller, Slip. Op. at * 2 (internal citations omitted).
To constitute first-degree murder in Michigan, the state must establish that a
defendant’s intentional killing of another was deliberated and premeditated. See Scott v. Elo, 302
F. 3d 598, 602 (6th Cir. 2002) (citing People v. Schollaert, 194 Mich. App. 158 (1992)). “The
elements of premeditation and deliberation may be inferred from the circumstances surrounding the
killing.” See Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D. Mich. 2001). Premeditation may
be established through evidence of the following factors:
1. the prior relationship of the parties;
2. the defendant’s actions before the killing;
3. the circumstances of the killing itself;
4. the defendant’s conduct after the homicide.
People v. Anderson, 209 Mich. App. 527, 537 (1995).
9
Although the minimum time required under Michigan law to premeditate “‘is
incapable of exact determination, the interval between initial thought and ultimate action should be
long enough to afford a reasonable man time to subject the nature of his response to a ‘second
look.’” See Williams v. Jones, 231 F. Supp. 2d 586, 594-95 (E.D. Mich. 2002) (quoting People v.
Vail, 393 Mich. 460, 469 (1975)). “A few seconds between the antagonistic action between the
defendant and the victim and the defendant’s decision to murder the victim may be sufficient to
create a jury question on the issue of premeditation.” Alder v. Burt, 240 F. Supp. 2d 651, 663 (E.D.
Mich. 2003). “[A]n opportunity for a ‘second look’ may occur in a matter of seconds, minutes, or
hours, depending upon the totality of the circumstances surrounding the killing.” Johnson, 159 F.
Supp. 2d at 596 (quoting People v. Berthiaume, 59 Mich. App. 451, 456 (1975)).
The Michigan Court of Appeals’ conclusion that there was sufficient evidence of
premeditation was reasonable. The fact that petitioner pursued after the victim with a gun and then
shot him would support a finding of premeditation and deliberation so as to support a first-degree
murder conviction. See, e.g., Daniels v. Burke, 83 F.3d 760, 766 (6th Cir. 1996). The victim
received two gunshot wounds, one to the right side of the head and another through the abdomen.
Under Michigan law, “deliberation and premeditation may be logically inferred from . . . the wounds
inflicted upon vital parts” of the victim’s body. See Lundberg v. Buchkoe, 338 F. 2d 62, 69 (6th Cir.
1964). Further, the fact that petitioner did not attempt to seek medical help for the victim after he
was shot could lead a rational trier of fact to conclude that petitioner acted with premeditation and
deliberation when he killed the victim. See Delisle v. Rivers, 161 F. 3d 370, 389 (6th Cir. 1998)
(finding circumstantial evidence of premeditation due to petitioner’s failure to help victims after car
drove into lake). Finally, there was also evidence that petitioner fled the scene and was later found
10
hiding in his mother’s house when the police came looking for him. The fact that petitioner
attempted to elude the police after the shooting would also support a finding of premeditation and
deliberation. See, e.g., Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004).
There was also sufficient evidence to convict petitioner of felony murder. Under
Michigan law, the elements of first-degree felony murder are:
(1) the killing of a human being,
(2) with the intent to kill, to do great bodily harm, or
to create a very high risk of death or great bodily
harm with knowledge that death or great bodily harm
was the probable result,
(3) while committing, attempting to commit, or
assisting in the commission of any of a set of
specifically enumerated felonies.
Matthews v. Abramajtys, 319 F. 3d at 789 (citing to People v. Carines, 460 Mich. 750, 759 (1999)).
The underlying felony in this case was first-degree home invasion. “Michigan’s firstdegree home invasion statute includes all of the elements of the burglary of a dwelling, but also
requires that the defendant be armed with a dangerous weapon or that the dwelling be occupied.”
See Johnson v. Warren, 344 F. Supp. 2d 1081, 1093 (E.D. Mich. 2004) (citing United States v.
Garcia-Serrano, 107 Fed. Appx. 495, 496-97 (6th Cir. 2004)). The intent element “may reasonably
be inferred from the nature, time and place of defendant’s acts before and during the breaking and
entering” of the dwelling. See People v. Uhl, 169 Mich. App 217, 220 (1988).
Petitioner claims that he lacked the requisite intent to commit the underlying felony
of first-degree home invasion, because he entered the Grissom home under duress to save the victim
from Marshall. In rejecting this claim, the Michigan Court of Appeals ruled that there was sufficient
evidence to disprove petitioner’s duress theory, in light of the fact that petitioner carried a firearm,
11
chased the victim side-by-side with Marshall, and forced open Grissom’s door to reach the victim.
Miller, Slip. Op. at * 3. This Court agrees that when viewed in a light most favorable to the
prosecution, there was sufficient evidence for a rational trier of fact to conclude that petitioner
committed the offense of felony murder.
Petitioner further contends that there was insufficient evidence to establish the
identity of the shooter in this case. Petitioner, however, was charged under alternate theories of
being the principal or an aider and abettor. In rejecting petitioner’s claim, the Michigan Court of
Appeals ruled:
A reasonable jury could have found that Marshall was the principal
and defendant was an aider and abettor to Webb’s murder.
Defendant’s witnesses claimed that Marshall shot at Webb in
Driskill’s backyard. Then, both men entered Grissom’s home before
the subsequent shots. No witnesses observed the shooting. However,
defendant testified that Marshall shot at Webb through Grissom’s
door. Even if Marshall was the shooter, there was evidence that
defendant’s acts encouraged and assisted Marshall. Defendant
carried a gun. Defendant chased after Webb, side by side with
Marshall. Both men also struggled to open Grissom’s door to reach
Webb. After Webb was killed, defendant sped away with an
unidentified occupant in Webb’s van. Defendant’s knowledge of
Marshall’s intent could be inferred from the assistance he provided
to Marshall. Therefore, there was also sufficient evidence to convict
defendant of premeditated first-degree murder as an aider and abettor.
Miller, Slip. Op. at * 3.
To support a finding under Michigan law that a defendant aided and abetted in the
commission of a crime, the prosecutor must show that:
(1) the crime charged was committed by the defendant or some other
person,
(2) the defendant performed acts or gave encouragement that assisted
the commission of the crime, and
(3) the defendant intended the commission of the crime or knew that
the principal intended to commit the crime at the time he gave aid and
12
encouragement.
Riley v. Berghuis, 481 F. 3d 315, 322 (6th Cir. 2007) (citing Carines, 460 Mich. at 757-58).
The Michigan Court of Appeals’ conclusion that there was sufficient evidence to
convict petitioner as an aider and abettor was reasonable. Petitioner chased after the victim, side-byside with Marshall. Petitioner was armed with a firearm at the time. Petitioner forced open
Grissom’s door to reach the victim. After the victim was murdered, petitioner fled the scene in the
victim’s van. Petitioner later told his girlfriend that he was leaving town. The Michigan Court of
Appeals’ determination that there was sufficient evidence to convict petitioner of these crimes was
an objectively reasonable application of clearly established federal law, where there was compelling
evidence that petitioner, at a minimum, aided and abetted Marshall in the murder. See Dillard v.
Prelesnik, 156 F. Supp. 2d 798, 808-09 (E.D. Mich. 2001).
To the extent that petitioner challenges the credibility of the prosecution witnesses,
he would not be entitled to relief. “‘[A]ttacks on witness credibility are simply challenges to the
quality of the government’s evidence and not to the sufficiency of the evidence.’” Martin v.
Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002) (citing United States v. Adamo, 742 F.2d 927, 935 (6th
Cir. 1984)). An assessment of the credibility of witnesses is generally beyond the scope of federal
habeas review of sufficiency of evidence claims. Schlup v. Delo, 513 U.S. 298, 330 (1995). The
mere existence of sufficient evidence to convict therefore defeats a petitioner’s claim. Id. Thus,
petitioner is not entitled to habeas relief on his first claim.
B. The ineffective assistance of counsel claims.
Petitioner next claims that he was denied the effective assistance of counsel. To show
that he was denied the effective assistance of counsel under federal constitutional standards, a
13
defendant must satisfy a two pronged test. First, the defendant must demonstrate that, considering
all of the circumstances, counsel’s performance was so deficient that the attorney was not
functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466
U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance. Id. In other words,
petitioner must overcome the presumption that, under the circumstances, the challenged action might
be “sound trial strategy.” Id. at 689. “Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at 687. To demonstrate prejudice, the defendant must show
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “Strickland’s test for prejudice is a demanding
one. ‘The likelihood of a different result must be substantial, not just conceivable.’” Storey v.
Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562 U.S. at 112). The Supreme
Court’s holding in “Strickland places the burden on the defendant [who raises a claim of ineffective
assistance of counsel], not the State, to show a ‘reasonable probability’ that the result would have
been different” but for counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S.
15, 27 (2009).
More importantly, on habeas review, “[t]he question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but whether
that determination was unreasonable— a substantially higher threshold.’” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal
question is whether the state court’s application of the Strickland standard was unreasonable. This
is different from asking whether defense counsel’s performance fell below Strickland’s standard.”
14
Harrington, 562 U.S. at 101. Indeed, “because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Knowles, 556 U.S. at 123 (citing Yarborough, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland claim brought by
a habeas petitioner. Id. This means that on habeas review of a state court conviction, “[a] state court
must be granted a deference and latitude that are not in operation when the case involves review
under the Strickland standard itself.” Harrington, 562 U.S. at 101. “‘Surmounting Strickland's high
bar is never an easy task.’” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner initially argued that his counsel was ineffective for failing to request jury
instructions on the defenses of duress and defense of another person. The Michigan Court of
Appeals rejected petitioner’s claim:
Defendant did not establish the elements of duress in this case.
Rather, defendant claims that Marshall threatened Webb and
defendant entered Grissom’s home to protect Webb. However,
because the threat was directed at Webb, not defendant, a reasonable
person would not fear death or serious bodily harm in this situation.
Therefore, trial counsel’s failure to request a [duress] instruction,
inapplicable to the facts, does not constitute ineffective assistance of
counsel. People v Truong, 218 Mich App 325, 341; 553 NW2d 692
(1996).
***
Defendant’s testimony presented some facts to support a defense of
others instruction. He testified that he only went into Grissom’s
house to “to stop anything that was going on” because he “wouldn’t
let nothing happen to nobody I wouldn’t want to happen to myself.”
He claimed that he jammed Marshall’s hand in the door to protect
Webb. He also testified that he did not intend to commit any offenses
when he entered Grissom’s house.
Despite these facts, trial counsel’s failure to request an instruction on
the defense of others did not prejudice defendant so that he was
15
deprived of a fair trial. Grant, supra at 485-486. The trial court
instructed the jury that it could find defendant guilty of first-degree
home invasion only if he entered the home with the intent to inflict
injury upon an individual. The jury is presumed to follow the trial
court’s instructions. People v Graves, 458 Mich 476, 486; 581 NW2d
229 (1998). If the jury believed defendant’s testimony that he was
trying to protect Webb, and only entered Grissom’s home to stop
Marshall, it would not have convicted him of first-degree home
invasion. Presumably, however, the jury found testimony that
defendant chased Webb side by side with Marshall, carried a gun, and
forced Grissom’s door open to be sufficient to prove defendant’s
intent for the home invasion conviction. Therefore, we conclude that
defendant’s trial counsel’s failure to request an instruction on defense
of others did not deprive defendant of a fair trial.
Miller, Slip. Op. at * 4-5.
The Supreme Court “has never required defense counsel to pursue every claim or
defense, regardless of its merit, viability, or realistic chance for success.” Knowles, 556 U.S. at 123.
While it is true that the right to act in self-defense includes the right to defend another person,
Johnigan v. Elo, 207 F. Supp. 2d 599, 609 (E.D. Mich. 2002) (citing People v. Curtis, 52 Mich. 616,
622 (1884)), Michigan courts have repeatedly held that duress is not a defense to homicide. See,
e.g., People v. Gimotty, 216 Mich. App. 254, 257 (1996); People v. Dittis, 157 Mich.App. 38, 41
(1987); see also Gimotty v. Elo, 40 Fed. Appx. 29, 33 (6th Cir. 2002). There is nothing in Michigan
caselaw which would prohibit the state courts “from extending the rationale behind excluding duress
as a defense in homicide cases” to the felony charge underlying the felony murder count, which
resulted in death. Gimotty, 40 Fed. Appx. at 33. Because duress is not a defense to first-degree
premeditated or felony murder in Michigan or to the felony underlying the charge of felony murder,
counsel was not ineffective for failing to request an instruction on duress.
The Michigan Court of Appeals’ conclusion that defense counsel’s failure to request
a defense of other instruction did not prejudice defendant was a reasonable application of Strictland.
16
The testimony in this case established that petitioner chased after the victim side-by-side with
Marshall, was armed with a weapon, and forced open Grissom’s door before going inside, where
the victim was shot twice. Petitioner did not remain at the scene to assist the victim but fled the
scene in the victim’s van. Petitioner told his girlfriend after the shooting that he was leaving town.
The police subsequently found petitioner hiding in the attic of his mother’s house. Based on this
testimony, a trier of fact would not likely have believed that petitioner was merely attempting to
defend the victim from Marshall, therefore, counsel’s failure to request a jury instruction on defense
of others was not prejudicial.
Petitioner next claims that trial counsel was ineffective for failing to move to suppress
evidence that petitioner was found by the police to be hiding in the attic at the time of his arrest,
claiming that such evidence was the fruit of an unlawful search of his mother’s house. In rejecting
this argument, the Michigan Court of Appeals stated:
There is no evidence in the lower court record to substantiate
defendant’s claims. Rodriguez, supra at 38. An arrest warrant carries
with it the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within. See People
v Gillam, 479 Mich 253, 260-261; 734 NW2d 585 (2007). Here, a
felony arrest warrant was issued well before defendant’s arrest and
Officer Ronald Hopp was informed that defendant was inside the
home. The police had authority to enter defendant’s home; therefore,
his arrest was lawful. Consequently, a motion to suppress evidence
obtained from a lawful arrest would have been futile and defendant’s
trial counsel’s failure to make such a motion was not ineffective.
People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003)
(counsel renders effective assistance even if counsel fails to raise
futile objections).
Miller, Slip. Op. at * 4.
The Michigan Court of Appeals’ conclusion that defense counsel’s failure to move
to suppress the evidence did not prejudice petitioner was a reasonable application of Strictland. The
17
police, via the felony arrest warrant, had authority to enter petitioner’s home and seize evidence.
Any motion to suppress evidence from this lawful arrest would have been futile. Petitioner has
therefore not been prejudiced by defense counsel’s failure to raise a futile motion to suppress.
Moreover, “[w]here defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principal allegation of ineffectiveness, the defendant must also prove that his
Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict
would have been different absent the excludable evidence in order to demonstrate actual prejudice.”
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). “An illegal arrest, without more, has never
been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.” United
States v. Crews, 445 U.S. 463, 474 (1980) (citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975)).
Further, the Supreme Court has held that “[t]he ‘body’ or identity of a defendant or respondent in
a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it
is conceded that an unlawful arrest, search, or interrogation occurred.” INS v. Lopez-Mendoza, 468
U.S. 1032, 1039 (1984). Although the exclusionary rule prohibits the introduction at trial of
evidence that was seized in violation of Fourth Amendment to the U.S. Constitution, a criminal
defendant “is not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive the
Government of the opportunity to prove his guilt through the introduction of evidence wholly
untainted by the police misconduct.” Crews, 445 U.S. at 474.
Petitioner does not identify any evidence other than his own body that was seized
during this allegedly unlawful arrest. A police officer’s observations of a defendant which are used
to establish the defendant’s consciousness of guilt cannot be considered the suppressible fruit of an
illegal arrest or search. See U.S. v. Foppe, 993 F. 2d 1444, 1448-50 (9th Cir. 1993). Because a
18
motion to suppress evidence that petitioner had been hiding at the time of arrest would have been
futile, the Michigan Court of Appeals’ conclusion that petitioner was not prejudiced by counsel’s
failure to file such a motion was reasonable.
Petitioner finally alleges that trial counsel failed to investigate and call as res gestae
witnesses Deborah Coleman, Keira Miller, Senita Upshaw, and alibi witness, Mercedes Steffer. The
Michigan Court of Appeals rejected this claim:
There is no evidence in the lower court record that Coleman, Miller,
or Upshaw were present during the shooting, or its aftermath, to add
relevant testimony. Similarly, there is no evidence in the lower court
record, or defendant’s brief, regarding Steffer or defendant’s alleged
alibi. Given that there was no evidentiary hearing and no factual
support concerning Coleman, Miller, Upshaw or Steffer’s alleged
testimony, there are no mistakes apparent on the record with respect
to counsel’s failure to call these witnesses. Thus, defendant is unable
to establish an ineffective assistance of counsel claim as it relates to
the purported alibi or res gestae testimony.
Miller, Slip. Op. at * 6.
Petitioner has attached to his original petition affidavits from Deborah Coleman and
Keira Miller, who claim that they were present at the time of petitioner’s arrest and that the police
did not have a search warrant nor had been given consent by petitioner’s mother to enter the home.
In light of the fact that petitioner’s identity and the police officers’ observations of him could not
have been suppressed as fruits of an illegal arrest, petitioner was not prejudiced by counsel’s failure
to call either woman to testify. Moreover, the Michigan Court of Appeals’ conclusion that defense
counsel’s failure to call these witnesses did not prejudice petitioner was reasonable because the
record provides no evidence that Coleman and Miller were present during the shooting, or its
aftermath.
With respect to Senita Upshaw and Mercedes Steffer, petitioner has failed to present
19
any evidence, either to the Michigan courts or to this Court, concerning their proposed testimony.
By failing to present any evidence to the state courts in support of his ineffective assistance of
counsel claim, petitioner is not entitled to an evidentiary hearing on this claim with this Court, “as
he has barred himself from developing the claim further.” Cooey v. Coyle, 289 F. 3d 882, 893 (6th
Cir. 2002) (citing 28 U.S.C. § 2254(e)(2)(A)(ii)). Petitioner has failed to attach any offer of proof
or any affidavits sworn by these two proposed witnesses. Petitioner has offered, neither to the
Michigan courts nor to this Court, any evidence beyond his own assertions as to whether the
witnesses would have been able to testify and what the content of these witnesses’ testimony would
have been. In the absence of such proof, petitioner is unable to establish that he was prejudiced by
counsel’s failure to call these witnesses to testify at trial, so as to support the second prong of an
ineffective assistance of counsel claim. See Clark v. Waller, 490 F. 3d 551, 557 (6th Cir. 2007).
Thus, the Michigan Court of Appeals’ conclusion that petitioner was not entitled to relief on his
ineffective assistance of counsel claims was reasonable.
C. The prosecutorial misconduct claims.
Petitioner next claims that he was denied a fair trial because of prosecutorial
misconduct.4 “Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 512
(6th Cir. 2003)). Prosecutorial misconduct will form the basis for habeas relief only if the conduct
4
Respondent contends that petitioner’s prosecutorial misconduct claims are procedurally
defaulted because he failed to object to them at trial. Petitioner claims that trial counsel was
ineffective for failing to object to the alleged misconduct. Given that the cause and prejudice
inquiry for the procedural default issue merges with an analysis of the merits of petitioner’s
defaulted claims, it would be easier to consider the merits of these claims. See Cameron v.
Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
20
was so egregious as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). The determination whether
the trial was fundamentally unfair is “made by evaluating the totality of the circumstances
surrounding each individual case.” Angel v. Overberg, 682 F. 2d 605, 608 (6th Cir. 1982). The
Court must focus on “‘the fairness of the trial, not the culpability of the prosecutor.’” Pritchett v.
Pitcher, 117 F. 3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michi. Dep't of Corrs., 4 F.3d 1348,
1355 (6th Cir. 1993)). Finally, “the Supreme Court has clearly indicated that the state courts have
substantial breathing room when considering prosecutorial misconduct claims because
‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.’” Slagle
v. Bagley, 457 F. 3d 501, 516 (6th Cir. 2006) (quoting Donnelly, 416 U.S. at 645).
Petitioner first claims that the prosecutor improperly bolstered or vouched for
witnesses by arguing that certain prosecution witnesses had no reason to lie, as well as by arguing
that petitioner and two of his defense witnesses lied. The Michigan Court of Appeals rejected
petitioner’s argument:
During his closing argument, the prosecutor did not imply that he had
some special knowledge of the witnesses’ truthfulness. In fact, the
prosecutor made no comments at all about his personal knowledge or
beliefs. Instead, the prosecutor argued that Cooper and Hampton had
no reason to lie. He relied on evidence that defendant “had no issues
with them” and they were merely neighbors who observed the
incident. The prosecutor also argued that defendant, Hardy, and
Washington were not worthy of belief. Defendant’s testimony was
self-serving. Hardy did not report to the police her claim that
Marshall, not defendant, carried the gun. Similarly, Washington did
not contact authorities until the week of trial, after he had visited
defendant in jail several times. Further, Hardy’s and Washington’s
close relationships with defendant provided motivation to protect
him. Given that conflicting evidence made credibility important to
the prosecutor’s burden of proof in this case, his closing argument,
highlighting evidence of credibility, was not improper.
21
Miller, Slip. Op. at * 7.
“[A] prosecutor may not express a personal opinion concerning the guilt of the
defendant or the credibility of trial witnesses, because such personal assurances of guilt or vouching
for the veracity of witnesses by the [prosecutor] exceeds the legitimate advocate’s role by
improperly inviting the jurors to convict the defendant on a basis other than a neutral independent
assessment of the record proof.” Caldwell v. Russell, 181 F. 3d 731, 737 (6th Cir. 1999) (abrogated
on other grounds) (citing United States v. Carroll, 26 F.3d 1380, 1387-89 (6th Cir. 1994)).
However, a prosecutor “is free to argue that the jury should arrive at a particular conclusion based
upon the record evidence[.]” Id. “‘The test for improper vouching [for a witness] is whether the jury
could reasonably believe that the prosecutor was indicating a personal belief in the witness’
credibility.’” United States v. Causey, 834 F. 2d 1277, 1283 (6th Cir. 1987) (quoting United States
v. Dennis, 786 F.2d 1029, 1046 (11th Cir. 1986)). It is worth noting that the Sixth Circuit has never
granted habeas relief for improper vouching. Byrd v. Collins, 209 F. 3d 486, 537 n. 43 (6th Cir.
2000). A prosecutor does not engage in vouching by arguing that his witnesses have no reason or
motivation to lie, when such comments are based on the evidence and do not reflect a personal belief
of the prosecutor. See United States v. Jackson, 473 F. 3d 660, 672 (6th Cir. 2007).
The Michigan Court of Appeals concluded that the prosecutor’s argument that the
prosecution witnesses had no reason to testify falsely was based on reasonable inferences from the
evidence. In reaching this conclusion, the court noted that the prosecutor “relied on evidence that
defendant ‘had no issues with [the prosecution witnesses]’ and that they were merely neighbors who
observed the incident.” Miller, Slip. Op. at * 7. As such, the court found that petitioner was not
entitled to habeas relief on this claim. Further, the prosecutor’s argument that petitioner and his
22
witnesses should not be believed was based on inferences from the evidence presented in court and
not upon any personal knowledge. Because the prosecutor’s comment about the defense witnesses
being untruthful was based on the evidence presented in court, was only a small portion of the
prosecutor’s argument, and did not create the impression that the prosecutor knew of evidence not
presented to the jury, the prosecutor’s comments did not deprive petitioner of a fair trial. See
Cristini v. McKee, 526 F. 3d 888, 902 (6th Cir. 2008). Finally, the jury was instructed that the
lawyers’ statements and arguments were not evidence. This instruction by the court cured any
prejudice that may have arisen from any alleged improper vouching. Byrd, 209 F. 3d at 537.
Petitioner next contends that the prosecutor argued facts that were not supported by
the evidence by stating that both Cooper and Hampton testified that petitioner carried a gun, when
Cooper was unable to positively identify petitioner at trial. In rejecting this argument, the Michigan
Court of Appeals stated:
Hampton testified that defendant held a gun. Cooper could not
identify defendant at trial. Nevertheless, the evidence showed that
defendant wore a basketball jersey on the day of the shooting. Cooper
claimed that the person wearing the jersey carried the gun. Therefore,
it could be reasonably inferred from Cooper’s testimony that
defendant carried the gun and the prosecutor’s statement was not
improper. Bahoda, supra at 282.
Miller, Slip. Op. at * 6.
“Misrepresenting facts in evidence [by a prosecutor] can amount to substantial error
because doing so ‘may profoundly impress a jury and may have a significant impact on the jury's
deliberations.’” Washington v. Hofbauer, 228 F. 3d 689, 700 (6th Cir. 2000) (quoting Donnelly, 416
U.S. at 646)). Likewise, “it is improper for a prosecutor, during closing arguments, to bring to the
23
attention of the jury any ‘purported facts that are not in evidence and are prejudicial.’” Byrd, 209
F. 3d at 535 (quoting United States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)). “However,
prosecutors ‘must be given leeway to argue reasonable inferences from the evidence.’” Id. (quoting
United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)).
In the present case, the Michigan Court of Appeals’ conclusion that the prosecutor
argued inferences rooted in the evidence was a reasonable application of law. Although Cooper did
not positively identify petitioner at trial, he testified that the person carrying the gun wore a jersey.
Evidence showed that petitioner was wearing a jersey at the time of the shooting. See Miller, Slip.
Op. at * 6. Because it could be reasonably inferred from Cooper’s testimony that petitioner carried
a gun, the prosecutor’s remarks were not misleading. Moreover, the prosecutor’s remarks were also
ameliorated by the trial court’s instruction that the lawyers’ comments and statements were not
evidence. See Hamblin v. Mitchell, 354 F. 3d 482, 495 (6th Cir. 2003).
Because the prosecutor’s comments did not deprive petitioner of a fundamentally fair
trial, petitioner is unable to establish counsel was ineffective for failing to object to these remarks.
Slagle, 457 F. 3d at 528. Petitioner is not entitled to habeas relief on his third claim.
D. Petitioner’s remaining claims are barred by the statute of limitations.
Respondent contends that petitioner’s remaining six claims5 which he raised for the
first time in his amended petition for writ of habeas corpus are barred by the one-year statute of
limitations contained within 28 U.S.C. § 2244(d)(1) because the amended petition was filed more
than one year after petitioner’s conviction became final and the claims raised in the amended petition
5
Labeled I though VI in petitioner’s amended petition.
24
do not relate back to the claims raised by petitioner in his original habeas petition.6
Under the AEDPA, a one-year statute of limitations shall apply to an application for
writ of habeas corpus by a person in custody pursuant to a judgment of a state court. See Corbin v.
Straub, 156 F. Supp. 2d 833, 835 (E.D. Mich. 2001). The one-year statute of limitations shall run
from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) 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 petition for writ of habeas corpus must be dismissed where it has not been filed
6
The Court recognizes that Judge Zatkoff granted petitioner permission to file the
amended habeas petition. This does not preclude respondent from raising a statute of limitations
defense to these claims. A statute of limitations defense to a habeas petition is not
“jurisdictional,” thus, courts “are under no obligation to raise the time bar sua sponte.” Day v.
McDonough, 547 U.S. 198, 205 (2006). Judge Zatkoff granted petitioner permission to amend
his habeas petition without making any determination as to the timeliness issue. The fact that
Judge Zatkoff granted petitioner permission to file his amended petition does not preclude
respondent from raising a limitations defense to the claims raised in the amended petition. See
Quatrine v. Berghuis, No. 2:10–CV–11603; 2014 WL 793626, * 2-3 (E.D. Mich. February 27,
2014);Soule v. Palmer, No. 08–cv–13655; 2013 WL 450980, * 1-3 (E.D. Mich. February 5,
2013). Although respondent could have filed an opposition to petitioner’s motion to amend his
petition, he was not required to do so under Fed. R. Civ. P. 8 until he filed an answer to the
amended petition. See Young v. Greiner, No. 9:02-CV-1087; 2008 WL 5432219, * 9 (N.D.N.Y.
December 30, 2008).
25
within the one-year statute of limitations. See Holloway v. Jones, 166 F. Supp. 2d 1185, 1187 (E.D.
Mich. 2001). Petitioner’s direct appeal of his conviction ended when the Michigan Supreme Court
denied petitioner’s motion for reconsideration of their decision to deny his application for leave to
appeal on January 27, 2009. See McClendon v. Sherman, 329 F.3d 490, 493 (6th Cir. 2003).
However, the one-year statute of limitations under 28 U.S.C. § 2244(d)(1) did not begin to run on
that day. Where a state prisoner has sought direct review of his conviction in the state’s highest
court but does not file a petition for certiorari with the U.S. Supreme Court, the one-year limitation
period for seeking habeas review under 28 U.S.C. § 2244(d)(1) begins to run not on the date that the
state court entered judgment against the prisoner, but on the date that the 90-day time period for
seeking certiorari with the U.S. Supreme Court expired. See Jimenez v. Quarterman, 555 U.S. 113,
119 (2009). Petitioner’s judgment therefore became final on April 27, 2009, when he failed to file
a petition for writ of certiorari with the U.S. Supreme Court. See Holloway, 166 F. Supp. 2d at 1188.
Petitioner filed his original habeas petition on January 13, 2010, after two hundred and sixty one
days had elapsed under the one-year limitations period. Petitioner had one hundred and four days
remaining under the one-year statute of limitations, or until April 27, 2010. Petitioner did not file
his first motion to stay and abey the petition until July 13, 2010, almost three months after the
limitations period had elapsed. This motion did not even delineate the claims that petitioner wished
to raise in an amended habeas petition. It was not until March 15, 2011, that petitioner filed a
motion to amend the habeas petition in which he sought to add four new claims for relief to his
petition.
When a habeas petitioner files an original petition within the one-year deadline, and
later presents new claims in an amended petition that is filed after the deadline passes, the new
26
claims will relate back to the date of the original petition only if the new claims share a “common
core of operative facts” with the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005).
None of petitioner’s remaining claims that he raised for the first time in his amended
habeas petition share a “common core of operative facts” with the claims raised in his timely filed
original habeas petition.7 Although petitioner alleged ineffective assistance of counsel and
prosecutorial misconduct in his original habeas petition, the ineffective assistance of counsel and
prosecutorial misconduct claims that he raises in his amended habeas petition cannot relate back to
the filing date of his original habeas petition, because these claims do not share a common core of
operative facts with the ineffective assistance of counsel and prosecutorial misconduct claims that
he raised in the original habeas petition. See Eller v. Bock, 422 F. Supp. 2d 813, 818 (E.D. Mich.
2006). Because none of petitioner’s remaining claims raised in the amended petitions share a
common core of operative facts with the claim raised in the original petition, these claims are barred
by the one-year limitations period. See Pinchon v. Myers, 615 F. 3d 631, 643 (6th Cir. 2010).
The Court recognizes that petitioner alleges in the first claim in his amended habeas
petition that he has newly discovered evidence that Veronica Driskill committed perjury.
Pursuant to 28 U.S.C.§ 2244(d)(1)(D), the AEDPA’s one-year limitations period
begins to run from the date upon which the factual predicate for a claim could have been discovered
through due diligence by the habeas petitioner. See Ali v. Tennessee Board of Pardon & Paroles,
431 F. 3d 896, 898 (6th Cir. 2005). Ms. Driskill signed her affidavit recanting her trial testimony
on July 17, 2007. Under § 2244(d)(1)(D), the one-year limitations period begins to run when a
7
To the extent that petitioner may have raised in his amended habeas petition any claims
that were duplicative of the claims raised in his original petition, these claims, of course, would
not be barred by the AEDPA’s statute of limitations.
27
witness executes an affidavit recanting his or her trial testimony. See Daniels v. Uchtman, 421 F.
3d 490, 491 (7th Cir. 2005). Because petitioner was aware of Ms. Driskill’s alleged recantation
before his state court appeals had been finalized, Ms. Driskill’s affidavit did not delay the
commencement of the one-year limitations period.
The Court recognizes that two of petitioner’s claims in his amended petition are based
on Presley v. Georgia, 558 U.S. 209 (2010), in which the Supreme Court held that a criminal
defendant’s Sixth Amendment right to a public trial was violated when the trial court excluded the
public from the voir dire of prospective jurors.
28 U.S.C. § 2244(d)(1)(C) indicates that the one-year limitations period can run from
“the date on which the constitutional right asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review.”
The Supreme Court’s decision in Presley would not delay the commencement of the
limitations period. Indeed, “it has been well-established since at least 1984 that the closure of a
courtroom during jury selection may violate a defendant’s constitutional rights.” Silva v. Roden,
951 F. Supp. 2d 222, 226 (D. Mass. 2013) (citing Presley, 558 U.S. at 212-13). Because petitioner’s
right to a public trial was recognized prior to the Presley decision, § 2244(d)(1)(C) would not delay
the commencement of the limitations period until after the Presley decision was issued. Silva, 951
F. Supp. 2d at 226, n. 4.
The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate
cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A habeas “‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some
28
extraordinary circumstance stood in his way’” and prevented the timely filing of the habeas petition.
Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Sixth Circuit has observed
that “the doctrine of equitable tolling is used sparingly by federal courts.” See Robertson v. Simpson,
624 F. 3d 781, 784 (6th Cir. 2010). The burden is on the habeas petitioner to show that he or she
is entitled to the equitable tolling of the one-year limitations period. Id. Here, petitioner is not
entitled to the equitable tolling of the one-year limitations period because he has failed to argue or
show that the circumstances of his case warrant equitable tolling. See Giles v. Wolfenbarger, 239
Fed. Appx. 145, 147 (6th Cir. 2007).
The one-year statute of limitations may be equitably tolled based upon a credible
showing of actual innocence under the standard enunciated in Schup v. Delo, 513 U.S. 298 (1995).
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). The Supreme Court has cautioned that
“tenable actual-innocence gateway pleas are rare[.]” Id. “[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup,
513 U.S. at 329). For an actual innocence exception to be credible under Schlup, such a claim
requires a habeas petitioner to support his or her allegations of constitutional error “with new
reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324.
Petitioner’s case falls outside of the actual innocence tolling exception, because
petitioner has presented no new, reliable evidence to establish that he was actually innocent of the
crime charged. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005). Petitioner’s sufficiency
of evidence claims cannot be considered by this Court in determining whether an actual innocence
29
exception exists for purposes of tolling the statute of limitations period. Grayson v. Grayson, 185
F. Supp. 2d 747, 752 (E.D. Mich. 2002). Veronica Driskill’s recanting affidavit is likewise
insufficient to establish petitioner’s innocence, so as to toll the limitations period. “Recanting
affidavits and witnesses are viewed with extreme suspicion.” United States v. Chambers, 944 F. 2d
1253, 1264 (6th Cir. 1991). Petitioner has presented no evidence concerning the authenticity of
Driskill’s affidavit, the motivation of Driskill in signing the recanting affidavit, the circumstances
surrounding the affidavit’s execution, or its consistency with other evidence in the trial record.
Accordingly, Driskill’s alleged recantation is insufficient to establish that this is “‘an extraordinary
case’” in which tolling based on a claim of actual innocence would be appropriate. See Giles, 239
Fed. Appx. at 148. Moreover, because petitioner’s conviction was supported by the testimony of
additional witnesses, Driskill’s alleged recanting affidavit is insufficient to establish petitioner’s
actual innocence, so as to toll the one-year limitations period. See e.g. McCray v. Vasbinder, 499
F. 3d 568, 575 (6th Cir. 2007).
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also deny
a certificate of appealability to petitioner. In order to obtain a certificate of appealability, a prisoner
must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. W.J. Estelle, 463 U.S. 880, 893 n.4
(1983)). When a district court rejects a habeas petitioner's constitutional claims on the merits, the
30
petitioner must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims to be debatable or wrong. Id. Likewise, “[w]hen the district court denies a
habeas petition on procedural grounds without reaching the prisoner's underlying constitutional
claims, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id. “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.
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because petitioner has failed to make a substantial showing of the denial of a federal
constitutional right. See Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002). The Court will
also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Id.
31
V. Order
Based on the foregoing analysis,
IT IS ORDERED that the petition for a writ of habeas corpus is denied with
prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
IT IS FURTHER ORDERED that petitioner is denied leave to appeal in forma
pauperis.
S/ Bernard A. Friedman________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: September 29, 2015
Detroit, Michigan
32
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