Hudson v. Howes
OPINION AND ORDER granting 11 Motion for Summary Judgment; granting 12 Motion for Summary Judgment; finding as moot 14 Motion TO OBJECT TO RESPONDENT'S ANSWER; DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY & DENYING APPLICATION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS.. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DAVID K. HUDSON, # 179401,
Case Number: 10-cv-11937
Honorable Patrick J. Duggan
OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT; (2) DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS; (3) DENYING AS MOOT PETITIONER'S MOTION TO
OBJECT TO RESPONDENT'S ANSWER; (4) DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY; AND (5) DENYING AN APPLICATION
FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
On May 13, 2010, David K. Hudson ("Petitioner"), a state prisoner currently
incarcerated at the Lakeland Correctional Facility in Coldwater, Michigan, filed this pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is
challenging the validity of his state criminal convictions in 1986 for first-degree felony
murder in violation of Michigan Compiled Laws § 750.316(1)(b) and felony firearm in
violation of Michigan Compiled Laws § 750.227b. Respondent Carol Howes
("Respondent") answered the petition with a motion for summary judgment, arguing that
the petition is barred by the one-year limitations period set forth in the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA" or
"the Act"). On April 8, 2011, Petitioner filed a “Motion to Object to Respondent's
Answer,” contending that Respondent failed to properly answer the petition and to
provide him with the necessary Rule 5 materials.
After reviewing the petition and Respondent's motion, the Court concludes that the
petition is untimely and therefore grants Respondent's motion for summary judgment.
Petitioner's objection to Respondent's “answer” is denied as moot because the production
of additional Rule 5 materials is not relevant to the issue of whether the petition was filed
in a timely manner. The Court also declines to issue Petitioner a certificate of
appealability and leave to proceed on appeal in forma pauperis.
The Michigan Court of Appeals summarized the facts underlying Petitioner's
convictions and, in accordance with 28 U.S.C. § 2254(e)(1), these facts are presumed
correct on habeas review. The facts are as follows:
On the night of January 28, 1984, at approximately 10:45 p.m., 19-year-old
Evette Jones was driving home in her red Ford EXP sports car. She had just
dropped off a friend on Detroit's northwest side. When she stopped for a
stop sign at Ferguson and Grove Street, her car was struck from behind by a
Roslyn Montgomery and her husband Lorenzo, who lived at 16757
Ferguson, heard a loud bump and looked out a window of their home. They
saw Jones get out of her car to inspect the damage caused by the collision,
while the driver of the green car opened his trunk. Mrs. Montgomery then
saw the driver of the green car pull a gun out of his jacket and point it at
Jones. A struggle ensued, with Jones eventually being forced into the trunk
of the green car. The driver of the green car then got behind the wheel of
Jones['s] car and another man, not seen previously, was seen at the wheel of
the green car. Both cars pulled away. The Montgomerys then called the
A short time later, Renee Himelhoch, who was babysitting in a home on
Pierce Street in Southfield, heard a noise that sounded like gunshots. She
looked outside a window and saw two cars, a green car parked behind a
smaller darker car. Two men were attempting to slam the trunk shut on the
green car. They both then left in the smaller car. Within seconds a woman
emerged from the trunk, screaming for help. Himelhoch then called the
After she told the police that the men who shot her had taken her car, Jones
was taken to the hospital. Jones had been shot five times and remained in
intensive care until she died on February 9, 1984.
Subsequently, in the pre-dawn hours of January 29, 1984, Jones['s] car was
spotted on Pacific Street in Detroit. Fresh footprints in the snow led to a
two-flat house at 4542/4538 Pacific. A tracking dog was taken to the scene,
and it led police to the Pacific address. A search warrant was obtained.
Several officers served the warrant. Both defendants were arrested in the
upper flat. Initially, a woman's purse and long guns were seized. However,
following statements made by defendants, two weapons were found on the
premises along with boots that matched the footprints in the snow. One of
the weapons subsequently seized was shown at trial to be the gun used in
People v. Hudson, No. 92011, at *1-3 (Mich. Ct. App. Sept. 16, 1987).
On February 7, 1986, a jury in the Circuit Court for Oakland County, Michigan,
convicted Petitioner of the above-stated charges. The trial court sentenced Petitioner to
life in prison for the first-degree murder conviction and the mandatory two years in prison
for the felony-firearm conviction.
Petitioner filed a direct appeal with the Michigan Court of Appeals on April 21,
1986. On September 16, 1987, the Court of Appeals affirmed his convictions and
sentences. See Hudson, No. 92011. Despite Petitioner's claim to the contrary, there is no
record of an application for leave to appeal filed with the Michigan Supreme Court.1
In 2007, Petitioner filed a motion for relief from judgment with the trial court
pursuant to Michigan Court Rule 6.508(D). The trial court denied the motion on
November 1, 2007. People v. Hudson, No. 84-062537-FC (Oakland Cnty. Cir. Court,
Nov. 1, 2007). Petitioner filed a motion for reconsideration, which the trial court denied
on January 10, 2008. People v. Hudson, No. 84-062537-FC (Oakland Cnty. Cir. Court,
Jan. 10, 2008).
Petitioner filed a delayed application for leave to appeal the trial court's decision
with the Michigan Court of Appeals, which the appellate court denied on April 2, 2009.
People v. Hudson, No. 288872 (Mich. Ct. App. Apr. 2, 2009). His motion for
reconsideration was denied on May 12, 2009. People v. Hudson, No. 288872 (Mich. Ct.
App. May 12, 2009).
Petitioner filed an application for leave to appeal with the Michigan Supreme
Court, which the Court denied on January 29, 2010, finding that "defendant has failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v.
Hudson, 485 Mich. 1074, 777 N.W.2d 176 (Mich. 2010). Petitioner filed a motion for
reconsideration, which the Michigan Supreme Court denied on April 27, 2010. People v.
Hudson, 486 Mich. 904, 780 N.W.2d 817 (Mich. 2010).
Petitioner filed the pending petition for a writ of habeas corpus on May 13, 2010,
Petitioner claims that the Michigan Supreme Court denied this “letter request” on April
4, 1988. (Pet. at 4.)
signed and dated May 4, 2010, in which he raises several challenges to the validity of his
state court conviction.
A. Standard for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, Summary judgment is appropriate
"if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The central
inquiry is "whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).
The movant has the initial burden of showing "the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).
Once the movant meets this burden, the nonmoving party must present evidence
demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). To demonstrate a genuine
issue, the nonmoving party must present sufficient evidence upon which a jury could
reasonably find for that party; a "scintilla of evidence" is insufficient. See Liberty Lobby,
477 U.S. at 252, 106 S. Ct. at 2512. The court must accept as true the non-movant's
evidence and draw "all justifiable inferences" in the non-movant's favor. See id. at 255,
106 S. Ct. at 2513.
Rule 56 applies to habeas proceedings. See Rule 12 of the Rules Governing
§ 2254 Cases; see also Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011) (citing
Maynard v. Dixon, 943 F.2d 407, 412 (4th Cir. 1991)).
B. Statute of Limitations Analysis
The AEDPA applies to all habeas petitions filed after the Act's effective date of
April 24, 1996. See Allen v. Yukins, 366 F.3d 396, 399 (6th Cir.2004) (citing Lindh v.
Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059 (1997)). The Act imposes a one-year
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest 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;
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;
the date on which the constitutional right asserted was
originally 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
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
28 U.S.C. § 2244 (d). A petitioner whose conviction became final before the AEDPA’s
effective date of April 24, 1996, is entitled to a one-year grace period (i.e. until April 24,
1997) to file a habeas petition. See Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999),
vacated on other grounds, 530 U.S. 1257, 120 S. Ct. 2715 (2000).
Petitioner's conviction became final prior to April 24, 1996.2 Petitioner does not
base his request for habeas relief on a constitutional right newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review. 28
U.S.C. § 2244(d)(1)(C). He also does not claim that State action prevented him from
filing a timely application. Id. § 2244(d)(1)(B). Finally, none of Petitioner's grounds for
relief are predicated on facts discovered since his trial.3 See 28 U.S.C. § 2244(d)(1)(D).
Thus, absent statutory or equitable tolling, Petitioner was required to file his federal
habeas petition on or before the expiration of the AEDPA's April 24, 1997 grace period.
As indicated earlier, the Michigan Court of Appeals affirmed Petitioner’s convictions
and sentences on September 16, 1987. Petitioner contends that the Michigan Supreme Court
denied his letter request seeking leave to appeal on April 4, 1988. Despite the absence of
anything in the record evidencing Petitioner’s filing of this “letter request,” the Court will
assume this allegation to be true for purposes of deciding Respondent’s summary judgment
motion, particularly because it has no impact on whether Petitioner’s habeas petition is timely.
Petitioner does not claim that he filed a petition for writ of certiorari in the United States
Supreme Court; thus, his conviction became final ninety days after April 4, 1988 (the expiration
of the period for filing such a petition), or July 3, 1988. See Bronaugh v. Ohio, 235 F.3d 280,
283 (6th Cir. 2000).
In his petition, Petitioner asserts that he obtained newly discovered evidence consisting
of a letter to his mother from his trial counsel indicating that the latter neglected to convey a plea
offer to Petitioner. (Pet. at 8, Ex. 1.) None of the claims presented in Petitioner’s application for
habeas relief, however, are based on facts discovered through this letter. Further, it appears from
the statements in the petition that Petitioner obtained the letter in September 2008. (See Pet. at
12.) Thus he was required to file any claims based on the facts in the letter by September 2009.
See 28 U.S.C. § 2244(d)(1)(D).
i. Statutory Tolling
Pursuant to the AEDPA's statute of limitations, "the one-year limitation period is
tolled for 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.'" Ege
v. Yukins, 485 F.3d 364, 371-72 (6th Cir. 2007) (quoting 28 U.S.C. § 2244(d)(2)).
Petitioner filed his federal habeas petition more than thirteen years after the AEDPA’s
grace period expired. Because Petitioner did not file his applications for state postconviction review until after the expiration of the AEDPA’s one-year grace period, those
applications have no effect on the tolling of the statute of limitations. 28 U.S.C.
§ 2244(d)(2); see also Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000); Winkfield
v. Bagley, 66 Fed. App'x 578, 581 (6th Cir. 2003) (citing Webster to hold that “[o]nce the
limitations period is expired, collateral petitions can no longer serve to avoid a statute of
limitations.”) Petitioner's belated post-conviction review in state court did not re-start the
limitations period. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).
ii. Equitable Tolling
The United States Supreme Court has held that habeas petitions are subject to
equitable tolling by the court. Holland v. Florida, – U.S. – , 130 S. Ct. 2549, 2560
(2010). Under Holland, a habeas petitioner is entitled to equitable tolling "if he shows
‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814 (2005)). The petitioner bears the
burden of demonstrating that equitable tolling is appropriate. Griffin v. Rogers, 308 F.3d
647, 653 (6th Cir. 2002). In this case, Petitioner fails to satisfy either requirement.
The Sixth Circuit also has found equitable tolling appropriate "where an otherwise
time-barred habeas petitioner can demonstrate that it is more likely than not that no
reasonable juror would have found him guilty beyond a reasonable doubt . . .” Souter v.
Jones, 395 F.3d 577, 602 (6th Cir. 2005). When that is the case, the court has held that
“the petitioner should be allowed to pass through the gateway and argue the merits of his
underlying constitutional claims." Id. This 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 accounts, or critical physical
evidence– that was not presented at trial." Id. at 590 (quoting Schlup v. Delo, 513 U.S.
298, 324, 115 S. Ct. 851, 865 (1995)). Actual innocence means "factual innocence, not
mere legal insufficiency." Id. (quoting Bousley v. United States, 523 U.S. 614, 623, 118
S. Ct. 1604, 1611 (1998)). Petitioner fails to present new reliable evidence to support his
actual innocence claim.
For the above reasons, the Court concludes that Petitioner is not entitled to
Petitioner’s convictions became final before the AEDPA’s effective date and,
therefore, he was required to file his application for habeas corpus relief before the Act’s
April 24, 1997 grace period expired. Petitioner failed to do so and he is not entitled to
statutory or equitable tolling of the limitations period. As a result, his petition is barred
by the statute of limitations set forth in the AEDPA, Respondent's motion for summary
judgment is granted, and Petitioner's habeas petition is dismissed.
A district court is required to "issue or deny a certificate of appealability when it
enters a final order adverse to the applicant." Rule 11(a) of the Rules Governing § 2254
Cases (2010); see also Fed. R. App. P. 22(b) (“If an appeal is taken by the applicant, the
district judge who rendered the judgment shall either issue a certificate of appealability or
state the reasons why such a certificate should not issue.”) Pursuant to the AEDPA, “[a]
certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
"[W]hen the district court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim," as this Court has just decided, a
certificate of appealability should issue under § 2253(c)(2), "if 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." Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595, 1604. "Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further." Id. "In such a circumstance, no appeal would be
warranted." Id. Accordingly, the Court declines to issue Petitioner a certificate of
appealability, because reasonable jurists would not find it debatable whether this Court
was correct in determining that Petitioner had filed his habeas petition outside of the
one-year limitations period.
Typically, a party "permitted to proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis without further authorizations."
However, the Court denies Petitioner leave to appeal in forma pauperis because any
appeal would be frivolous. Fed. R. App. P. 24(a)(3) (2009).
IT IS ORDERED, that Respondent's motion for summary judgment is
IT IS FURTHER ORDERED, that Petitioner's petition for a writ of habeas
corpus is DENIED;
IT IS FURTHER ORDERED, that the Court DECLINES to issue Petitioner a
certificate of appealability and DENIES him an application for leave to appeal in forma
IT IS FURTHER ORDERED, that Petitioner's Motion to Object to Respondent's
Answer to Petition for Writ of Habeas Corpus, Order to Show Cause and Request for
Production of Documents is DENIED AS MOOT.
Date: June 6, 2011
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
David K. Hudson, # 179401
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036
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