Myers v. Berghuis

Filing 14

ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABIITY AND LEAVE TO APPEAL IN FORMA PAUPERIS re 1 Petition for Writ of Habeas Corpus filed by William Myers, 12 MOTION for Summary Judgment and Dismissal of Petition for Writ of Habeas Corpus and Brief in Support filed by Mary Berghuis. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM MYERS, # 417331,
Petitioner,

Civil No. 2:10-CV-12931
HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

v.
MARY BERGHUIS,

Respondent,
__________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF
HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
William Myers, (“Petitioner”), confined at the Brooks Correctional Facility in Muskegon
Heights, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In
his pro se application, petitioner challenges his conviction for assault with intent to commit murder,
M.C.L.A. 750.83; assault with intent to commit great bodily harm, M.C.L.A. 750.84; felon in
posession of a firearm, M.C.L.A. 750.224f; and felony-firearm, M.C.L.A. 750.227b. Respondent
has filed a motion for summary judgment on the ground that the petition was not timely filed in
accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). For the reasons
stated below, the petition for a writ of habeas corpus is summarily dismissed.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Wayne County
Circuit Court. Petitioner’s direct appeals with the Michigan courts ended on March 23, 2009, when
the Michigan Supreme Court denied him leave to appeal following the affirmance of his conviction
by the Michigan Court of Appeals. People v. Meyers, a/k/a William Myers, 483 Mich. 915; 762

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N.W. 2d 479 (2009).
On May 18, 2010, petitioner filed a petition for writ of habeas corpus with this Court, which
was dismissed without prejudice on June 17, 2010, on the ground that petitioner had failed to
exhaust his state court remedies with respect to some of his claims. Meyers v. Berghuis, U.S.D.C.
No. 10-CV-12003; No. 2010 WL 2507777 (E.D. Mich. June 17, 2010).
On July 21, 2010, petitioner filed the current petition for writ of habeas corpus with this
Court. 1
II. Discussion
Under the Antiterrorism and Effective Death Penalty Act (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. The one year statute of limitation 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 within the
one year statute of limitations. See Holloway v. Jones, 166 F. Supp. 2d 1185, 1187 (E.D. Mich.
2001).
1

Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas petition on
July 21, 2010, the date that it was signed and dated, despite the fact that it was filed with this Court on July 26, 2010.
See e.g. Brown v. McKee, 232 F. Supp. 2d 761, 764, n. 1 (E.D. Mich. 2002).

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Petitioner’s direct appeals with the Michigan courts were completed on March 23, 2009,
when the Michigan Supreme Court denied his application for leave to appeal. Petitioner’s
conviction therefore became final, for purposes of § 2244(d)(1), when the ninety day time period
for filing a petition for writ of certiorari in the United States Supreme Court expired. See Bronaugh
v. Ohio, 235 F. 3d 280, 283 (6th Cir. 2000). Petitioner’s judgment became final on June 21, 2009,
when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. See Thomas v.
Straub, 10 F. Supp. 2d 834, 835 (E.D. Mich. 1998). Absent tolling of the limitations period,
petitioner would have been required to file his petition for writ of habeas corpus with this Court no
later than June 21, 2010 in order for the petition to be timely.
Petitioner filed his first petition for writ of habeas corpus with this Court on May 18, 2010,
which was dismissed without prejudice on June 17, 2010, because the petition contained claims
which had not been exhausted with the state courts. The statute of limitations expired in this case
four days later on June 21, 2010. Unless petitioner’s first habeas petition somehow tolled the
limitations period, the current habeas petition is untimely.
Although a petition for federal habeas review is not “an application for state post-conviction
or other review” within the meaning of 28 U.S.C. § 2244(d)(2) that would toll the one year statute
of limitations period, See Duncan v. Walker, 533 U.S. 167, 181 (2001), Justice Stevens indicated
in a concurring opinion that neither the Supreme Court’s “narrow holding” in Duncan nor anything
in the text or the legislative history of the AEDPA would prevent a federal court from tolling the
limitations period for a habeas petition as “a matter of equity.” Id. at 183.
The Sixth Circuit has indicated that a habeas petitioner is entitled to equitable tolling of the
limitations period during the time that his original habeas petition was filed in the federal court,

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provided that the habeas petitioner filed his state post-conviction motion with the state courts within
thirty days of the federal court’s dismissal of the original habeas petition and returned to federal
court no later than thirty days after the conclusion of state post-conviction review. See Griffin v.
Rogers, 308 F. 3d 647, 653 (6th Cir. 2002)(citing Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir.
2002)).
This Court dismissed petitioner’s first habeas petition on June 17, 2010. Petitioner did not
file his current petition for writ of habeas corpus until July 21, 2010, some thirty four days later.
Because petitioner did not re-file this habeas petition within thirty days of the dismissal of his first
habeas petition, he is not entitled to equitable tolling of the limitations period for the time that his
original habeas petition was pending in the federal court. Palmer, 276 F. 3d at 781-82; See also
Godbolt v. Russell, 82 Fed. Appx. 447, 452 (6th Cir. 2003). Because the statute of limitations
expired on June 21, 2010, the instant petition is untimely.
The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate cases.”
Holland v. Florida, 130 S. Ct. 2549, 2560 (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 extraordinary
circumstance stood in his way’” and prevented the timely filing of the habeas petition. Id. at 2562
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner is not entitled to equitable
tolling of the one year limitations period, because he has failed to argue that circumstances of his
case warranted equitable tolling. See Giles v. Wolfenbarger, 239 Fed. Appx. 145, 147 (6th Cir. 2007).
The Sixth Circuit held that 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). See Souter v. Jones, 395 F. 3d 577, 599-600 (6th Cir. 2005). To establish actual

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innocence, “a petitioner must show that it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.” Id. at 590 (quoting Schlup 513 U.S. at
327). For an actual innocence exception to be credible, such a claim requires a habeas 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.” Schlup, 513 U.S. at 324; Souter, 395 F. 3d at 590. The Sixth Circuit further noted
that “actual innocence means factual innocence, not mere legal insufficiency.” Souter, 395 F. 3d at
590 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Finally, the Sixth Circuit in
Souter recognized the Supreme Court’s admonition that the actual innocence exception should
“remain rare” and “only be applied in the ‘extraordinary case.’” Id. (quoting Schlup, 513 U.S. at
321).
In his habeas application, petitioner contends that the in-court identification of petitioner by
one of the victims, Jerry Myers, as his assailant was tainted because he only identified petitioner
after purportedly looking at a prior photograph of petitioner on the Internet from the Michigan
Department of Corrections’ Offender Tracking Information System (“OTIS”). Petitioner also claims
that his counsel was ineffective for failing to call two different witnesses, Cindy Blakey and Yousif
Alareeki, to testify about the possibility of other suspects having been involved in the shooting, or
in the alternative, to move for the admission of their statements into evidence.
Jerry Myers positively identified petitioner in court as his assailant, testifying that he was
at arms length from petitioner when he was shot. (Tr. 2/20/2007, pp. 182-83, 188). The victim
acknowledged that after receiving information off the street about petitioner’s nickname, he looked
him up on the Internet on OTIS and identified petitioner from his photograph at this website. The

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victim further acknowledged that he had previously been unable to pick petitioner out of a police
photographic lineup. (Id. at pp. 195-97).
Petitioner claims that Cindy Blakey observed four different white men get out of the van
driven by the victim’s assailant, which he argues would call into question the testimony of the two
victims of this case that only two men, petitioner and his co-defendant, were involved in the assaults.
Blakey’s statement 2 does not appear to contradict the two victims’ testimony. Blakey claims that
she observed a green van pull up with “two white guys” inside of it and a burgundy van pull up with
“two white guys in it.” Blakey then informed the police that “[A]ll four people got out [of] the
vans.” Blakey’s statement about four people refers to the two men in the one van and the two men
in the second van and does not contradict the victims’ testimony.
Yousif Alareeki 3 told the police that he observed an unknown black male exit the burgundy
van that the assailants were driving. 4 Alareeki stated that he then saw a second unknown male,
whom he did not identify by race, exit the van and join in the shooting. Alareeki could not identify
the shooter as he only saw the top of his head and his arm holding a gun.
The Sixth Circuit has previously rejected a similar actual innocence argument as grounds for
tolling the limitations period. See Whalen v. Randle, 37 Fed.Appx. 113, 116, 121 (6th
Cir.2002)(rejecting actual innocence tolling argument where evidence included testimony by another
participant in the robberies who claimed that petitioner was not his accomplice, an affidavit from
a witness who said that the prosecutor took witnesses to improperly view petitioner for later

2

See Petitioner’s Exhibit C.

3

See Petitioner’s Exhibit D.

4

Both petitioner and his co-defendant are white.

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identification purposes, and a supplemental police report that had never been turned over to the
defense containing an interview with a friend of the petitioner’s who would have exonerated him
and would have identified the perpetrator as the same man that the participant in the robberies would
have identified).
Jerry Myers positively identified petitioner as his assailant. Cindy Blakey’s testimony was
not inconsistent with the trial testimony of the victims. Although Yousif Alareeki identified one of
the participants in the shooting as being a black male, he did not identify the race of the second man
who took part in the shooting, nor did he get a good look at this man. Alareeki’s statement does not
rule out petitioner’s involvement in this shooting. Although equitable tolling based on a habeas
petitioner’s actual innocence remains an important, though “extraordinary,” remedy, it is one that
a court should “refuse to provide in a less-than-extraordinary case” like petitioner’s. See McCray
v. Vasbinder, 499 F.3d 568, 577 (6th Cir. 2007).
The Court will dismiss the petition for writ of habeas corpus with prejudice. The Court will
also deny a certificate of appealability. 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 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, 483-84 (2000). When a district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claims, a certificate of appealability should issue,
and an appeal of the district court’s order may be taken, if the petitioner shows that jurists of reason
would find it debatable whether the petitioner states a valid claim of the denial of a constitutional

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right, and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling. Id. When 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 petition should be allowed to proceed further. In such a
circumstance, no appeal would be warranted. 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.
The Court will deny 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. See Grayson v. Grayson, 185 F. Supp. 2d
747, 753 (E.D. Mich. 2002). The Court will also deny petitioner leave to appeal in forma pauperis,
because the appeal would be frivolous. Myers v. Straub, 159 F. Supp. 2d 621, 629 (E.D. Mich.
2001).
III. ORDER
Accordingly, the Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE
PURSUANT TO 28 U.S.C. § 2244(d)(1).
The Court further DENIES a certificate of appealability and leave to appeal in forma
pauperis.

s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: April 11, 2011

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on April 11, 2011.

s/Marie E. Verlinde
Case Manager
[phone]

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