Brayboy v. Napel
MEMORANDUM OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus; declining to issue a certificate of appealability or leave to appeal in forma pauperis Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 2;11-CV-11021
HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Gary Brayboy, (“petitioner”), confined at the Marquette Branch Prison in
Marquette, 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 one count of
first-degree murder, M.C.L.A. 750.316; one count of assault with intent to do great bodily
harm less than murder, M.CL.A. 750.84; four counts of armed robbery, M.C.L.A.
750.529; one count of felony-firearm, M.C.L.A. 750.227b; and being a fourth felony
habitual offender, M.C.L.A. 769.12. Petitioner has also filed a motion for equitable
tolling of the the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). Respondent
has filed a motion for summary judgment, contending that the petition was not timely
filed in accordance with this statute of limitations. Petitioner has filed a reply to the
motion for summary judgment. For the reasons stated below, petitioner’s application for
a writ of habeas corpus is summarily dismissed.
Petitioner was convicted of the above offenses following a jury trial in the Detroit
Recorder’s Court. Direct review of petitioner’s conviction ended in the Michigan courts
on February 28, 1997, when the Michigan Supreme Court denied petitioner leave to
appeal following the affirmance of his conviction on his appeal of right by the Michigan
Court of Appeals. People v. Brayboy, 454 Mich. 866, 560 N.W.2d 633 (1997).
On July 21, 1998, petitioner filed a motion for clarification of the order of
restitution, which he contends was wrongly re-characterized as a motion for relief from
judgment and denied by the trial court on September 28, 1998. 1 On June 18, 1999,
petitioner filed a motion for transcripts at state expense, which he again contends was
wrongly re-characterized as a motion for relief from judgment and denied by the trial
court on August 25, 1999. 2
On March 13, 2009, petitioner filed what he contends was his first post-conviction
motion for relief from judgment. The trial judge treated the motion as a successive
motion for relief from judgment, but permitted it to be filed on the ground that petitioner
was alleging that he had newly discovered evidence that would permit the filing of a
successive motion for relief from judgment pursuant to M.C.R. 6.502(G)(2).
See People v. Brayboy, Case No. 93-002544-01-FC (Third Judicial Circuit of Michigan), Register of
Actions, p. 5 [This Court’s Dkt. # 18-1].
Id. at p. 6.
Nonetheless, the trial judge denied the post-conviction motion as being without merit. See
People v. Brayboy, No. 93-002544-01-FC (Wayne County Circuit Court, June 2, 2009). 3
After the Michigan Court of Appeals denied petitioner’s post-conviction appeal, See
People v. Brayboy, No. 293550 (Mich.Ct.App. December 3, 2009), collateral review of
petitioner’s conviction ended in the state courts on June 28, 2010 when the Michigan
Supreme Court denied petitioner leave to appeal from the denial of his post-conviction
motion, on the ground that petitioner’s motion was prohibited by M.C.R. 6.502(G).
People v. Brayboy, 486 Mich. 1043; 783 N.W.2d 339 (2010).
Petitioner’s habeas application is signed and dated March 3, 2011. 4
The Court will grant respondent’s motion for summary judgment, because the
petition for writ of habeas corpus has not been filed within the one year statute of
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Sanders v. Freeman, 221 F. 3d 846, 851 (6th Cir.
In 1996, the Michigan Legislature abolished the Detroit Recorder’s Court and merged its functions with
the Wayne County Circuit Court. See Anthony v. Michigan, 35 F. Supp. 2d 989, 996-97 (E.D. Mich. 1999).
Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas petition on
March 3, 2011, the date that it was signed and dated, despite the existence of some evidence that it may have been
filed later with this Court. See Neal v. Bock, 137 F. Supp. 2d 879, 882, n. 1 (E.D. Mich. 2001).
2000)(quoting Fed. R. Civ. P. 56(c)). To defeat a motion for summary judgment, the
non-moving party must set forth specific facts sufficient to show that a reasonable
factfinder could return a verdict in his favor. Id.
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
(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).
The Michigan Supreme Court denied petitioner’s application for leave to appeal on
February 28, 1997. 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, 129 S. Ct. 681, 685 (2009).
Petitioner’s judgment therefore became final on May 29, 1997, 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 state collateral review, petitioner would
have been required to file his petition for writ of habeas corpus with this Court no later
than May 29, 1998 in order for the petition to be timely filed.
Petitioner filed a motion to clarify the order of restitution with the trial court on
July 21, 1998, which was denied on September 28, 1998. Petitioner subsequently filed a
motion to request transcripts on June 18, 1999, which was denied on August 25, 1999.
These two motions were apparently re-characterized by the trial court as motions for
relief from judgment. Petitioner contends in his habeas application that the trial court
erred in re-characterizing these two motions as motions for relief from judgment, because
he was not attacking his conviction in these motions. 5 Respondent suggests that if these
motions were not being used to attack petitioner’s conviction, then they should not toll
the limitations period pursuant to 28 U.S.C. § 2244(d)(2). This Court agrees.
28 U.S.C. § 2244 (d)(2) expressly provides that the time during which a properly
filed application for state post-conviction relief or other collateral review is pending shall
See Brief in Support of Petition for Writ of Habeas Corpus, p. 10.
not be counted towards the period of limitations contained in the statute. See Corbin v.
Straub, 156 F. Supp. 2d 833, 836 (E.D. Mich. 2001). In Wall v. Kholi, 131 S. Ct. 1278,
1285 (2011), the Supreme Court held that the term “collateral review,” as used in § 2244
(d)(2), refers to a judicial reexamination of a judgment or a claim in a proceeding outside
of the direct review process. In so ruling, the Supreme Court quoted with approval the
First Circuit’s definition in the lower court decision in Kholi that “‘review’ commonly
denotes ‘a looking over or examination with a view to amendment or improvement.’” Id.
(internal quotation omitted).
In the present case, petitioner acknowledges that he did not seek judicial review of
his conviction in either of these first two motions, in that he did not seek a judicial
reexamination of the judgment of conviction. In particular, petitioner’s motion for
production of transcripts would not qualify as an application for post-conviction or
collateral review so as to toll the limitations period pursuant to 28 U.S.C. § 2244(d)(2).
See e.g. May v. Workman, 339 F. 3d 1236, 1237 (10th Cir. 2003); Lancaster v. Alameida,
51 Fed. Appx. 765, 766 (9th Cir. 2002). Petitioner’s motion to clarify the order of
restitution and his motion for production of transcripts did not toll the limitations period
pursuant to § 2244(d)(2).
Petitioner filed what he contends was his first motion for relief from judgment on
March 13, 2009, after the one year limitations period had expired. A state court
post-conviction motion that is filed following the expiration of the limitations period
cannot toll that period pursuant to 28 U.S.C. § 2244(d)(2) because there is no period
remaining to be tolled. See Hargrove v. Brigano, 300 F. 3d 717, 718, n. 1 (6th Cir. 2002);
see also Jurado v. Burt, 337 F. 3d 638, 641 (6th Cir. 2003). Therefore, petitioner’s state
post-conviction proceedings did not toll the running of the statute of limitations. 6
Petitioner claims that he has newly discovered evidence of wrongdoing by the
Detroit Police Department, Homicide Division, in the form of newspaper articles from the
Detroit Free Press, which he argues would toll the limitations period. 7
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 and Paroles, 431 F. 3d 896, 898 (6th Cir. 2005).
The Sixth Circuit has suggested that the provisions of 28 U.S.C. § 2244(d)(1)(D)
should be decided on a claim-by-claim basis, rather than with respect to all of the claims
contained within the petition. See Ege v. Yukins, 485 F. 3d 364, 373-74 (6th Cir. 2007)(§
2244(d)(1)(D) did not delay the commencement of the limitations period with respect to
petitioner’s ineffective assistance of counsel claim, but delayed the commencement of the
limitations period for petitioner’s due process claim, when the factual predicate of that
Even if petitioner’s motion to clarify restitution and his motion to produce transcripts could be
considered collateral attacks on his conviction, his petition would still be untimely because he filed these motions on
July 21, 1998 and June 18, 1999, after the one year limitations period had expired. Moreover, even if petitioner’s
motion for relief from judgment which had been filed on March 13, 2009 constituted a properly filed second or
successive motion for relief from judgment under M.C.R. 6.502(G)(2), this would not toll the limitations period
because it was likewise filed in the state court after the expiration of limitations period. See Parker v. Renico, 105
Fed. Appx. 16, 18 (6th Cir. 2004).
See Appendix B, attached to the Petition for Writ of Habeas Corpus.
claim was discovered at a later date); See also DiCenzi v. Rose, 452 F. 3d 465, 469-70 (6th
Cir.2006)(holding that statute of limitations on claim that state appellate court improperly
denied a motion for delayed appeal under 28 U.S.C. § 2244(d)(1)(D) began on a different
date than did the claims that related to issues that occurred at sentencing); Jackson v.
Hofbauer, No. 2007 WL 391405, * 8 (E.D. Mich. January 31, 2007(§ 2244(d)(1)(D)
applied on a claim-by-claim basis).
The Supreme Court has not specifically addressed whether the provisions of 28
U.S.C. § 2244(d)(1)(D) should be applied to the entire habeas application or decided on a
claim-by-claim basis. However, in dicta in Pace v. DiGuglielmo, 544 U.S. 408, 416, n. 6
(2005), the Supreme Court indicated that § 2244(d)(1) provided one means of calculating
the limitation period with regard to the “application” as a whole, namely, §
2244(d)(1)(A)(date of final judgment), but noted that the three other subsections, §
2244(d)(1)(B), § 2244(d)(1)(C); and § 2244(d)(1)(D), required a claim-by-claim
consideration for calculating the limitations period. This Court is therefore required to
evaluate each of petitioner’s claims separately to determine whether the provisions of
Section 2244(d)(1)(D) would render any, or all, of the claims timely.
In the present case, petitioner has raised eight claims in his petition for writ of
habeas corpus. For the purpose of brevity, these claims are: 1) the Detroit Police
Department, Homicide Division suppressed investigation files that contained exculpatory
and/or material evidence; 2) petitioner was deprived of a fair trial when the prosecution
concealed the co-defendant’s criminal record; 3) the improper admission of prior bad acts
evidence in violation of M.R.E. 404(b); 4) the trial judge erred in failing to give an
instruction on the lesser included offense of felonious assault; 5) the trial judge gave
erroneous instructions regarding aiding and abetting; 6) prosecutorial misconduct; 7), the
sentence of life imprisonment without parole was improper, because petitioner was
convicted of being a fourth felony habitual offender; and 8) ineffective assistance of trial
and appellate counsel.
With the exception of petitioner’s first claim and arguably his second claim as
well, the newly discovered evidence of police misconduct on the part of the Detroit Police
Department has no connection to petitioner’s third through eighth claims. Because
petitioner’s third through eighth claims do not rest upon the newly discovered evidence of
alleged Detroit police corruption, this evidence cannot logically constitute a “factual
predicate” for petitioner’s third through eighth claims, as defined by § 2244(d)(1)(D),
thus, these claims are time-barred, regardless of whether the alleged police corruption in
this case would constitute newly discovered evidence with respect to petitioner’s first and
second claims. Ege, 485 F. 3d at 373.
With respect to petitioner’s first two claims, petitioner claims that he has newly
discovered evidence in the form of newspaper articles from the Detroit Free Press, which
he contends would support his first claim that the police and prosecutor withheld
evidence that would have been exculpatory, as well as his second claim that the
prosecutor concealed the prior criminal record of his co-defendant, Keith Griffin, who
had testified against petitioner at his trial in exchange for a plea bargain that allowed him
to plead guilty to a reduced charge of second-degree murder with a sentence agreement of
The time commences under § 2244(d)(1)(D) when the factual predicate for a
habeas petitioner’s claim could have been discovered through the exercise of due
diligence, not when it was actually discovered by a given petitioner. See Redmond v.
Jackson, 295 F. Supp 2d 767, 771 (E.D. Mich. 2003). Moreover, the time under the
AEDPA’s limitations period begins to run pursuant to § 2244(d)(1)(D) when a habeas
petitioner knows, or through due diligence, could have discovered, the important facts for
his or her claims, not when the petitioner recognizes the facts’ legal significance. Id.
Finally, “§ 2244(d)(1)(D) does not convey a statutory right to an extended delay while a
petitioner gathers every possible scrap of evidence that might support his claim.”
Redmond, 295 F. Supp. 2d at 771. “Rather, it is the actual or putative knowledge of the
pertinent facts of a claim that starts the clock running on the date on which the factual
predicate of the claim could have been discovered through due diligence, and the running
of the limitations period does not await the collection of evidence which supports the
facts, including supporting affidavits.” Id. at 772. A habeas petitioner has the burden of
proof in persuading a federal court that he or she exercised due diligence in searching for
the factual predicate of the habeas claims. See Stokes v. Leonard, 36 Fed. Appx. 801, 804
(6th Cir. 2002).
In the present case, petitioner has presented to this Court a number of newspaper
articles from the Detroit Free Press from 1997 and 1998, in which Investigator Monica
Childs of the Detroit Police Department, Homicide Division, the investigator in
petitioner’s murder case, suggested that the Homicide Division had engaged in a number
of unlawful practices, including suppressing homicide investigation files, committing
perjury, and coercing confessions from suspects. The last of these newspaper articles is
from September 9, 1998. Petitioner, claims, in a conclusory fashion, that he did not
become aware of this evidence until 2009.
Petitioner is not entitled to invoke the provisions of § 2244(d)(1)(D) to delay the
commencement of the one year limitations, because he has failed to offer any argument as
to why he could not have discovered these newspaper articles at an earlier date. The
newspaper articles do not constitute newly discovered evidence under § 2244(d)(1)(D)
because they were available to petitioner when they were published in the Detroit Free
Press. See Sorce v. Artuz, 73 F. Supp. 2d 292, 298 (E.D.N.Y. 1999). Petitioner has done
little to show, much less argue, that he exercised due diligence in obtaining these
newspaper articles, which were available in 1997 and 1998, therefore, § 2244(d)(1)(D)
does not save his first and second claims from being time-barred. See Townsend v. Lafler,
99 Fed. Appx. 606, 608-09 (6th Cir. 2004). Petitioner’s argument is further undercut by
his indication in his petition that he had previously contacted the United States
Department of Justice about these alleged police improprieties as early as 2003, and that
he had contacted Sheryl Robinson-Wood, the primary independent monitor of the Detroit
Police Department in 2004, about his concerns that his rights had been violated by Detroit
Police Homicide Investigator Monica Childs and Wayne County Prosecutor Ruth Carter.
Petitioner further claims that he contacted Judge Julian Abele Cook, Jr. about these
allegations in 2006, but that Judge Cook refused to take any action. 8 Because petitioner
knew about the factual predicate of his claim by 2006, at the very latest, his current
habeas petition, which was filed some five years later, is untimely.
Petitioner’s argument suffers from another problem, namely, that he has not
established in his first and second claims that the police or prosecutor withheld
exculpatory evidence. Suppression by the prosecution of evidence favorable to the
defendant upon request violates due process, where the evidence is material to either guilt
or punishment of the defendant, irrespective of the good or bad faith of the prosecution.
Brady v. Maryland, 373 U.S. 83, 87 (1963). The burden is on a habeas petitioner to prove
that evidence that is required to be disclosed to him under Brady was not disclosed to
him. See Coe v. Bell, 161 F. 3d 320, 344 (6th Cir. 1998). Allegations that are merely
conclusory or which are purely speculative cannot support a Brady claim. Burns v. Lafler,
328 F. Supp. 2d 711, 724 (E.D. Mich. 2004). “[M]ere speculation that a government file
may contain Brady material is not sufficient” to prove a due-process violation. United
States v. Driscoll, 970 F. 2d 1472, 1482 (6th Cir. 1992), abrogated on other grounds by
Hampton v. United States, 191 F.3d 695 (6th Cir.1999).
With respect to his first claim, petitioner merely speculates that the Detroit Police
Department and the Wayne County Prosecutor withheld evidence that would have been
See Brief in Support of Petition for Writ of Habeas Corpus, p. 17.
favorable to him. This is insufficient to establish a Brady violation. With respect to his
second claim, petitioner contends that the prosecutor withheld evidence concerning his
co-defendant Keith Griffin’s prior criminal record that petitioner alleges he could have
used to impeach Griffin’s credibility with. Petitioner, however, acknowledges that at trial
Griffin indicated that he was testifying against petitioner in exchange for a plea
agreement that allowed him to plead guilty to a reduced charge of second-degree murder
with a sentence of 7-20 years, in exchange for the dismissal of the remaining charges. In
the present case, there was no Brady violation, in light of the fact that evidence
concerning Griffin’s prior convictions was cumulative of other evidence that was used to
impeach him and would have been only marginally relevant. See Puertas v. Overton, 168
Fed. Appx. 689, 696 (6th Cir. 2006). 9
In light of the fact that petitioner’s newly discovered evidence does not establish
that the police or prosecutor withheld exclupatory evidence in this case, the
commencement of the limitations period was not delayed until petitioner “discovered”
this new evidence. See e.g. Whalen v. Randle, 37 Fed. Appx. 113, 119 (6th Cir.
Petitioner claims that Griffin had a prior conviction for carrying a concealed weapon and prior charges of
possession of a controlled substance under 25 grams and possession of marijuana, which were dismissed at the time
that Griffin pleaded guilty to the carrying a concealed weapon charge. Under Michigan law, “prior convictions for
nontheft crimes which do not contain elements of dishonesty or false statement should never be admitted into
evidence” for impeachment purposes. Johnson v. Hofbauer, 159 F. Supp. 2d 582, 608 (E.D. Mich. 2001)(quoting
People v. Allen, 429 Mich. 558, 596; 420 N.W. 2d 499 (1988)). Therefore, Griffin’s prior conviction for carrying a
concealed weapon could not have been used to impeach his credibility. Moreover, a witness’ prior arrest or charge
cannot be used for impeachment purposes, where the witness had not been convicted of that offense. U.S. v.
Edgecombe, 107 Fed. Appx. 532, 538 (6th Cir. 2004); People v. Clemons, 177 Mich. App. 523, 527; 442 N.W.2d 717
(1989). Thus, petitioner could not have impeached Griffin with evidence of prior drug charges that had been
2002)(commencement of limitations period was not delayed until habeas petitioner’s
alleged discovery of factual predicate for actual innocence claim upon discovery of police
report identifying potential witnesses of whom petitioner was aware at time of trial,
absent evidence that report contained new evidence or contained suppressed evidence that
would have produced different verdict and would have established a Brady violation).
The instant habeas petition is therefore 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
Petitioner argues that the limitations period should be equitably tolled because he
is actually innocent of the charges.
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 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 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; 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 support of his actual innocence claim, petitioner has submitted an affidavit from
himself, in which he claims that he is innocent of the charges. 10 A habeas petitioner’s
self-serving affidavit that he is innocent is insufficient to establish his actual innocence so
as to toll the limitations period. See McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir.
Petitioner further contends that his claim of actual innocence is supported by the
Detroit Free Press articles from 1997 and 1998, in which Investigator Monica Childs, the
investigator in his case, claimed that her superior officer obtained illegal confessions from
suspects and attempted to pressure Childs into committing perjury and lying about the
illegally obtained confessions.
Investigator Childs does not allege in these newspaper articles that she or any other
See Appendix C, attached to the Petition for Writ of Habeas Corpus.
officer committed perjury or committed any other wrongdoing with respect to petitioner’s
case. The mere fact that Childs alleges that she or other members of the Detroit Police
Department, Homicide Division may have been involved in illegal conduct in other cases
is insufficient to establish that petitioner is actually innocent, so as to toll the limitations
period. See e.g. Davis v. Birkett, No. 2006 WL 348269, * 5 (E.D. Mich. February 9,
2006)(allegation that a police officer acted improperly in another case was insufficient to
prove that he acted improperly in habeas petitioner’s case, so as to establish petitioner’s
actual innocence to excuse habeas petitioner’s procedural default).
Petitioner further claims that he is actually innocent because the prosecutor
suppressed evidence concerning Griffin’s prior carrying a concealed weapon conviction,
which petitioner claims could have been used to impeach his credibility.
A habeas petitioner’s renewed attacks on a witness’ credibility are insufficient to
establish actual innocence for the purposes of excusing a procedural bar. See In Re Byrd,
269 F. 3d 561, 577 (6th Cir. 2001)(citing Clark v. Lewis, 1 F. 3d 814, 824 (9th Cir.
1993)(allegation that prosecution witness could have been impeached by allegedly
withheld evidence did not constitute a credible claim of “actual innocence” sufficient to
show that the petitioner was actually innocent of the death penalty). Evidence which
merely impeaches a witness is insufficient to support a claim of actual innocence, so as to
toll the one year limitations period. See Sherratt v. Friel, 275 Fed. Appx. 763, 768 (10th
Cir. 2008); See also McMurry v. Wolfenbarger, No. 2007 WL 2318748, * 5 (E.D. Mich.
August 9, 2007).
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. McCray, 499 F. 3d at 577.
Accordingly, the petition for writ of habeas corpus shall be dismissed pursuant to 28
U.S.C. § 2244(d).
Petitioner has also filed motions for the appointment of counsel and for the
production of documents. In light of the fact that the petition is time-barred, the motions
are denied as moot. See e.g. Hunt v. Stegall, 174 F. Supp. 2d 565, 568 (E.D. Mich. 2001).
The Court determines that the current habeas petition is barred by the AEDPA’s
one year statute of limitations contained in § 2244(d)(1). The Court will summarily
dismiss the current petition. The Court will also deny petitioner a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A) and F.R.A.P. 22(b) state that an appeal from the
district court’s denial of a writ of habeas corpus may not be taken unless a certificate of
appealability (COA) is issued either by a circuit court or district court judge. If an appeal
is taken by an applicant for a writ of habeas corpus, the district court judge shall either
issue a certificate of appealability or state the reasons why a certificate of appealability
shall not issue. F.R.A.P. 22(b). 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).
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 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 (2000). 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; Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
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.
See Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002).
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion for the appointment of counsel [Dkt. #
22] and the motion to produce documents [Dkt. # 23] are DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner is DENIED leave to appeal in forma
S/Bernard A. Friedman_______________
HON. BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE
DATED: January 9, 2012
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