Wise v. Berghuis

Filing 22

OPINION AND ORDER finding as moot 18 Motion for Guidance; finding as moot 19 Motion to Amend/Correct; granting 21 Motion for to Stay and Hold in Abeyance Petition. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANGELO WISE,
Petitioner,
Case No. 2:13-cv-10360
Hon. Paul D. Borman
United States District Judge

v.
MARY BERGHUIS,
Respondent.
_______________________________/

OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY
AND HOLD THE PETITION FOR WRIT OF HABEAS CORPUS IN
ABEYANCE [Dkt. 21]
This is a habeas corpus case filed by a Michigan prisoner incarcerated at the
Earnest C. Brooks Correctional Facility. Petitioner, Angelo Wise, was convicted after
a jury trial in the Wayne Circuit Court of first-degree felony murder, MICH. COMP.
LAWS § 750.316, armed robbery, MICH. COMP. LAWS § 750.529, possession of a
firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, felon in
possession of a firearm, MICH. COMP. LAWS § 750.224f, and carrying a concealed
weapon, MICH. COMP. LAWS § 750.227. As a result of these convictions, Petitioner
is serving concurrent sentences of life without parole for the murder conviction, 50-to75 years for the armed robbery conviction, 5-to-20 years for the felon in possession
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conviction and the concealed weapon conviction, and a consecutive to 2-year term for
the felony-firearm conviction.
The petition raises eleven claims: 1) the prosecution did not exercise due
diligence in attempting to locate witnesses for trial, 2) Petitioner’s trial counsel
provided ineffective assistance, 3) the trial court erroneously instructed the jury, 4) the
prosecutor committed misconduct, 5) Petitioner’s appellate counsel provided
ineffective assistance of counsel prior to filing the appellate brief, 6) the jury’s oath
was defective, 7) Petitioner’s appellate counsel was ineffective for failing to raise
certain claims in the appellate brief, 8) Petitioner’s convictions for carrying a
concealed weapon, felon in possession of a weapon, murder, and armed robbery
violate his right against Double Jeopardy, 9) insufficient evidence was presented at
trial to sustain the element of malice to support Petitioner’s second-degree murder
conviction, 10) insufficient evidence was presented at trial to sustain Petitioner’s firstdegree felony murder conviction, and 11) Petitioner was erroneously denied jail credit.
Petitioner has filed a series of motions, the last of which seeks to stay his
petition. His motion and amended motion for guidance assert he has new evidence that
the prosecutor and police willfully fabricated and withheld vital exculpatory evidence
from the defense. The motions assert this new evidence was recently discovered by
family members who have been assisting him. His motion for stay asks for the Court
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to stay his habeas petition while he returns to state court to present his new claims
there. For the reasons stated below, the Court holds the petition in abeyance and stays
the proceedings under the terms outlined in this opinion to permit Petitioner to exhaust
his new claims.
I. Background
Following his conviction and sentence, Petitioner filed a claim of appeal in the
Michigan Court of Appeals. His appellate attorney filed a brief raising the following
claim:
I. Defendant is entitled to a new trial where the trial court erred in
finding due diligence as to Mr. Simmons, an endorsed witness.
Petitioner filed a pro se supplemental brief, raising an additional four
claims:
I. Trial counsel failed to perform to an objective standard and provide
effective assistance during trial preparation and investigation and during
the trial.
II. The trial court erred by not instructing the jury regarding self-defense,
manslaughter, or lost evidence.
III. The prosecutor engaged in multiple instances of prejudicial
misconduct.
IV. Defendant was denied the effective assistance of appellate counsel
for failing to request an evidentiary hearing or timely provide transcripts
for appeal.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an
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unpublished opinion. People v. Wise, No. 286957, 2010 WL 364190 (Mich. Ct.
App. Feb. 2, 2010).
Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims as in the Michigan Court of
Appeals. The Michigan Supreme Court denied the application because it was
not persuaded that the questions presented should be reviewed by the Court.
People v. Wise, 783 N.W.2d 344 (Mich. 2010) (table).
On or about March 18, 2011, Petitioner filed a motion for relief from
judgment in the trial court, raising the following claims:
I. The jury was given a defective jury oath, mandating reversal.
II. Defendant was denied the effective assistance of appellate counsel by
his counsel’s failure to raise his double jeopardy issues.
III. Defendant’s convictions of both CCW and felon in possession and
his convictions of both felony murder and armed robbery violated double
jeopardy.
IV. There was insufficient evidence of malice element of second-degree
murder.
V. There was insufficient evidence of malice element of felony murder.
VI. Defendant was improperly denied jail credit to his life sentence, in
effect giving him an unlawful sentence of life plus 239 days.
The trial court denied the motion for relief from judgment in an order
dated April 14, 2011. Petitioner then filed an application for leave to appeal in
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the Michigan Court of Appeals. The application was denied for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). People v.
Wise, No. 306507 (Mich. Ct. App. May 2, 2012). Petitioner filed an application
for leave to appeal in the Michigan Supreme Court, but it was also denied under
Rule 6.508(D). People v. Wise, 821 N.W.2d 551 (Mich. 2012) (table).
II. Discussion
Petitioner seeks to eventually present his newly discovered claims in this
action. A state prisoner seeking federal habeas relief, however, must first
exhaust his available state court remedies before raising a claim in federal
court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U.S. 270, 275-78
(1971). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves
the traditional exhaustion requirement, which mandates dismissal of a habeas
petition containing claims that a petitioner has a right to raise in the state courts
but has failed to do so. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D.
Mich. 1999). Although exhaustion is not a jurisdictional matter, “it is a
threshold question that must be resolved” before a federal court can reach the
merits of any claim contained in a habeas petition. See Wagner v. Smith, 581
F. 3d 410, 415 (6th Cir. 2009). Therefore, each claim must be reviewed by a
federal court for exhaustion before any claim may be reviewed on the merits by
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a federal court. Id.
The U.S. Supreme Court has suggested that a habeas petitioner who is
concerned about the possible effects of his state post-conviction filings on the
AEDPA’s statute of limitations may ask for a federal habeas petition to be held
in abeyance pending the exhaustion of state post-conviction remedies. See Pace
v. DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines v. Weber, 544 U.S. 269
(2005)). A federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction
proceedings, provided there is good cause for failure to exhaust claims and that
the unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at 278.
According to the allegations in Petitioner’s motion for guidance, his
family members recently discovered through their own investigation a
Michigan State Police lab report regarding a bullet fragment that was recovered
and tested in his case. Petitioner asserts prosecution witnesses falsely testified
at trial that the fragment went missing from the Detroit Police Crime lab when
in truth it has been sent to the state police for testing. Petitioner asserts that the
lab report indicates that test result on the bullet fragment was inconclusive.
Petitioner’s amended motion for guidance further asserts his family members
have discovered new evidence indicating that the officer in charge of the case
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and the trial prosecutor knew that a prosecution witness gave a statement to
police differing from his testimony, and the prosecutor failed to correct the false
testimony at trial. Petitioner characterizes the witness statement as newly
discovered.
Normally, a Michigan defendant may not file a second motion from
judgment in the trial court. See Michigan Court Rule 6.502(G). This rule has
an exception for motions based on “new evidence that was not discovered
before the first such motion.” Rule 6.502(G)(2). Accordingly, while expressing
no opinion whether Petitioner’s proffered new evidence qualifies for the filing
of a second motion, the Court finds that Petitioner has a potential state court
procedure available to pursue exhaustion of his new claims. Furthermore, at
least before the claims are presented to the state courts, this Court cannot
conclude that Petitioner’s new claims are “plainly meritless.” See Rhines, 544
U.S. at 278.
Because of concerns posed by the statute of limitations, the Court will
therefore stay the petition pending exhaustion of his new claims. However,
even where a district court determines that a stay is appropriate pending
exhaustion of state court remedies, the district court “should place reasonable
time limits on a petitioner’s trip to state court and back.” Rhines, 544 U.S. at
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278. Therefore, to ensure that there are no delays by Petitioner in exhausting his
state court remedies, this Court will impose upon Petitioner time limits within
which he must proceed with his state court post-conviction proceedings. See
Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
This tolling is conditioned upon Petitioner diligently pursuing relief in
the state courts by filing a motion for relief from judgment in the trial court
within sixty days of this order, pursuing a timely appeal in the state courts if the
motion is denied, and then returning to federal court within sixty days of
completing the exhaustion of his state court post-conviction remedies. See
Hargrove v. Brigano, 300 F. 3d 717, 718 (6th Cir. 2002).
III. Order
Accordingly, it is ORDERED that Petitioner’s motion to stay (Dkt. 21)
is granted. The petition for writ of habeas corpus shall be held in abeyance
pending completion of Petitioner’s second state application for post-conviction
review. This tolling is conditioned upon Petitioner filing his motion for relief
from judgment within sixty days of this order and then re-filing his habeas
petition–using the case number already assigned to this case–within sixty days
after the conclusion of the state court post-conviction proceedings.

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To avoid administrative difficulties, the Court ORDERS the Clerk of
Court to CLOSE this case for statistical purposes only. Nothing in this order
or in the related docket entry shall be considered a dismissal or disposition of
this matter. See Sitto v. Bock, 207 F. Supp. 2d 668, 677 (E.D. Mich. 2002).
It is further ORDERED that upon receipt of a motion to reinstate the
habeas petition following exhaustion of state remedies, the Court may order the
Clerk to reopen this case for statistical purposes.
It is further ORDERED that Petitioner’s motion for guidance and motion
to amend motion for guidance (Dkts. 18 and 19) are denied as moot.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: May 27, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S.
mail on May 27, 2015.

s/Deborah Tofil
Case Manager

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