Johnson v. Hoffner

Filing 6

OPINION AND ORDER GRANTING RESPONDENTS MOTION FOR SUMMARY JUDGMENT 4 ; DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS 1 ; DENYING A CERTIFICATE OF APPEALABILITY; AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LARNELL LEROY JOHNSON,
Case No. 15-cv-10733

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
BONITA HOFFNER,

UNITED STATES MAGISTRATE JUDGE
PATRICIA T. MORRIS

Respondent.
/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT [4];
DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS [1]; DENYING A CERTIFICATE
OF APPEALABILITY; AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I. INTRODUCTION
Larnell Johnson (“Petitioner”) has filed a Petition for a Writ of Habeas Corpus [1]
pursuant to 28 U.S.C. § 2254 alleging that he is being held in custody in violation of his
constitutional rights. Petitioner was convicted of first-degree murder and possession of a firearm
during the commission of a felony following a jury trial in the Saginaw County Circuit Court and
was sentenced to life imprisonment without parole and a consecutive term of two years
imprisonment in 1981.
This matter is presently before the Court on Respondent’s motion for summary judgment
seeking to dismiss the petition as untimely under the one-year statute of limitations applicable to
federal habeas actions. Having reviewed the case, the Court concludes that the habeas petition is
untimely and must be dismissed for failure to comply with the one-year statute of limitations set
forth at 28 U.S.C. § 2244(d). The Court also concludes that a certificate of appealability and
leave to proceed in forma pauperis on appeal will be denied.

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II. BACKGROUND
Petitioner’s convictions arise from a shooting in which Petitioner and three others tracked
down a man at a park in Saginaw and shot him to death on July 16, 1980. At trial, an off-duty
police officer testified that he witnessed the shooting incident. He heard someone say, “we got
you now motherfucker,” just prior to the shooting. Once shots were fired and the victim initially
fell to the ground, he observed Petitioner fire seven or eight additional shots into the victim. The
victim’s brother also identified Petitioner as one of the shooters. The victim’s cousin and the
cousin’s girlfriend also witnessed the shooting. A woman, Deborah Siler, who knew both
Petitioner and the victim testified that she heard Petitioner threaten to kill Thomas at her house
prior to the shooting. Petitioner’s cousin testified that the victim had threatened to kill the
Petitioner prior to the incident. Petitioner testified in his own defense at trial. He asserted that
he only fired shots at the victim from 25 to 30 feet away because the victim had previously
threatened him and he saw the victim and his relatives with weapons at the park.
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals, which affirmed his convictions and sentences. People v. Johnson,
No. 59649 (Mich. Ct. App. July 22, 1983). Jones filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order. People v. Johnson, No. 72223
(Mich. S. Ct. March 8, 1984).
On October 21, 1998, Deborah Siler signed an affidavit recanting her testimony that
Petitioner had threatened the victim before the shooting incident. Sometime thereafter, one of
Petitioner’s co-defendants filed a motion for relief from judgment and had a hearing on it related
to Siler’s affidavit. Petitioner participated in that hearing. The trial court denied the motion for
relief from judgment and, because Petitioner participated in the hearing, the court also included

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Petitioner in that decision. Petitioner appealed and the Michigan Court of Appeals vacated the
order relative to Petitioner because he had not filed his own motion for relief from judgment.
People v. Johnson, No. 245153 (Mich. Ct. App. March 25, 2003).
Nearly ten years later, on January 8, 2012, Petitioner filed a motion for relief from
judgment with the state trial court raising several claims including claims arising from Siler’s
affidavit. The trial court denied the motion. People v. Johnson, No. 80-000568-FY (Saginaw
Co. Cir. Ct. June 19, 2012). Petitioner filed a delayed application for leave to appeal with the
Michigan Court of Appeals, which was denied. People v. Johnson, No. 313950 (Mich. Ct. App.
Sept. 6, 2013). Petitioner then filed an application for leave to appeal with the Michigan Supreme
Court, which was denied. People v. Johnson, 495 Mich. 948, 843 N.W.2d 536 (Feb. 28, 2014).
Petitioner, through counsel, filed the instant federal habeas petition on February 27, 2015.
In the Petition, he raises claims concerning Siler’s recanted trial testimony, perjury, the alleged
failure to disclose evidence, the non-production of a res gestae witness, the effectiveness of trial
and appellate counsel, and cumulative error. Respondent now moves for summary judgment
contending that the petition is untimely. Petitioner has not filed a Response to the motion in
accordance with the Court’s Local Rules. See E.D. Mich. L.R. 7.1(e)(1)(c).
III. LEGAL STANDARD
A. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) empowers the court to render summary judgment
“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.” See Redding v. St. Eward, 241 F.3d 530, 532
(6th Cir. 2001). The Supreme Court has affirmed the court's use of summary judgment as an

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integral part of the fair and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox v.
Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
With respect to summary judgment, the Court must determine “‘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.’” Amway Distributors Benefits Ass’n v. Northfield
Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986)). Evidence and all reasonable inferences must be construed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see
also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing
party must come forward with “specific facts showing that there is a genuine issue for trial.”
First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the nonmovant’s pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the
non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a
jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477
U.S. at 252).

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IV. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28
U.S.C. § 2241 et seq., became effective on April 24, 1996. AEDPA established a one-year
period of limitation for state prisoners to file federal habeas corpus petitions. See Wall v. Kholi,
562 U.S. 545, 131 S. Ct. 1278, 179 L. Ed. 2d 252 (2011) (citing 28 U.S.C. § 2244(d)(1)). The
one-year limitations period runs from the latest of the following four dates:
(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)-(D). “The limitation period is tolled, however, during the pendency
of a ‘properly filed application for State post-conviction or other collateral review with respect to
the pertinent judgment or claim.’” Kholi, 131 S. Ct. at 1283 (quoting 28 U.S.C. § 2244(d)(2)).
AEDPA governs the filing date for this action because Petitioner filed his petition after
AEDPA’s effective date. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d
481 (1997). A petition filed outside the time period prescribed by this section must be dismissed.
See Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (dismissing case filed 13 days after
the limitations period expired); Wilson v. Birkett, 192 F. Supp. 2d 763, 765 (E.D. Mich. 2002).
Petitioner’s convictions became final in 1984, well before the AEDPA’s April 24, 1996
effective date. Prisoners whose convictions became final before the AEDPA's effective date are

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given a one-year grace period in which to file their federal habeas petitions. Jurado v. Burt, 337
F.3d 638, 640 (6th Cir. 2003). Accordingly, Petitioner was required to file his federal habeas
petition on or before April 24, 1997, excluding any time during which a properly filed
application for state post-conviction or collateral review was pending in accordance with 28
U.S.C. § 2244(d)(2).
Petitioner filed his motion for relief from judgment with the state trial court on January 8,
2012. Thus, the one-year limitations period had expired well before Petitioner sought state postconviction review. A state court post-conviction motion that is filed following the expiration of
the limitations period cannot toll that period because there is no period remaining to be tolled.
See Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002); Webster v. Moore, 199 F.3d
1256, 1259 (11th Cir. 2000); see also Jurado, 337 F.3d at 641. Petitioner's state post-conviction
proceedings did not toll the running of the statute of limitations. Furthermore, the AEDPA's
limitations period does not begin to run anew after the completion of state post-conviction
proceedings. Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).
Petitioner does not contend that the state created an impediment to the filing of his
petition or that his claims are based upon newly-created retroactively applicable rights which
would warrant habeas relief. Arguably, he could assert that the claims in his petition which arise
from Siler’s affidavit are based upon newly-discovered facts. Under 28 U.S.C. § 2244(d)(1)(D),
the limitations period begins when the factual predicate for the claim could have been discovered
through the exercise of due diligence, not when it was actually discovered by the petitioner. See
Lott v. Coyle, 261 F.3d 594, 605–06 (6th Cir. 2001); Brooks v. McKee, 307 F. Supp. 2d 902, 90506 (E.D. Mich. 2004) (citing cases). The period begins when the petitioner knows or could have
discovered the important facts for the claim, not when the petitioner recognizes the legal

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significance of those facts. Brooks, 307 F. Supp. 2d at 905-06. The start of the limitations period
“does not await the collection of evidence which supports the facts.” Id. at 906. A habeas
petitioner bears the burden of showing that he exercised due diligence in discovering the factual
predicate for his claims. DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006).
In this case, Petitioner knew or should have known of Siler’s recantation at the time she
signed her affidavit in 1998 or, at the latest, during his co-defendant’s motion for relief from
judgment proceedings in the state trial court which concluded in 2001. Thus, Petitioner had until
1999 or, at most, until 2002 to pursue collateral review in the state courts and/or seek federal
habeas relief. Petitioner did not file his state court motion for relief from judgment, however,
until 2012. His habeas action is therefore untimely under 28 U.S.C. § 2244(d).
The United States Supreme Court has confirmed that the habeas statute of limitations is
not a jurisdictional bar and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645,
130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130 (2010). The Supreme Court has further verified that 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 timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct.
1807, 1814, 161 L. Ed. 2d 669 (2005)); see also Robertson v. Simpson, 624 F.3d 781, 783-84
(6th Cir. 2010). A petitioner has the burden of demonstrating that he is entitled to equitable
tolling. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). “Typically, equitable tolling applied
only when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.”

Jurado, 337 F.3d at 642 (quoting Graham-

Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)).

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Here, Petitioner makes no such showing. The fact that he is untrained in the law, may
have been proceeding without a lawyer for a period of time, may have been mistaken about state
court filing requirements, or may have been unaware of the statute of limitations does not
warrant tolling. See Allen, 366 F.3d at 403 (ignorance of the law does not justify tolling);
Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002) (the law is “replete with instances
which firmly establish that ignorance of the law, despite a litigant’s pro se status, is no excuse for
failure to follow established legal requirements); Holloway v. Jones, 166 F. Supp. 2d 1185, 1189
(E.D. Mich. 2001) (lack of professional legal assistance does not justify tolling); Sperling v.
White, 30 F. Supp. 2d 1246, 1254 (C.D. Cal. 1998) (citing cases stating that ignorance of the law,
illiteracy, and lack of legal assistance do not justify tolling). Petitioner’s contention that his
habeas claims have merit also does not justify tolling the limitations period. Holloway, 166 F.
Supp. 2d at 1191. Put simply, Petitioner fails to establish that he is entitled to equitable tolling
under Holland.
Both the United States Supreme Court and the United States Court of Appeals for the
Sixth Circuit have also held that a credible claim of actual innocence may equitably toll the oneyear statute of limitations. See McQuiggin v. Perkins, – U.S. –, 133 S. Ct. 1924, 1928 (2013);
Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005); see also Holloway, 166 F. Supp. 2d at
1190. As explained in Souter, to support a claim of actual innocence, a petitioner in a collateral
proceeding “must demonstrate that, in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623, 118
S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct.
851, 130 L. Ed. 2d 808 (1995)); see also House v. Bell, 547 U.S. 518, 537-39, 126 S. Ct. 2064,
165 L. Ed. 2d 1 (2006). A valid claim of actual innocence requires a petitioner “to support his

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allegations of constitutional error with new reliable evidence – whether it be exculpatory
scientific evidence, trustworthy eyewitness account, or critical physical evidence – that was not
presented at trial.” Schlup, 513 U.S. at 324. Significantly, actual innocence means “factual
innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623.
Again, Petitioner makes no such showing. Here, Petitioner could argue that Siler’s
affidavit supports a claim of innocence. Siler’s affidavit, however, is not particularly reliable
given that it was signed 17 years after Petitioner’s trial. See, e.g., McQuiggan, 133 S. Ct. at 1928
(stating that a court should consider “unjustifiable delay on a habeas petitioner’s part . . . as a
factor in determining whether actual innocence has been reliably shown”). Moreover, Siler’s
recantation, even if believed, does not establish Petitioner’s innocence. The trial testimony from
other witnesses, including an off-duty police officer, who witnessed the shooting provide
significant evidence of Petitioner’s guilt of the charged offenses. Petitioner even admitted being
at the scene and firing his weapon. Thus, Siler’s affidavit does not demonstrate that, in light of
all the evidence, it is more likely than not that no reasonable juror would have convicted
Petitioner of the crime. All things considered, Petitioner is not entitled to equitable tolling of the
one-year period and his petition must be dismissed.
IV. CONCLUSION
Based on the foregoing discussion, the Court concludes that Petitioner did not file his
petition within AEDPA’s one-year limitations period, that he fails to demonstrate that he is
entitled to statutory or equitable tolling, and that the statute of limitations precludes review of his
habeas claims. Accordingly, the Court GRANTS Respondent’s Motion for Summary Judgment
[9] and DISMISSES WITH PREJUDICE the Petition for a Writ of Habeas Corpus [1].

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Before Petitioner may appeal the Court’s decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a court denies a habeas claim on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). When a court denies relief on procedural grounds without addressing the
merits, a certificate of appealability should issue if it is shown 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 court was correct in its procedural
ruling. Id. Here, jurists of reason would not find the Court’s procedural ruling debatable.
Accordingly, the Court DENIES a certificate of appealability. The Court also DENIES leave to
proceed in forma pauperis on appeal as an appeal cannot be taken in good faith. See Fed. R.
App. P. 24(a).
IT IS SO ORDERED.
Dated: August 11, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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