Harris v. Bergh

Filing 14

OPINION and ORDER signed by District Judge George Caram Steeh Granting Respondent's Motion for Summary Judgment, Dismissing 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. (Grimes, K.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RODNEY HARRIS,
Case Number: 2:15-CV-11122
HON. GEORGE CARAM STEEH

Petitioner,
v.
DAVID BERGH,
Respondent.
/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR
SUMMARY JUDGMENT, DISMISSING PETITION FOR WRIT OF HABEAS
CORPUS, AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Rodney Harris, a Michigan state prisoner currently incarcerated at the
Thumb Correctional Facility in Lapeer, Michigan, filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. He challenges his conviction for first-degree
premeditated murder, Mich. Comp. Laws § 750.316. Respondent has filed a motion for
summary judgment, arguing that the petition should be denied because it is untimely.
For the reasons stated herein, the Court finds the petition for a writ of habeas corpus is
untimely and grants the Respondent’s motion. The Court also declines to issue
Petitioner a certificate of appealability, and grants him leave to proceed on appeal in
forma pauperis.
I. Background
Petitioner was convicted by a jury in Oakland County Circuit Court of first-degree
premeditated murder. On November 9, 1992, he was sentenced to life in prison.

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Petitioner filed a timely claim of appeal in the Michigan Court of Appeals, but the
Michigan Court of Appeals dismissed the appeal for lack of prosecution because
Petitioner’s attorney failed to file a timely appellate brief. See People v. Harris, No.
159431 (Mich. Ct. App. Oct. 10, 1994) (ECF No. 12-25). After several unsuccessful
attempts in state court to restart the time for filing a timely direct appeal, Petitioner filed
a petition for a writ of habeas corpus in this Court. The Court granted a conditional writ
of habeas corpus, ordering the State to release Petitioner unless appointed counsel
was provided for Petitioner and his appeal of right in the Michigan Court of Appeals was
reinstated within sixty days. Harris v. Booker, No. 07-13250, 2008 WL 2999155 (E.D.
Mich. Aug. 1, 2008), amended by Harris v. Booker, No. 07-13250, 2008 WL 3852244
(E.D. Mich. Aug. 18, 2008).
In accordance with the Court’s order granting a conditional writ, the State court
appointed counsel for Petitioner and reinstated his appeal of right. He raised these
claims: (i) gruesome photographs of the victim at the scene and of the autopsy were
improperly admitted; (ii) Petitioner was denied his right of confrontation; (iii) Petitioner
was denied his right to present a defense; and (iv) insufficient evidence was presented
to sustain the conviction. The Michigan Court of Appeals affirmed Petitioner’s
convictions. People v. Harris, No. 287724, 2010 WL 2925380 (Mich. Ct. App. July 27,
2010). Petitioner filed an application for leave to appeal in the Michigan Supreme
Court. On December 20, 2010, the Michigan Supreme Court denied leave to appeal.
People v. Harris, 488 Mich. 996 (Mich. 2010). The Michigan Supreme Court denied
Petitioner’s subsequent motion for reconsideration. People v. Harris, 488 Mich. 1052

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(Mich. March 8, 2011).
On May 25, 2012, Petitioner filed a motion for relief from judgment in the trial
court. The trial court denied the motion. 3/25/15 Order, ECF No. 12-33. The Michigan
Court of Appeals denied Petitioner’s application for leave to appeal. People v. Harris,
No. 318352 (Mich. Ct. App. March 6, 2014). Petitioner then filed an application for
leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court denied
leave to appeal on February 3, 2015. People v. Harris, 497 Mich. 951 (Mich. 2015).
Petitioner filed the pending habeas petition on March 23, 2015. Respondent has filed a
motion for summary judgment on the ground the petition was not timely filed.
II. Discussion
A.
A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence
of a genuine issue of material fact for trial. The Court must view the evidence and draw
all reasonable inferences in favor of the non-moving party, and 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.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The party bringing the summary judgment motion has the initial burden of
informing the district court of the basis for its motion and identifying portions of the
record which demonstrate the absence of a genuine dispute over material facts. Mt.
Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th
Cir. 2002). The party opposing the motion then may not “rely on the hope that the trier

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of fact will disbelieve the movant’s denial of a disputed fact” but must make an
affirmative showing with proper evidence in order to defeat the motion. Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for
summary judgment must designate specific facts in affidavits, depositions, or other
factual material showing “evidence on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252. If the non-moving party, after sufficient
opportunity for discovery, is unable to meet his or her burden of proof, summary
judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B.
Respondent argues that the petition is barred by the one-year statute of
limitations. A prisoner must file a federal habeas corpus petition within one year 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 . . . or 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 one-year limitation
period begins at the expiration of the deadline for filing a petition for a writ of certiorari
to the United States Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.
2000). In addition, the time during which a prisoner seeks state-court collateral review
of a conviction does not count toward the limitation period. 28 U.S.C. § 2244(d)(2); Ege
v. Yukins, 485 F.3d 364, 371-72 (6th Cir. 2007). A properly filed application for state
post-conviction relief, while tolling the limitation period, does not re-fresh the limitation
period. Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).

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After his appeal of right was reinstated, Petitioner appealed his conviction first to
the Michigan Court of Appeals, and then to the Michigan Supreme Court. The Michigan
Supreme Court denied his application for leave to appeal on December 20, 2010, and
denied a motion for reconsideration on March 8, 2011. Petitioner had ninety days from
the denial of his motion for reconsideration to file a petition for writ of certiorari with the
United States Supreme Court, which he did not do. Thus, his conviction became final
on June 6, 2011, when the time period for seeking certiorari expired. Bronaugh v. Ohio,
235 F.3d 280, 283 (6th Cir. 2000) (one-year statute of limitations does not begin to run
until the time for filing a petition for a writ of certiorari for direct review in the United
States Supreme Court has expired). The last day on which a petitioner can file a
petition for a writ of certiorari in the United States Supreme Court is not counted toward
the one-year limitations period applicable to habeas corpus petitions. Id. at 285.
Accordingly, the limitations period commenced on June 7, 2011, and continued to run
until Petitioner filed a motion for relief from judgment in the trial court on May 25, 2012.
That motion, a properly filed motion for state-court collateral review, tolled the
limitations period with 12 days remaining. See 28 U.S.C. § 2244(d)(2). The limitations
period resumed running on February 4, 2015, the day after the Michigan Supreme
Court denied Petitioner’s application for leave to appeal. The limitations period
continued running until it expired on February 16, 2015. The petition was filed on
March 23, 2015, over one month after the limitations period expired.
Petitioner argues that the limitations period should be equitably tolled because
he did not receive notice of the Michigan Supreme Court’s February 3, 2015 order
denying his application for leave to appeal until February 27, 2015, after the limitations
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period already expired. Equitable tolling is available to toll a statute of limitations when
“‘a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.’” Robertson v. Simpson, 624 F.3d 781,
784 (6th Cir. 2010), quoting Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 560-61 (6th Cir. 2000). The one-year limitations period applicable
to § 2254 is “subject to equitable tolling in appropriate cases.” See Holland v. Florida,
560 U.S. 631, 645 (2010). To be entitled to equitable tolling, a petitioner must show: (1)
“that he has been pursuing his rights diligently,” and (2) “that some extraordinary
circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (quotation omitted). A claim of actual innocence may also justify
equitable tolling in certain circumstances. Souter v. Jones, 395 F.3d 577, 588 (6th Cir.
2005). A petitioner bears the burden of showing that he is entitled to equitable tolling.
Robertson, 624 F.3d at 784.
Lack of notice of a state court decision can justify equitable tolling of the
limitations period. Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002). Here, however,
Petitioner provides no support for his claim that he did not received notice of the
Michigan Supreme Court’s order until February 27, 2015. In addition, Petitioner waited
almost one month from the date he received notice of the decision to file his habeas
corpus proceeding. The claims raised in the petition are the same as those raised on
direct appeal and collateral review. The petition essentially combines the briefs
submitted on direct appeal. Thus, Petitioner was not delayed by the need to research
and draft a petition raising new claims. Even assuming that Petitioner did not promptly

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receive the state court’s order, he failed to act promptly once he did. He was required
to act with due diligence to pursue federal habeas review and he did not. Accordingly,
he is not entitled to equitable tolling on this basis.
Petitioner alternatively argues that his petition is not barred by the statute of
limitations on the ground that he is actually innocent. A credible claim of actual
innocence may equitably toll the one-year statute of limitations. See Souter v. Jones,
395 F.3d 577, 588-90 (6th Cir. 2005). To determine whether a petitioner has satisfied
the requirements for establishing a cognizable claim of actual innocence to warrant
equitable tolling, the court applies “the same actual innocence standard developed in
Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), for reviewing a federal habeas
applicant’s procedurally defaulted claim.” McCray v. Vasbinder, 499 F.3d 568, 571 (6th
Cir. 2007), citing Souter, 395 F.3d at 596. A valid 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 account, or critical
physical evidence – that was not presented at trial.” Schlup, 513 U.S. at 324. “The
Schlup standard is demanding and permits review only in the ‘extraordinary’ case.”
House v. Bell, 547 U.S. 518, 538 (2006) (citation omitted). A court presented with new
evidence must consider it in light of “all the evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily be admitted under rules of
admissibility that would govern at trial.” Id., 547 U.S. at 538 (citation omitted). “Based
on this total record, the court must make ‘a probabilistic determination about what
reasonable, properly instructed jurors would do.’” Id. (quoting Schlup, 513 U.S. at 329).

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This standard does not require absolute certainty about the petitioner’s guilt or
innocence:
A petitioner's burden at the gateway stage is to demonstrate that more
likely than not, in light of the new evidence, no reasonable juror would find
him guilty beyond a reasonable doubt – or, to remove the double
negative, that more likely than not any reasonable juror would have
reasonable doubt.
House, 547 U.S. at 538.
To support his claim of actual innocence, Petitioner rehashes the evidence
presented at trial and argues that if certain errors had not been made the result of the
proceeding would have been different. Petitioner fails to present any new evidence to
support his argument. His claim of actual innocence falls far short of that required to
excuse the failure to timely file his habeas petition.
III. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not
proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. A
district court must “issue or deny a certificate of appealability when it enters a final
order adverse to the applicant. . . . If the court issues a certificate, the court must state
the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).”
Rule 11, Rules Governing Section 2255 Proceedings.
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).
Courts must either issue a certificate of appealability indicating which issues satisfy the
required showing or provide reasons why such a certificate should not issue. 28 U.S.C.
§ 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306,
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1307 (6th Cir. 1997). To receive a certificate of appealability, “a petitioner must show
that reasonable jurists could debate whether (or, for that matter, 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.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (internal quotes and citations omitted).
In this case, the Court concludes that reasonable jurists would not debate the
Court’s conclusion that the petition is untimely. Therefore, the Court denies a certificate
of appealability.
IV. Conclusion
The Court finds that Petitioner failed to file his habeas petition within the
applicable one-year limitations period. Accordingly, the Court GRANTS Respondent’s
Motion for Summary Judgment (ECF No. 8) and the petition for a writ of habeas corpus
is DISMISSED. The Court DENIES a certificate of appealability. If Petitioner chooses
to appeal the Court's decision, he may proceed in forma pauperis on appeal because
an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Dated: March 24, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 24, 2016, by electronic and/or ordinary mail and also on
Rodney Harris #227942, Thumb Correctional Facility,
3225 John Conley Dr., Lapeer, MI 48446.
s/Barbara Radke
Deputy Clerk

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