Bell v. Brewer

Filing 9

OPINION and ORDER granting 6 respondent's MOTION to Dismiss; Dismissing Petition for Writ of Habeas Corpus; and denying certificate of appealability and permission to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW BELL,
Petitioner,

Case No. 2:16-cv-11439
Hon. Nancy G. Edmunds

SHAWN BREWER,
Respondent.
_____________________________________/
OPINION AND ORDER (1) GRANTING RESPONDENT’S MOTION TO DISMISS [Dkt.
6], (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND (3)
DENYING CERTIFICATE OF APPEALABILITY AND PERMISSION TO APPEAL IN
FORMA PAUPERIS
Matthew Bell, (“Petitioner”), a Michigan Department of Corrections prisoner serving
a life sentence, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petition challenges Petitioner’s Wayne Circuit Court jury trial conviction of two counts
of first-degree murder, MICH. COMP. LAWS § 750.316, two counts of armed robbery, MICH.
COMP. LAWS § 750.529, one count of conspiracy to commit armed robbery, MICH. COMP.
LAWS § 750.157a, and possession of a firearm during the commission of a felony. MICH.
COMP. LAWS § 750.227b.
The Court interprets the petition to be raising the following claims: (1) Petitioner was
denied the effective assistance of counsel when his trial attorney failed to call two alibi
witnesses at trial, (2) trial counsel was ineffective for failing to request a cautionary
instruction, (3) and (7) the state court unconstitutionally failed to review claims presented
in Petitioner’s third petition for post-conviction review, (4) and (5) trial counsel failed to
conduct an adequate pretrial investigation, (6) Petitioner was denied the effective
assistance of appellate counsel for failing to present ineffective assistance of trial counsel

claims on direct appeal, and (8) the court rule relied upon by the state court to deny
Petitioner’s third post-conviction review proceeding was inadequate.
This matter is before the Court on Respondent’s motion to dismiss the petition as
untimely filed. Petitioner has not filed a response to the motion, but his petition asserts that
review of his claims is permitted based on his showing of actual innocence. The Court will
grant Respondent’s motion and dismiss the case because Petitioner failed to comply with
the one-year limitations period under 28 U.S.C. §2244(d), and Petitioner has failed to
demonstrate that he is actually innocent. The Court will also deny Petitioner a certificate
of appealability and deny permission to proceed on appeal in forma pauperis.
I. Background
Petitioner’s convictions arise from an incident occurring on July 29, 1999, in which
Petitioner and his co-defendant, Troy King, conspired to rob two women who were working
as prostitutes. Petitioner stood trial twice. His first trial ended with a hung jury. The
evidence presented at Petitioner’s second trial indicated that King brought the two women
to a house where Petitioner was waiting. When the victims arrived at the house, evidence
was presented indicating that Petitioner shot both women during the course of the robbery.
The bodies were wrapped in blankets and dumped at another location in Detroit.
Following his conviction and sentence, Petitioner filed an appeal of right in the
Michigan Court of Appeals. On May 15, 2003, the Michigan Court of Appeals issued an
unpublished opinion affirming the convictions, but vacating one armed robbery conviction
on double jeopardy grounds. People v. Bell, No. 239518, 2003 WL 21130164 (Mich. Ct.
App. May 15, 2003). Petitioner then filed an application for leave to appeal in the Michigan
Supreme Court. On November 24, 2003, the Michigan Supreme Court denied Petitioner’s
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application by standard order. People v. Bell, 671 N.W.2d 878 (Mich. 2003) (table).
Over three years later, on March 29, 2007, Petitioner filed his first motion for relief
from judgment in the state trial court. The court denied the motion on October 1, 2007. See
Dkt. 7-21. Petitioner filed a delayed application for leave to appeal in the Michigan Court
of Appeals. On August 22, 2008, the Michigan Court of Appeals denied the application in
a standard order. People v. Bell , No. 283337 (Mich. Ct. App. Aug. 22, 2008). Petitioner
applied for leave to appeal to the Michigan Supreme Court, but his application was denied
on January 9, 2009. People v. Bell, 759 N.W.2d 24 (Mich. 2009) (table).
Over five years later, on January 28, 2014, Petitioner filed a second motion for relief
from judgment in the trial court. The trial court denied the motion on February 5, 2014.
On August 15, 2014, Petitioner filed a third motion for relief from judgment in the trial
court. On August 25, 2014, the trial court summarily denied the motion. See Dkt. 7-23.
Petitioner then filed a delayed application for leave to appeal in the Michigan Court of
Appeals. On October 24, 2014, the Michigan Court of Appeals dismissed the application
pursuant to Michigan Court Rule 6.502(G), which prohibits the filing of successive postconviction proceedings. People v. Bell, No. 323675 (Mich. Ct. App. Oct. 24, 2014).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court. On
September 29, 2015, the Michigan Supreme Court denied the application under Rule
6.502(G). People v. Bell, 869 N.W.2d 604 (Mich. 2015) (table).
Petitioner dated his federal habeas petition on April 7, 2016. Because Petitioner is
proceeding pro se, the petition is considered filed as of the date he signed it under penalty
of perjury. See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999).

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II. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a
one-year period of limitation for a habeas petition filed by a state prisoner seeking habeas
relief from a state court judgment. 28 U.S.C. § 2244(d)(1). The limitation runs from one of
four specified dates, usually either the day when the judgment becomes final by the
conclusion of direct review or the day when the time for seeking such review expires. §
2244(d)(1)(A). The limitation period is tolled while “a properly filed application for State
post-conviction or other collateral review . . . is pending.” § 2244(d)(2).
Section 2244(d)(1)(A) provides the operative date from which the one-year
limitations period is measured in this case. No other starting point appears in the record.
Under section 2244(d)(1)(A), the one-year limitations period runs from “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.” Here, that date is February 22, 2004, the last day Petitioner could
have filed a petition for a writ of certiorari in the United States Supreme Court - 90 days
after the Michigan Supreme Court denied Petitioner’s application for leave to appeal on
November 24, 2003. See Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (a conviction
becomes final when “the time for filing a certiorari petition expires”). The deadline for filing
the habeas petition expired one year later, or on February 22, 2005.
Petitioner filed his first post-conviction motion in the state trial court on March 29,
2007, over two years after a the statute of limitation already expired. Because Petitioner’s
post-conviction motion was filed after the limitations period expired, it did not act to toll or
reset the limitations period. See McMurray v. Scutt, 136 F. App'x 815, 817 (6th Cir. 2005)
(citing Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)).
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The petition is therefore time-barred unless Petition demonstrates grounds for
equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). A petitioner is entitled to
equitable tolling 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. (internal
quotation marks omitted). The party seeking equitable tolling bears the burden of proving
that he is entitled to it. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010).
The only argument in the petition suggesting a ground for equitably tolling is
Petitioner’s argument that he is actually innocent. The one year statute of limitations may
be equitably tolled based upon a credible showing of actual innocence under the standard
enunciated in Schlup v. Delo, 513 U.S. 298 (1995). See McQuiggin v. Perkins, 133 S. Ct.
1924, 1928 (2013); Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005). As explained
in Souter, to support a claim of actual innocence, a petitioner “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 (1998) (quoting Schlup, 513
U.S. at 327-28); see also House v. Bell, 547 U.S. 518, 537-39 (2006).
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. Furthermore, actual innocence means “factual
innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. In keeping with
Supreme Court authority, the Sixth Circuit has recognized that the actual innocence
exception should “remain rare” and “only be applied in the ‘extraordinary case.’” Souter,
395 F.3d at 590 (quoting Schlup, 513 U.S. at 321).
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Here, Petitioner asserts that he is actually innocent because in his first trial his wife
and he presented alibi testimony that Petitioner was at home babysitting at the time of the
offense. Dkt. 1, at 18. He claims to have another alibi witness as well. Id. Petitioner notes
that his first trial ended in a hung jury. This prior testimony is a far cry from the type of
newly presented evidence that make it more likely than not that no reasonable juror would
have convicted him. Bousley, 523 U.S. at 623. A reasonable juror very well might chose
not to credit the testimony of Petitioner, his wife, and some other person that Petitioner was
at home during the time of the offense in light of the evidence presented against him at trial.
Briefly, the prosecutor’s case was supported by the testimony of Darrell Deed, who
overheard the conversation where Troy King and Petitioner planned to “hit a lick” while they
were present at a house where Deed lived. Dkt. 7-14, at 69. King later arrived at the house
with two women. Id., 72-76. Deed later heard gunshots at the house, and he saw Petitioner
standing over one of the women with a handgun. Id., 79-80. Petitioner subsequently asked
Deed to help move the bodies, but he refused. Id, at 83. Deed later saw Petitioner and
another man put something rolled-up in the back of Petitioner’s pick-up truck. Id., 83-86.
Isaiah Murray testified that he ran the escourt service. Dkt. 7-15, at 74. The victims
worked for him, and he knew Petitioner. Petitioner’s brother worked security for him. Id.,
75-76. Murray testified that one of the victims was carrying about $4,000 dollars in cash on
the date of the murders, and King knew she had the money. Id., at 78-79, 86.
King, who had been convicted of armed robbery and conspiracy in relation to the
incident, testified against Petitioner. Id., at 103-04. He testified regarding details of the plan,
robbery, and murder, stating that he heard the shots when Petitioner was robbing the two
women. Id., at 106-112.
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In light of the evidence presented against Petitioner, his reliance on defense
evidence offered at his first trial presents neither the rare nor extraordinary case where
application of the statute of limitations would foreclose habeas review to a petitioner who
has made a substantial showing that he is actually innocent. See Souter, 395 F.3d at 590.
Accordingly, the Court will grant Respondent’s motion and dismiss the petition
because it was filed after expiration of the one-year statute of limitations, and Petitioner has
failed to demonstrate entitlement to equitable tolling.
III. Certificate of Appealability
Before Petitioner may appeal, a certificate of appealability must issue. See 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 relief on the merits, the substantial showing threshold
is met if the petitioner demonstrates that reasonable jurists would find the court’s
assessment of the claim debatable or wrong. See 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 district court was correct in
its procedural ruling. Id. Having undertaken the requisite review, the court concludes that
jurists of reason could not debate the Court’s procedural ruling. A certificate of appealability
will therefore be denied. Leave to appeal in forma pauperis is denied because an appeal
of this order could not be taken in good faith. 18 U.S.C. § 1915(a)(3).
IV. Order
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For the foregoing reasons, IT IS ORDERED that Respondent’s motion for summary
judgment is GRANTED, and the petition is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability and permission for
leave to appeal in forma pauperis are DENIED.

s/ Nancy G. Edmunds
Hon. Nancy G. Edmunds
United States District Judge
Dated:5/18/17

CERTIFICATION
I hereby certify that a copy of this order was served upon counsel/parties of record on this
18 of May, 2017 by regular mail and/or CM/ECF notification.
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s/ Carol J Bethel
Case Manager

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