Wells v. Haas

Filing 9

ORDER Granting 6 Motion to Dismiss and Granting Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DANTE ERIC WELLS,
Case Number: 2:16-CV-11781

Petitioner,

HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
SHAWN BREWER,
Respondent.
/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION
TO DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY
I. Introduction
Petitioner Dante Eric Wells, a state prisoner currently incarcerated at the Parnall
Correctional Facility in Jackson, Michigan, filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. He challenges his conviction for armed robbery, Mich.
Comp. Laws § 750.529. Respondent has filed a motion to dismiss, arguing that the
petition should be denied because it is untimely. The Court finds the petition for a writ of
habeas corpus is untimely and grants Respondent’s motion. The Court grants Petitioner a
certificate of appealability.
II. Procedural Background
Petitioner’s conviction arises from a robbery at a Subway Restaurant in West
Olive, Michigan, on July 28, 2016. Several witnesses testified that a man wearing a ski
mask and a hood pulled over his head and carrying what appeared to be a handgun

entered the restaurant sometime between 5:00 p.m. and 7:00 p.m. that day. He took
money from an employee and from the cash register and then attempted to leave the
restaurant. An employee struck the robber with a baton. The perpetrator was able to flee
the restaurant through the back staff entrance. He drove away in a white Dodge pickup
truck. A couple of Subway employees chased the vehicle, one threw a baton at it and the
other kicked it. Approximately fifteen minutes later, police located a vehicle matching
the description of the getaway vehicle in a gas station parking lot a little over a mile from
the Subway Restaurant. The next day, a gas station employee contacted police because a
bag containing a gun, a hooded sweatshirt, and a hat was found in one of the gas station’s
outside trash cans. The hooded sweatshirt yielded the only sample sufficient for a DNA
profile. The DNA profile from the sweatshirt did not match Petitioner’s DNA profile.
A jail informant testified that Petitioner provided him with numerous details about
the crime. Petitioner’s ex-girlfriend testified that in July 2006, Petitioner drove a white
pickup truck owned by someone named Jordan. Petitioner told her that someone had
chased him while he was driving the truck and hit the truck with a stick. Jason Jordan
testified that he lent Petitioner his mother’s white pickup truck on July 28, 2006 at
approximately 11:00 a.m. Petitioner told Jordan that he needed $500 by 5:00 p.m. Jordan
went to Petitioner’s home at approximately 11:30 p.m. that night. Neither Petitioner nor
the truck were there. Jordan called Petitioner who said that something had happened with
the truck, but he had wiped it clean, and told Jordan to report it as stolen.

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Following a jury trial in Ottawa County Circuit Court, Petitioner was found guilty
of one count of armed robbery. On August 20, 2007, he sentenced to 10 to 50 years’
imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, claiming that
the trial court erred in denying a motion to suppress custodial statements, the trial court
improperly denied motion for mistrial, Petitioner’s sentence violates state and federal
constitutions, and Petitioner should have been given credit for time served in jail. The
Michigan Court of Appeals affirmed Petitioner’s conviction and sentence. People v.
Wells, 280910, 2009 WL 454955 (Mich. Ct. App. Feb. 24, 2009). Petitioner attempted to
file an application for leave to appeal in the Michigan Supreme Court, but on April 22,
2009, the Michigan Supreme Court rejected the application because it was not timely
filed. See 7/11/16 Affidavit of Larry Royster, Clerk, Michigan Supreme Court, ECF No.
7-14.
On December 2, 2009, Petitioner filed a motion for relief from judgment in the
trial court, raising several claims of prosecutorial misconduct, insufficient evidence, and
ineffective assistance of counsel. The trial court denied the motion. 1/13/10 Opinion and
Order, ECF No. 7-12. The Michigan Court of Appeals denied Petitioner’s application for
leave to appeal. 11/24/10 Order, ECF No. 7-15. The Michigan Supreme Court also
denied leave to appeal. People v. Wells, 489 Mich. 990 (Mich. July 25, 2011).
In 2014, Petitioner filed a motion for DNA testing in the trial court. The exact date
Petitioner filed this motion is not clear from the record before the Court. It was filed
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sometime between April 22, 2014 (when Petitioner states he received documents
supporting his claim) and June 4, 2014, when the trial court denied the motion. For
purposes of this habeas petition, the Court assumes Petitioner filed the motion on the
earliest possible date, April 22, 2014. The trial court denied the motion on June 4, 2014,
and denied reconsideration on June 18, 2014. ECF No. 7-17, Pg. ID 958, 961. Petitioner
filed a delayed application for leave to appeal in the Michigan Court of Appeals, which
was denied on April 8, 2015. 4/8/15 Order, ECF No. 7-17, Pg. ID 935. The Michigan
Supreme Court denied leave to appeal on November 24, 2015. 11/24/15 Order, ECF No.
7-18, Pg. ID 965.
Petitioner filed the pending habeas petition on May 9, 2016.
III. Discussion
Respondent argues that the petition is barred by the one-year statute of limitations.
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, applies to all habeas
petitions filed after its effective date, April 24, 1996, and imposes a one-year limitations
period for habeas petitions. See 28 U.S.C. § 2244(d)(1). 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 time during which a prisoner seeks state-court collateral review of a conviction
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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 reset the limitation period at zero.
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
Petitioner appealed his conviction to the Michigan Court of Appeals, but not to the
Michigan Supreme Court. Michigan Court Rule 7.305(C)(2) allows a defendant fifty-six
days from the date of the Michigan Court of Appeals’ decision to file an application for
leave to appeal. Petitioner’s application for leave to appeal to the Michigan Supreme
Court was rejected because it was not timely filed. Thus, his conviction became final
when the time for seeking such review expired, April 21, 2009. See Gonzalez v. Thaler,
— U.S. —, 132 S. Ct. 641, 653-54 (2012). The one-year limitations period commenced
the following day, on April 22, 2009, and continued to run until December 2, 2009, when
Petitioner filed a motion for relief from judgment in the trial court. The motion for relief
from judgment tolled the limitations period with 141 days remaining. See 28 U.S.C. §
2244(d)(2) (“The time during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation....”). The limitations period continued to
be tolled until July 25, 2011, when the Michigan Supreme court denied Petitioner’s
application for leave to appeal. The limitations period resumed on July 26, 2011. It
continued to run, uninterrupted, until it expired 141 days later, on December 14, 2011.

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Petitioner admits that his petition was not timely filed, but argues that his showing
of actual innocence excuses the untimeliness. The Supreme Court has held that a
showing of actual innocence overcomes AEDPA’s statute of limitations. McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013). 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).
This standard does not require absolute certainty about the petitioner’s guilt or innocence:

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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.
Petitioner’s actual innocence claim relates to DNA evidence. First, he argues that
additional testing should have been performed on the sweatshirt found in the trash can.
DNA testing was performed on these items retrieved from the trash can outside the gas
station: swab from ski mask, swab from stocking, ½ sweatshirt tag, and swab from brown
gloves. Only the sweatshirt tag yielded a detectible profile. At trial, the jury was
informed that the DNA evidence found on the sweatshirt tag did not match Petitioner’s
DNA profile. Petitioner argues that additional testing should have been performed on the
sweatshirt because the original laboratory report prepared by the Forensic Science
Division of the Michigan State Police stated that chemical tests indicated the presence of
blood on the sweatshirt, but the company that performed the DNA analysis of the tag
failed to analyze the potential blood sample. Petitioner argues that if this blood sample
had been analyzed it may have identified another culprit and exonerated him. This
speculative claim is insufficient to satisfy Schlup’s demanding standard for “new reliable
evidence” of actual innocence. Schlup, 513 U.S. at 329. Accord Hammond v. Patterson,
No. 12-cv-935, 2014 WL 21617276, *3 (M.D. Ala. May 20, 2014) (speculative
possibility that DNA testing of evidence might reveal potentially exculpatory evidence
insufficient to satisfy Schlup’s actual innocence standard); Cummings v. Dovey, No. 07-

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8144, 2008 WL 4664975, at *5 (C.D. Cal.2008) (finding that claim based on the assertion
that DNA testing that had yet to be performed would have revealed another culprit was
speculative and did not constitute the “new reliable evidence” needed to support an actual
innocence claim).
Second, Petitioner states that, in 2010, the DNA profile obtained from the
sweatshirt was matched to an individual, Anthony Carlos Martinez, in the Michigan State
Police’s CODIS (Combined DNA Indexing System) database. Petitioner argues that this
match establishes his actual innocence. Significant evidence presented at trial linked
Petitioner to the getaway vehicle, including his own statement that he had wiped the
vehicle clean. Testimony also identified a motive for the robbery: Petitioner’s friend
Jordan testified that on the morning of the robbery Petitioner told Jordan that he needed
$500 by that evening. Petitioner’s statement to his girlfriend that someone had chased
him and thrown a stick at the vehicle while he was driving it, corresponded with the
circumstances surrounding the suspect’s fleeing the restaurant. In addition, while the
contributor of the DNA on the sweatshirt was not identified at trial, the jury was informed
that Petitioner was not the contributor of the DNA. The CODIS match does not convince
the Court that, when considered in light of all the evidence presented at trial, the match
would make it “more likely than not any reasonable juror would have reasonable doubt.”
House, 547 U.S. at 538. The petition is therefore time-barred.
Moreover, even if the petition was not time-barred, Petitioner’s sole claim for
habeas relief – that he is actually innocent – fails to state a claim upon which relief may
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be granted. Claims of actual innocence based on newly discovered evidence “have never
been held to state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506
U.S. 390, 400 (1993). “[F]ederal habeas courts sit to ensure that individuals are not
imprisoned in violation of the Constitution – not to correct errors of fact.” Id. In House
v. Bell, the Supreme Court declined to answer the question left open in Herrera – whether
a habeas petitioner may bring a freestanding claim of actual innocence. See House v.
Bell, 547 U.S. 518, 555 (2006) (noting that “in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the execution of a
defendant unconstitutional and warrant federal habeas relief if there were no state avenue
open to process such a claim”).
Citing Herrera and House, the Sixth Circuit has ruled that a free-standing claim of
actual innocence based upon newly-discovered evidence does not warrant federal habeas
relief. See Bowman v. Haas, No. 15-1485, 2016 WL 612019, *5 (6th Cir. Feb. 10, 2016)
(holding that a freestanding claim of actual innocence is not cognizable in a non-capital
federal habeas proceeding); Muntaser v. Bradshaw, 429 F. App’x 515, 521 (6th Cir.
2011) (“[A]n actual innocence claim operates only to excuse a procedural default so that a
petitioner may bring an independent constitutional challenge . . .Given that [petitioner]
alleges only a free-standing claim to relief on the grounds of actual innocence, his claim
is not cognizable . . . and, accordingly, does not serve as a ground for habeas relief.”).
Consequently, Petitioner’s claim that he is actually innocent and has newly-discovered
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evidence to prove his innocence fails to state a claim upon which habeas relief can be
granted.
IV. 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. Rule 11 of
the Rules Governing Section 2254 Proceedings requires that 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,
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).

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Having undertaken the requisite review, the Court concludes that jurists of reason
could find debatable whether Petitioner’s actual innocence claim excuses his failure to
timely file the petition.
V. 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 to Dismiss (ECF No. 6) and the petition for a writ of habeas corpus is
DISMISSED.
The Court GRANTS 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).
SO ORDERED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: March 20, 2017
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on March 20, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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