Dinwiddie v. Woods

Filing 8

OPINION and ORDER granting 5 MOTION to Dismiss, dismissing Petition for Writ of Habeas Corpus, Granting Certificate of Appealability, and Granting permission to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHESTER DINWIDDIE,
Petitioner,

Case No. 2:16-cv-13352
Hon. George Caram Steeh

v.
JEFFREY WOODS,
Respondent.
_________________________/
OPINION AND ORDER (1) GRANTING RESPONDENT’S MOTION
TO DISMISS [Dkt. 5], (2) DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS, (3) GRANTING CERTIFICATE OF APPEALABILITY,
AND (4) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
Chester Dinwiddie, (“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 1987 Recorder’s Court for the City of Detroit
jury trial convictions of one count of first-degree murder, MICH. COMP. LAWS § 750.316,
three counts of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, and
possession of a firearm during the commission of a felony. MICH. COMP. LAWS §
750227b. As a result of these convictions, Petitioner is serving a controlling sentence of
life imprisonment without possibility of parole. The petition raises four claims: (1)
Petitioner is entitled to a new trial in light of new reliable evidence proving that he is
actually innocent, (2) Petitioner was denied the effective assistance of trial counsel, (3)
Petitioner’s jury was erroneously informed that two prosecution witnesses would be
charged with perjury if they did not testify truthfully, and (4) the prosecutor committed
misconduct by appealing to the religious beliefs of the jurors.

-1-

This matter is before the Court on Respondent’s motion to dismiss the petition as
untimely filed. Petitioner has filed a response to the motion asserting that the
untimeliness of his petition should be excused because he can demonstrate that he is
actually innocent. Petitioner supports his contention with an affidavit from another
prisoner who claims that Petitioner was not with him when he committed the crime.
For the reasons stated below, 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 grounds for
equitable tolling based on his claim of actual innocence. The Court will, however, grant
a certificate of appealability and grant permission to proceed on appeal in forma
pauperis.
I. Background
Petitioner and his co-defendant, Samuel Green, were charged with crimes
related to an August 10, 1986, drive-by shooting occurring on a Detroit residential street
which resulted in the death of an eight-year-old girl, Tanisha Baldwin. Three other
children who were playing in the house with the deceased victim suffered non-fatal
gunshot wounds.
The evidence presented at trial indicated that two drug gangs, one led by Charles
Giles and the other by Gary Harris, were involved in a territorial dispute.1 On the day of
the shooting, Darryl Bell, who was in Giles’s gang, fired a shot at a member of Harris’s

1

Petitioner’s post-conviction counsel provided a narrative summary of the
evidence introduced at trial, and the prosecutor’s responsive pleading accepted the
summary as accurate. See Dkt. 6-10, at Page ID 11-16; Dkt. 6-15, Page ID 36. The trial
transcripts filed by Respondent are incomplete, so the background facts are derived, in
part, from the statement of facts filed by Petitioner’s state post-conviction counsel.
-2-

gang. Later that day, Giles called the apartment of Pamela Foster, and spoke to her
boyfriend, Robert Thomas to ask him to gather a group of men to retaliate.
Pamela Foster testified that after the call Thomas went into the stairwell of her
apartment building to gather gang members. Petitioner accompanied Thomas back into
her apartment from the stairwell to retrieve weapons, and then Foster saw a brown van
pull in the front of the building. Several of the men got into the van, but Foster could not
identify which ones did so. The van then drove away.
Tonya Hall testified that the van arrived at Giles’s location about half an hour
after he called Thomas. Two men exited the van with weapons in their hands. They
were dressed with hooded sweat suits, so Hall was unable to identify them. Hall testified
that Darryl Bell got into the van to give directions to Harris’s house. The van then drove
away. As it turned out, Bell was mistaken about the location of Harris’s house and
directed the van to the house occupied by the four children.
Moments later a number of shots were fired at the house and struck the young
victims, killing one and injuring three others. Bell testified under a grant of immunity that
Petitioner was among the men in the van, and he was armed with a long gun. Bell also
testified that Petitioner got out of the van and was one of the men who fired shots at the
house. Bell testified that he fired a single shot at the house.
Foster testified that she saw the van return to her apartment building. Thomas
and Petitioner were the only men who Foster identified as coming back into her
apartment with guns. Foster testified that Thomas gave Petitioner clothes that he had
on, including a hooded sweatshirt. Foster asked Thomas why he did this, and Thomas
explained that Petitioner was going to “take the rap” for being caught with some

-3-

cocaine. Thomas instructed Foster to get together some clothes because they were
leaving immediately for Atlanta.
The day after the shooting, police officers received an anonymous tip and
arrested Bell. Bell made statements to the police under a grant of immunity. He led
police officer’s to Foster’s apartment. Police searched the apartment on August 13th,
where they found Petitioner and his co-defendant Green present with the weapons that
were used in the shooting. A police officer testified that he questioned Petitioner on
August 14th about the shooting. Petitioner said that he did not know anything about the
incident other than what he heard on the news.
Based on this evidence, Petitioner was convicted of the offenses indicated
above, and he was sentenced to a non-parolable life term as well as lesser terms.
Petitioner filed an appeal of right with the Michigan Court of Appeals. On
September 7, 1989, the Michigan Court of Appeals issued an unpublished opinion
affirming his convictions. People v. Dinwiddie, No. 105190 (Mich. Ct. App. Sept. 7,
1989). Petitioner filed an application for leave to appeal in the Michigan Supreme Court.
The Michigan Supreme Court denied the application by standard order. People v.
Dinwiddie, No. 87203 (Mich. Sup. Ct. May 31, 1991).
On August 26, 1991, Petitioner filed a motion for relief from judgment in the trial
court, in which he first asserted his claim of innocence based on an affidavit executed
by Robert Thomas. The affidavit indicates that Petitioner was not present in the van with
Thomas when he committed the crime. See Dkt. 6-10, Appendix II. Thomas states that
he pled guilty to second-degree murder in connection with the incident after Petitioner’s
trial. Id. The trial court denied the motion by order dated February 3, 1992.

-4-

Petitioner filed a delayed application for leave to appeal in the Michigan Court of
Appeals. The Michigan Court of Appeals denied the application “for lack of merit.”
People v. Dinwiddie, No. 149204 (Mich. Ct. App. July 14, 1992). Petitioner applied for
leave to appeal to the Michigan Supreme Court. On April 13, 1993, the Michigan
Supreme Court denied the application over two dissents that indicated the case should
be remanded for a hearing on the credibility of the recanting affiant. People v.
Dinwiddie, 502 N.W.2d 40 (Mich. 1993) (Table).
Over two decades later, on April 19, 2014, Petitioner filed a second motion for
relief from judgment. The motion raised claims of ineffective assistance of trial counsel,
and it was again supported by Thomas’s affidavit. The trial court denied this motion on
May 28, 2014. Petitioner filed a delayed application for leave to appeal in the Michigan
Court of Appeals. On December 4, 2014, the Michigan Court of Appeals denied the
application pursuant to Michigan Court Rule 6.508(D). People v. Dinwiddie, No. 323807
(Mich. Ct. App. Dec. 4, 2014). Petitioner applied for leave to appeal to the Michigan
Supreme Court. On December 22, 2015, the Michigan Supreme Court denied the
application under the same court rule. People v. Dinwiddie, 872 N.W.2d 435 (Mich.
2015) (Table).
Petitioner signed and dated his present habeas petition on September 8, 2016.
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
-5-

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).
Here, Petitioner’s conviction and sentence became final sometime in 1991, after
the Michigan Supreme Court denied relief on his direct appeal, and well before
AEDPA’s effective date, which was April 24, 1996. Prisoners whose convictions became
final before AEDPA’s effective date, such as Petitioner, were given a one-year grace
period to file their federal habeas petitions. Jurado v. Burt, 337 F.3d 638, 640 (6th Cir.
2003). Petitioner was therefore required to file his federal habeas petition on or before
April 24, 1997.
The record before the Court indicates that Petitioner filed two rounds of state
post-conviction review, one prior to AEDPA’s effective date, and the other in 2014,
about seventeen years after the one-year grace period expired. A state court
post-conviction motion that is filed after the expiration of the limitations period cannot toll
the period because there is no period remaining to be tolled. 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. 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). Accordingly, nothing Petitioner filed in the state
courts acted to toll the limitations period under § 2244(d)(2). Petitioner submitted his
federal habeas petition on September 8, 2016, almost two decades after the one-year
grace period expired.
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)
-6-

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).
Petitioner asserts that he is entitled to equitable tolling because 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, 185 L. Ed. 2d
1019 (2013). The Supreme Court cautioned, however, that “tenable actual-innocence
gateway pleas are rare[.]” Id. To succeed on such a claim, a habeas applicant must
show that “in light of new evidence, ‘it is more likely than not that no reasonable juror
would have found [the petitioner] guilty beyond a reasonable doubt.’” House v. Bell, 547
U.S. 518, 537 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Petitioner’s claim of actual innocence is founded on Thomas’s affidavit. Thomas
pled guilty to second-degree murder in connection with the shootings on November 15,
1988, after Petitioner’s trial ended, but while Petitioner’s direct appeal was still pending
in the state appellate courts. Dkt. 6-10, at Page ID 23-45. Thomas executed his affidavit
in prison on February 13, 1991. Id., at 50.2 Thomas states that Petitioner was not
present in the car when the shooting occurred. He explains that he paid Petitioner to
stay at his apartment when he went out to commit the crime, and he paid him again
after the shooting to stay at the apartment while he fled to Atlanta. Id., at 49-50. Thomas

2

An earlier version of Thomas’s affidavit was executed on August 9, 1990, and
appears in Petitioner’s second motion for relief from judgment. See Dkt. 6-13, Page ID,
25-26. This affidavit also asserts that Petitioner’s co-defendant Green also stayed
behind at the apartment at the time of the shooting. Id., at 26.
-7-

explains (in his second affidavit only) that he did not come forward at the time of
Petitioner’s trial because the charges against him had not yet been resolved. Id.
Thomas’s first affidavit dubiously claims that if he had been asked by Petitioner’s
attorneys to do so, he would have testified in their defense at trial. Dkt. 6-13, at Page ID
26.
A Court “may consider how the timing of the submission [of new evidence of
innocence] and the likely credibility of a petitioner’s affiants bear on the probable
reliability of . . . the evidence of actual innocence.” Schlup, 513 U.S. at 332. Here,
Petitioner first submitted Thomas’s affidavit to the state courts in 1992, during his first
round of state post-conviction review. Accordingly, he presented the affidavit on state
post-conviction review within months of obtaining it. When that proceeding ended,
however, Petitioner waited until 2014 to renew his request for relief. He offers no good
explanation for this over two-decade delay for his failure to raise his claim of actual
innocence in federal court. Statements from witnesses made years after the crime are
inherently suspect, see Schlup, 513 U.S. at 331, and such statements are viewed with
“a fair degree of skepticism.” Herrera, 506 U.S. at 423 (O'Connor, J., concurring).
Petitioner seeks an evidentiary hearing to support his claim of actual innocence,
and whether to hold one falls with the discretion of the Court. Sawyer v. Hofbauer, 299
F.3d 605, 610 (6th Cir. 2002). “In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Turner v. Romanowski,
409 Fed. App’x 922 (6th Cir. 2011) (affirming denial of affidavit-based actual innocence
claim without evidentiary hearing).
-8-

Here, even if Petitioner were able to have Thomas testify in accordance with his
affidavit, Petitioner cannot demonstrate that it is more likely than not that no reasonable
juror would have found him guilty beyond a reasonable doubt. A reasonable juror
hearing all the trial evidence as well as Thomas’s version of events could easily choose
to believe the trial testimony of Bell, Hall, and Foster indicating Petitioner’s participation
in the shooting despite Thomas’s testimony that Petitioner was not in the van. At the
time Thomas executed his affidavit he was in the Michigan Department of Corrections
with Petitioner. The two men were in the same drug gang, it is not difficult to see how
Thomas’s credibility could be effectively challenged on this basis. Petitioner’s case
therefore falls outside of the actual innocence tolling exception because he has
presented no new, reliable evidence to establish that he was actually innocent of the
crime charged. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005).
Accordingly, the petition was untimely filed and will be dismissed under §
2244(d).
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
-9-

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 debate the Court’s procedural ruling. The Court notes that two Michigan Supreme
Court Justices dissented from the order denying Petitioner’s first application for state
post-conviction relief, stating they would remand the case for a hearing to determine
Thomas’s credibility. Furthermore, the Court was not furnished with a complete copy of
the trial record. Although it was able to review the critical prosecution testimony given by
Bell (Dkt. 6-7) and Hall (Dkt. 6-8), it was forced to rely on a summary of Foster’s
testimony, which also formed a crucial part of the prosecutor’s case. A certificate of
appealability will therefore be granted on whether the petition was properly dismissed
for failure to comply with the statute of limitations. Leave to appeal in forma pauperis is
granted because an appeal of this order could be taken in good faith. 18 U.S.C. §
1915(a)(3).
IV. Order
For the foregoing reasons, IT IS ORDERED that Respondent’s motion to dismiss
[dkt. 5] 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 GRANTED.
Dated: April 28, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

-10-

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 28, 2017, by electronic and/or ordinary mail and also on
Chester Dinwiddie #188608, Chippewa Correctional Facility,
4269 W. M-80, Kincheloe, MI 49784.
s/Barbara Radke
Deputy Clerk

-11-