Dickerson v. Palmer

Filing 7

MEMORANDUM AND ORDER GRANTING RESPONDENTS MOTION TO DISMISS (Doc. 4) AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GERALD PERRY DICKERSON,
Petitioner,
Case No. 17-cv-11438
v.
HON. AVERN COHN
CARMEN PALMER,
Respondent.
______________________________/
MEMORANDUM AND ORDER
GRANTING RESPONDENT’S MOTION TO DISMISS (Doc. 4)
AND DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Gerald Perry
Dickerson was convicted of second-degree murder, M.C.L. § 750.317, and sentenced to
thirty-nine to sixty years imprisonment. Petitioner, through counsel, challenges his
conviction on six grounds. Before the Court is Respondent’s motion to dismiss on the
grounds that the petition is untimely and Petitioner has not established that he is entitled
to equitable tolling or that he is actually innocent. The Court agrees. For the reasons
that follow, the motion will be granted.
II. Background
This case arose from the arson of a home on Eastwood Street in Detroit,
Michigan. The incident occurred about 4:30 a.m. on September 30, 2007. The two
homeowners safely escaped from the burning house, but their adult daughter who was
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spending the night in their home died a few days after the fire due to complications from
smoke and soot inhalation. Petitioner was arrested for the crime three years later and
then charged with first-degree (felony) murder and two counts of assault with intent to
commit murder. At his jury trial in Wayne County Circuit Court, prosecution witness
Anthenetha Johnson
testified that she heard [Petitioner] admit that he burned down the house.
[Anthony] Marshall testified that on the night the arson occurred,
[Petitioner] asked Marshall to be his lookout, and he saw [Petitioner]
carrying a bag of glass bottles towards the home where the arson
occurred. There was expert testimony presented that the fire was likely
caused by a Molotov cocktail, which is created using glass bottles.
People v. Dickerson, No. 306765, 2013 WL 195959, at *3 (Mich. Ct. App. Jan. 17, 2013)
(unpublished).1
Petitioner’s defense was that Johnson and Marshall were not credible witnesses
and that a third person, Curtis Hawkins, was the likely arsonist. The jury acquitted
Petitioner of the two counts of assault with intent to commit murder but found him guilty
of second-degree murder as a lesser offense to first-degree murder.
In an appeal of right, Petitioner argued that: (1) the trial court erred in admitting
evidence of (a) a previous attempt to firebomb the same house and (b) Petitioner’s
tether-monitoring device; and (2) trial counsel was ineffective for failing to file a notice of
intent to present evidence of Curtis Hawkins’ prior arson conviction. The Michigan
Court of Appeals rejected Petitioner’s arguments and affirmed his conviction. See
Dickerson, 2013 WL 195959. Petitioner presented the same issues to the Michigan

  Judge Michael J. Talbot concurred in the result only.  

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Supreme Court who denied leave to appeal because in a standard order. People v.
Dickerson, 834 N.W.2d 501 (Mich. 2013).
Two years later, in 2015, Petitioner filed a motion for relief from judgment in the
trial court. He argued that: (1) trial counsel was ineffective for failing to call Curtis
Hawkins at trial; (2) the trial court’s supplemental instructions to the jury deprived him of
a fair trial because they omitted the mens rea element for second-degree murder; (3)
the three-year delay between the alleged incident and his arrest deprived him of due
process; (4) the jury-verdict form was flawed because it did not provide an opportunity
for a general verdict of not guilty; and (5) the admission of out-of-court statements made
by Anthenetha Johnson and Anthony Marshall deprived him of due process and a fair
trial.
The trial court denied the motion for lack of merit and on the grounds that
Petitioner had failed to establish “good cause” under M.C.R. 6.508(D)(3) for failing to
raise his claims on appeal and “actual prejudice from the alleged irregularities.” People
v. Dickerson, No. 10-012687-01-FC (Wayne Cty. Cir. Ct. Aug. 5, 2015). The trial court
later denied reconsideration. People v. Dickerson, No. 10-012687-01-FC (Wayne Cty.
Cir. Ct. Sept. 9, 2015). The Michigan Court of Appeals denied leave to appeal because
Petitioner had “failed to establish that the trial court erred in denying the motion for relief
from judgment.” People v. Dickerson, No. 331635 (Mich. Ct. App. May 17, 2016). The
Michigan Supreme Court denied leave to appeal because Petitioner had failed to
establish entitlement to relief under Michigan Court Rule 6.508(D). People v.
Dickerson, 888 N.W.2d 80 (Mich. 2016). The Michigan Supreme Court later denied
reconsideration. People v. Dickerson, 891 N.W.2d 494 (Mich. 2017).
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On May 4, 2017, Petitioner filed the instant habeas petition. H presents the
following claims: (1) the trial court denied him due process by admitting propensity
evidence about Petitioner’s tethering device and the attempted arson on the night
before the actual arson; (2) trial counsel was ineffective for failing to call Curtis Hawkins
as a witness; (3) the trial court’s supplemental jury instructions deprived him of a fair
trial and properly instructed jury; (4) the three-year delay between the alleged incident
and his arrest deprived him of due process; (5) a flawed jury-verdict form did not provide
an opportunity for a general verdict of not guilty; and (6) the admission of certain out-ofcourt statements by Anthenetha Johnson and Anthony Marshall deprived him of due
process and a fair trial.
III. Discussion
A. Proper Motion
As an initial matter, Petitioner argues that the Court should strike Respondent’s
motion to dismiss because it does not address the substantive merits of his claims and
therefore it is not a proper responsive pleading. This argument lacks merit.
Although a motion to dismiss under Fed. R. Civ. P. 12(b)(6) may not be
appropriate in a habeas corpus proceeding, see Browder v. Director, Dep’t of Corr. of
Illinois, 434 U.S. 257, 269 n. 14 (1978), Respondent filed the motion under Rule 4 of the
Rules Governing Section 2254 Cases, which states in relevant part that,
[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner. If the petition is not
dismissed, the judge must order the respondent to file an answer, motion,
or other response within a fixed time, or to take other action the judge may
order.
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Because the Court did not summarily dismiss the petition, the magistrate judge
ordered Respondent to file a response to the petition. See Doc. 2. Respondent’s
motion to dismiss was an acceptable motion and response under Rule 4. The Court,
therefore, proceeds to address Respondent’s motion.
B. Statute of Limitations
1.
Petitioner “filed his petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), so it is subject to AEDPA’s stringent
standards.” Davis v. Bradshaw, __ F.3d __, __, No. 17-3262, 2018 WL 3913103, at *6
(6th Cir. Aug. 16, 2018) (citing Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009)).
Among other things, AEDPA established a one-year period of limitations for state
prisoners to file federal habeas corpus petitions. Wall v. Kholi, 562 U.S. 545, 550
(2011) (citing 28 U.S.C. § 2244(d)(1)). The 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).
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2.
Here, Petitioner did not apply for a writ of certiorari in the United States Supreme
Court on direct review of his conviction. Therefore, his conviction became final on
October 28, 2013, ninety days after the Michigan Supreme Court denied leave to appeal
on direct review. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Sup. Ct. R. 13.1.
The statute of limitations began to run on the following day and ran uninterrupted for
one year, until October 28, 2014. Petitioner filed his motion for relief from judgment in
state court about four months later, on February 25, 2015. By that time, however, the
limitations period had expired. The filing of the motion for relief from judgment did not
revive the limitations period or restart the limitations clock at zero. Vroman v. Brigano,
346 F.3d 598, 602 (6th Cir. 2003) (citing Rashid v. Khulmann, 991 F. Supp. 254, 259
(S.D. N.Y. 1998)). Therefore, even though Petitioner filed his habeas petition within a
month of the last state court’s order on collateral review, the petition is untimely,
because it was filed more than a year after the conclusion of direct review.
C. Equitable Tolling
AEDPA’s statute of limitations “is subject to equitable tolling in appropriate
cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). Nevertheless, 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
(2005)).

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Petitioner contends that he is entitled to equitable tolling of the limitations period
because he needed Curtis Hawkins’ affidavit to support the main claim in his motion for
relief from judgment: that trial counsel was ineffective for failing to call Hawkins as a
witness at trial.2 Mot. for Relief from J., Ex. A (Doc. 5-16, PageID. 1261-63). Petitioner

2  In his affidavit, dated February 5, 2015, Hawkins states that –

●

he was in police custody for an unrelated arson when Detroit detectives
questioned him about the Eastwood Street arson;

●

the police told him that Petitioner and other individuals had implicated him in the
Eastwood Street arson and that he could be prosecuted for the crime, but if he was
willing to testify against Petitioner, the police would arrange to have his prison time
reduced on the unrelated arson case;
he refused to implicate Petitioner in the Eastwood Street case, but he did tell the
detectives that people in the neighborhood were saying that Anthony Marshall was the
person responsible for the Eastwood Street firebombing;

●

before Petitioner’s trial, he was asked whether he was in a car with Petitioner and
Anthenetha Johnson when Petitioner stated that he committed the arson on Eastwood
Street and that he was paid to do it; he (Hawkins) responded to the question by stating
that such a conversation never happened and that he was willing to testify to that fact at
Petitioner’s trial;

●

he informed Petitioner’s lawyer that Johnson was a liar, that she was having financial
troubles, and that she waited four years to provide the police with information about the
arson; and

●

he was placed in the courtroom bullpen during the week of Petitioner’s trial, but
Petitioner’s lawyer informed him in the bullpen that the attorney would not be calling
Hawkins as a witness because Detroit detectives had said that Hawkins “had given up”
Petitioner and provided the detectives with the telephone number for Petitioner’s
mother. As a result, he did not testify at Petitioner’s trial.
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asserts that he was unable to obtain Hawkins’ affidavit until February 5, 2015, which
was twenty days before he filed his motion for relief from judgment in the state trial
court.
The basis for Petitioner’s claim about trial counsel, however, was that counsel
failed to call Curtis Hawkins as a witness at trial. Petitioner obviously became aware of
his attorney’s allegedly deficient performance at trial when his attorney failed to call
Hawkins as a defense witness. He and Hawkins, moreover, apparently were part of
the same group of friends at the time of the crime, see 9/21/11 Trial Tr. at 127-28 (Doc.
5-12, PageID. 971-72), and he was informed of Hawkins’ place of incarceration during
his trial, id. at 276-79 (PageID. 1120-23). In addition, Hawkins implies in his affidavit
that, before Petitioner’s trial, he informed defense counsel that Petitioner did not admit
to committing the arson and that he was willing to testify to this fact at Petitioner’s trial.
Under the circumstances, Petitioner was not diligent in acquiring Hawkins’ affidavit or in
filing his state-court motion for relief from judgment sooner.
Even if the Court had concluded that Petitioner was diligent in pursuing his rights,
he has not shown that some extraordinary circumstance stood in his way of filing a
timely habeas petition. Two weeks after the Michigan Supreme Court denied leave to
appeal on direct review, Petitioner’s appellate attorney informed him that he had two
options: file a motion for relief from judgment in state court or file a petition for the writ
of habeas corpus petition in federal court. The attorney explained to Petitioner that a

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federal habeas petition had to be filed within one year of the Michigan Supreme Court’s
decision. See 8/13/13 letter to Petitioner (Doc. 5-23, PageID. 1513). Petitioner then
waited about a year and a half before he filed his motion for relief from judgment in state
court. As noted above, this was about four months after the limitations period expired.
In sum, Petitioner was not diligent in pursuing his claims, and no
extraordinary circumstance stood in Petitioner’s way and prevented him from filing a
timely habeas petition. Equitable tolling of the limitations period is not warranted.
D. Actual Innocence
Petitioner maintains his innocence, and actual innocence, if proved, serves as a
gateway through which a habeas petitioner may pass when the impediment to
consideration of the merits of his constitutional claims is the expiration of the statute of
limitations. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). “To be credible, [a claim
of actual innocence] requires [the] petitioner to support his allegations of constitutional
error with new reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that was not presented
at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
The Supreme Court has cautioned “that tenable actual-innocence gateway pleas
are rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades
the district court that, in light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.’ ” McQuiggin, 569 U.S. at 386
(quoting Schlup, 513 U.S. at 329). “[T]he court must make ‘a probabilistic determination
about what reasonable, properly instructed jurors would do’” and “assess the likely
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impact of the evidence on reasonable jurors.” House v. Bell, 547 U.S. 518, 538 (2006)
(quoting Schlup, 513 U.S. at 329). The actual-innocence gateway “is a narrow one,”
Davis, 2018 WL 3913103, at *8, and “it bears repeating that the Schlup standard is
demanding and permits review only in the ‘extraordinary’ case.” House, 547 U.S. at 538
(quoting Schlup, 513 U.S. at 327).
Petitioner’s only “new” evidence is Curtis Hawkins’ affidavit, which states that the
conversation Petitioner supposedly had with him in Johnson’s presence never
happened and that Johnson is a liar. This is not new evidence because Hawkins states
in his affidavit that he was asked before trial whether he was present when Petitioner
admitted to committing the arson. According to Hawkins, he responded to the question
by saying that the conversation never happened and he was willing to say that at
Petitioner’s trial.
Even if Hawkins’ affidavit were considered new evidence, and even assuming
that he would have testified that Petitioner never admitted to committing the arson,
Hawkins informed police officer Lance Sullivan long before Petitioner’s trial that
Petitioner was involved with the Eastwood Street arson. 9/21/11 Trial Tr. at 266 (Doc.
5-12, PageID. 1110). It is unlikely that the jury would have found his conflicting
testimony to be credible, as “[r]ecanting affidavits and witnesses are viewed with
extreme suspicion.” United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991),
superseded in part on other grounds by U.S.S.G. § 2D1.5(a).
Furthermore, there was substantial evidence that supported Hawkins’ initial
incriminating statement to Officer Sullivan about Petitioner. Johnson, for example,
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testified that she lived on Eastwood Street in 2007 and that, on September 30, 2007,
she noticed a burned house on her way to work. That afternoon, Curtis Hawkins and
Petitioner picked her up from work. During the ride home, Petitioner admitted to
Hawkins that he had set fire to the house on Eastwood with a cocktail or little firebomb
and that he was paid to do it by someone who was upset because an older gentleman
had been calling the police. A few days later when Hawkins mentioned to Petitioner
and Ms. Johnson that a woman had died in the fire, Petitioner said he did not care
because his family had to eat. She (Johnson) made an anonymous call to a crimereporting number, but she delayed talking to a police officer for a year because she had
four children and she was afraid that someone would retaliate against her for reporting
what she knew. She agreed to be a witness in the case after she received $9,600 to
move out of the neighborhood. 9/21/11 Trial Tr. at 129-43 (Doc. 5-12, PageID. 973-87).
Anthony Marshall testified that, on the night in question, Petitioner approached
him on Saratoga Street and asked him to take a walk with him. Petitioner was carrying
a plastic bag with glass bottles in it at the time, and when they arrived at Eastwood
Street, Petitioner told him to wait at the corner while he did something. Petitioner also
instructed him to give a signal or to yell if he saw anything. Petitioner then walked up
Eastwood past six or seven houses, disappeared for a minute by a house, and then ran
back to Marshall without the bag. The two of them then ran back to Saratoga Street.
On their way, Petitioner told him not to say anything about the incident. Petitioner later
gave him money as an expression of thanks for looking out for him.

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Continuing, Marshall stated that he did not report the incident to the police after
he learned there had been a fire on Eastwood Street, because he was afraid that
Petitioner might jump him or even kill him. However, on November 26, 2007, when
Marshall was in jail, he spoke with the police and informed them what had happened.
He subsequently refused to testify at Petitioner’s preliminary examination because he
was afraid of Petitioner and of being charged with a crime. He was later granted
immunity from prosecution. Id. at 44-58 (Doc. 5-12, PageID. 888-902).
Police officer Scott Shea confirmed that, during an interview with Anthony
Marshall on November 26, 2007, Marshall told him about Petitioner approaching
Marshall on September 30, 2007, and later compensating him for acting as his lookout.
9/20/11 Trial Tr. at 157-64 (Doc. 5-11, PageID. 760-67). Officer Shea also testified
about his contacts with Anthenetha Johnson and what he learned about the crime from
Ms. Johnson. He confirmed that Ms. Johnson initially was unwilling to be a witness due
to fear for herself and her children. Id. at 165-72 (PageID. 768-75). Finally, Officer
Shea testified that he learned about Anthony Marshall from Curtis Hawkins in November
of 2007 and that he did not prepare a written statement regarding his conversation with
Hawkins because Hawkins, too, was afraid. 9/20/11 Trial Tr. at 226-28 (Doc. 5-11,
PageID. 829-31).
Given the substantial evidence of Petitioner’s guilt and the fact that Curtis
Hawkins initially implicated Petitioner in the crime, no reasonable juror would have
voted to acquit Petitioner of the murder charge if Hawkins had testified consistently with

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his affidavit. Therefore, Petitioner is not entitled to pass through the narrow actualinnocence gateway and have his claims decided on their merits.
IV. Conclusion
For the reasons stated above, the habeas petition is time-barred, and Petitioner
is not entitled to statutory or equitable tolling of the limitations period. Petitioner also
has not alleged a credible claim of actual innocence.
Accordingly, Respondent’s motion for dismissal of the habeas petition (Doc. 4) is
GRANTED, and the habeas petition (Doc. 1) is DISMISSED.
Petitioner may not appeal the Court’s denial of his habeas petition unless a
district or circuit judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A);
Fed. R. App. P. 22(b)(1). 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). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When, as in this case, “the district court denies a
habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a [certificate of appealability] should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Slack, 529
U.S. at 484.
Petitioner’s habeas petition is clearly time-barred. Therefore, reasonable jurists
could not conclude that the Court’s procedural ruling is incorrect or that the petition
states a valid claim of the denial of a constitutional right. Accordingly, the Court
DECLINES to issue a certificate of appealability.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 9/7/2018
Detroit, Michigan

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