Solloway v. Winn

Filing 16

OPINION and ORDER Granting Petitioner's 11 Motion Amend 1 Petition for Writ of Habeas Corpus and Denying 10 MOTION for Evidentiary Hearing,. Signed by District Judge Terrence G. Berg. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY LEE SOLLOWAY,
Petitioner,
v.
THOMAS WINN,
Respondent.

2:18-CV-11679-TGB-PTM
HON. TERRENCE G. BERG
OPINION AND ORDER
GRANTING PETITIONER’S
MOTION TO AMEND
(ECF NO. 11) AND
DENYING MOTION FOR AN
EVIDENTIARY HEARING
(ECF NO. 10)

Petitioner Timothy Lee Solloway is a Michigan prisoner presently
confined at the Saginaw Correctional Facility in Freeland, Michigan.
Solloway is serving a life sentence for first-degree criminal sexual
conduct. He has filed a pro se petition for a writ of habeas corpus
seeking relief under 28 U.S.C. § 2254. Before the Court are Solloway’s
Motions to Amend (ECF No. 11) and for an Evidentiary Hearing
(ECF No. 10). For the reasons stated below, the Motion to Amend will
be GRANTED, and the Motion for an Evidentiary Hearing will be
DENIED.
I.

BACKGROUND

Solloway was accused and convicted of sexually assaulting his
nine-year-old son. In 2014, Solloway was convicted by bench trial of
first-degree criminal sexual conduct (person under 13) (CSC-I),

MCL § 750.520b(1)(a), and two counts of failure to comply with
Michigan’s Sex Offender Registration Act (“SORA”) in the Cass County
Circuit Court. The trial court sentenced him as a fourth-offense
habitual offender, MCL § 769.12, to concurrent terms of life
imprisonment for his criminal-sexual-conduct conviction and three to
seven years for his SORA convictions.
Solloway filed a direct appeal in the Michigan Court of Appeals,
raising claims concerning the sufficiency of the evidence, the
constitutionality of the SORA statute, ineffective assistance of trial
counsel, evidentiary error, the right to present a defense, and
prosecutorial misconduct. The Michigan Court of Appeals affirmed his
CSC-I conviction. Still, it vacated his convictions for failing to comply
with

SORA

and

remanded

for

correction

of

the

presentence

investigation report and the judgment of sentence. People v. Solloway,
891 N.W.2d 255, 274 (Mich. Ct. App. 2016). Solloway applied for leave
to appeal in the Michigan Supreme Court. On May 24, 2017, the
supreme court denied the application on the basis that it “was not
persuaded that the questions presented should be reviewed by this
[c]ourt.” People v. Solloway, 894 N.W.2d 604 (Mich. 2017).
On July 28, 2017, Solloway returned to the trial court and filed a
motion for relief from judgment containing the following claims:
I.

Whether Defendant’s newly discovered evidence – his
son recanting his trial testimony requires this Court to
order a Walker hearing in the interest of justice and
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vacate Defendant’s conviction based on the newly
discovered evidence?
II.

Whether the SANE Nurse being allowed to testify to
hearsay and stating to the judge that Defendant
sexually abused the alleged victim violated the
Confrontation Clause and deprived Defendant of a fair
trial requires reversal as a matter of law?

III.

Whether Defendant was denied the effective assistance
of trial counsel contrary to the Sixth Amendment of the
U.S. Constitution, which deprived Defendant of a fair
trial when counsel failed to request an expert, object to
inadmissible expert testimony, to call witnesses that
were exculpatory to Defendant’s defense and to call an
independent DNA expert requires this Court to grant
new trial?

IV.

Whether the trial court erred by not allowing
Defendant to introduce evidence that Defendant’s exwife coerced Defendant’s son to make false allegations
against Defendant prior to his allegations in this case?

V.

Whether the trial judge’s findings are contrary to the
facts and whether the judge failed to resolve credibility
issues in his findings which requires reversal and a
new trial?

On or about January 9, 2018, the trial court denied that motion on
the basis that the issues presented were addressed in Solloway’s direct
appeal and his claims did not entitle him to relief under Michigan Court
Rules 6.502(C) or 6.508(G)(2). ECF No. 15-10, PageID.779. Solloway
sought leave to appeal the decision, which the Michigan Court of
Appeals denied on September 4, 2018. People v. Solloway, No. 343238
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(Mich. Ct. App. Sep. 4, 2018). On or about November 2, 2018, Solloway
filed a timely application for leave to appeal to the Michigan Supreme
Court, as well as a motion to remand his case to the trial court for an
evidentiary hearing.
While his appeal was pending in the state appellate court,
Solloway filed his present petition in this Court, raising the sole claim
of ineffective assistance of trial counsel. Solloway also filed a motion to
stay and hold the petition in abeyance so that he could exhaust
additional claims in the state courts. ECF No. 5. On January 15, 2019,
the Court granted Solloway’s motion to stay and administratively closed
the case. ECF No. 7. His appeal and motion remained pending before
the state supreme court when the Court granted the motion to stay.
On May 24, 2019, the Michigan Supreme Court vacated the trial
court’s order denying the motion for relief from judgment and ordered
that Solloway’s case be remanded to the trial court for re-evaluation if
Solloway’s motion was not returned to him. People v. Solloway, 926
N.W.2d 809 (Mich. 2019). On August 9, 2019, the trial court issued a
letter returning the motion for relief from judgment to Solloway. ECF
No. 15-11, PageID.780. Solloway subsequently filed two other motions
for relief from judgment in the trial court, which the trial court
returned to him. ECF No. 15-1, PageID.309. At this time, Solloway has
not had his actual innocence claim adjudicated by the state courts.
Presently before the Court are Solloway’s motions to amend the
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habeas petition and for an evidentiary hearing. Solloway seeks to
amend his petition to assert a claim that he is actually innocent of his
CSC-I conviction based on his son’s unsworn recantation of his trial
testimony. He seeks an evidentiary hearing to develop further the facts
supporting the claim.
II.

DISCUSSION

First, the Court addresses Solloway’s Motion to Amend his
petition to add a claim of actual innocence. Under the Federal Rules of
Civil Procedure, a party may amend a pleading to which a response is
required within 21 days after service of the responsive pleading. See
Fed. R. Civ. P. 15(a)(1). Solloway filed his motion before Respondent
filed a response to the habeas petition; therefore, he has a right to
amend without seeking the Court’s permission. The Court will, thus,
grant his motion.
Second, Solloway seeks an evidentiary hearing on his actual
innocence claim. Solloway asserts that he is entitled to an evidentiary
hearing based on newly discovered evidence of a private investigator’s
transcript of an audio recording detailing the victim’s recanted
testimony. The Court concludes that an evidentiary hearing is not
warranted at this time.
The Court notes that “recanting affidavits are always viewed with
extreme suspicion.” See Williams v. Coyle, 260 F.3d 684, 708 (6th Cir.
2001) (internal quotation marks omitted); see also Herrera v. Collins,
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506 U.S. 390, 417 (1993) (rejecting habeas claim of actual innocence
because the “affiants’ statements are obtained without the benefit of
cross-examination

and

an

opportunity

to

make

credibility

determinations[,]” among other reasons). In addition, “the skepticism
with which a court examines such an affidavit is only heightened when
the recanting witness is a family member and the witness may have
feelings of guilt or may be influenced by family members seeking to
change the witness’s story.” United States v. Coker, 23 F. App'x 411, 412
(6th Cir. 2001). Skepticism about recantations is especially applicable in
cases of child sexual abuse, where recantation is a recurring
phenomenon, such as where family members are involved, and the child
has feelings of guilt or where family members seek to influence the
child to change the story. United States v. Miner, 131 F.3d 1271, 1273–
1274 (8th Cir. 1997) (quoting United States v. Provost, 969 F.2d 617,
621 (8th Cir. 1992)).
Under the Rules Governing Section 2254 Cases, the respondent is
required to submit all transcripts and documents relevant to the
determination of the habeas petition when the answer is filed. Rule 5,
28 U.S.C. foll. § 2254. The Court may require that the record be
expanded to include additional relevant materials. Rule 7, 28 U.S.C.
foll. § 2254. The Court may also determine whether an evidentiary
hearing is required after the answer and the state court record are filed.
Rule 8, 28 U.S.C. foll. § 2254. Under the federal habeas statute, facts
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determined by a state court are presumed correct, absent clear and
convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). An
evidentiary hearing is available under that rule only when the claim
relies upon a new rule of constitutional law or a new factual predicate,
and the facts underlying the claim would show by clear and convincing
evidence that no reasonable factfinder would have found the petitioner
guilty. 28 U.S.C. § 2254(e)(2).
The Court has yet to review this case in detail. Upon preliminary
review, however, the Court finds that an evidentiary hearing under
Rule 8 or 28 U.S.C. § 2254(e) is unnecessary based on the filings and
state-court record before it. The Court, however, shall bear in mind
Solloway’s request. Should the Court determine, upon further review,
that an evidentiary hearing is needed for the proper resolution of this
case, it will enter an appropriate order.
IT IS THEREFORE ORDERED that Solloway’s Motion to
Amend (ECF No. 11) is GRANTED, and his Motion for an Evidentiary
Hearing (ECF No. 10) is DENIED WITHOUT PREJUDICE.
SO ORDERED.

Dated: September 25, 2024

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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