Easterling v. Horton
Filing
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MEMORANDUM OPINION and ORDER Granting Respondent's 11 MOTION to Dismiss, Dismissing the 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Denying Leave to Proceed on Appeal In Forma Pauperis. Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEMONTE EASTERLING,
Petitioner,
Case No. 20-cv-13397
v.
U.S. DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
CONNIE HORTON,
Respondent.
______________ /
OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO
DISMISS [#11], DISMISSING THE PETITION FOR A WRIT OF HABEAS
CORPUS [#1], DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
I.
INTRODUCTION
Petitioner DeMonte Easterling (“Petitioner”) has filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held
in violation of his constitutional rights. Following a joint jury trial with his halfsister, co-defendant Bria Blackmon, in the Macomb County Circuit Court in 2016,
Petitioner was convicted of first-degree felony murder, second-degree murder,1
armed robbery, and conspiracy to commit armed robbery. He was sentenced to life
1
The second-degree murder conviction and sentence were vacated on direct appeal
in the state courts.
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imprisonment without the possibility of parole on the murder conviction and to
concurrent terms of 37 ½ to 75 years imprisonment on the other convictions. In his
pleadings, he raises claims concerning the sufficiency of the evidence, the failure
to preserve evidence, the effectiveness of trial counsel, and the admission of his
police statement. ECF No. 1.
Presently before the Court is Respondent’s motion to dismiss the habeas
petition as untimely under the one-year statute of limitations applicable to federal
habeas actions. ECF No. 11. Petitioner has not filed a reply to the response.
Having reviewed the matter, the Court concludes that the habeas petition is
untimely and must be dismissed. The Court also concludes that a certificate of
appealability must be denied.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner’s convictions arise from the robbery and beating death of a man at
his home in Sterling Heights, Michigan in March 2015. On direct appeal, the
Michigan Court of Appeals described the relevant facts, which are presumed
correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009), as follows:
Defendants' convictions arise from the robbery and beating death of
Michael Scott Freeland at his home in Sterling Heights, Michigan.
Freeland had posted an Internet advertisement seeking a submissive
woman under the age of 30 who was willing to have his children.
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Blackmon responded to the advertisement and began a relationship
with Freeland. Early in the morning on March 27, 2015, about a week
after Blackmon and Freeland began their relationship, Blackmon and
Easterling went to Freeland's home. Later that morning, authorities
discovered Freeland's body inside his house after a neighbor reported
a fire at the house.
An autopsy revealed that Freeland had several blunt force injuries to
his face and head, including lacerations to his scalp and face, bruising
on his scalp and face, multiple skull fractures, and injury to his brain.
He also had defensive wounds on his right forearm and hand. The
cause of death was blunt force trauma to the head.
The prosecution's theory at trial was that both defendants beat
Freeland, intending to kill and rob him. A few days before the offense,
Blackmon had tried to recruit a friend to kill an acquaintance. Cell
phone records showed that both defendants were in the area of
Freeland's home on the morning of March 27, and surveillance
recordings captured Blackmon purchasing gasoline at a Sunoco
station and purchasing a computer tablet at a Meijer store with
Freeland's credit card. Other attempted purchases by Blackmon using
Freeland's credit card were denied. A search of Blackmon's vehicle
led to the discovery of a jacket with Freeland's blood and DNA on it.
Freeland had a medical marijuana card, and a jar of marijuana was
also discovered inside Blackmon's vehicle. Several of Freeland's
credit cards and pieces of identification were discovered during a
search of Blackmon's home.
Both defendants gave multiple statements to the police. Blackmon
initially admitted being at Freeland's home, and admitted striking him
with lamp and a baseball bat after an argument, but claimed that he
was alive and responsive when she left. In a second statement, she
again admitted hitting Freeland with a bat and a lamp after an
argument, and also admitted taking his wallet. Easterling first told the
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police that he went with Blackmon to Freeland's house to buy
marijuana, but denied being involved in any plan to assault or rob
Freeland. In a second statement, Easterling told the police that he
punched Freeland and knocked him to the floor, and then took a
laptop computer from his house. Easterling said that, after leaving the
house, he had his girlfriend pick him up and he threw a dumbbell out
the car window while driving along I–75. The police later found two
dumbbells along I–75 that contained Freeland's DNA. Easterling
testified at trial and denied assaulting or robbing Freeland. He also
denied telling the police that he assaulted or robbed Freeland.
People v. Easterling, No. 332702, 2017 WL 5759952, *1-2 (Mich. Ct. App. Nov.
28, 2017) (unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals, raising claims concerning the sufficiency of
the evidence, double jeopardy, and the failure to preserve evidence. The court
vacated Petitioner’s second-degree murder conviction and sentence on double
jeopardy grounds and remanded the case to the trial court, but it denied relief on
the other claims and affirmed his other convictions and sentences. Id. at *7-10.
Petitioner did not seek leave to appeal in the Michigan Supreme Court. ECF Nos.
11-2, 12-16.
The trial court issued an amended judgment of sentence on February 6,
2018. ECF No. 11-3.
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On November 1, 2018, Petitioner filed a motion for relief from judgment
with the state trial court raising claims concerning improper joinder, the admission
of police statements, and the effectiveness of trial and appellate counsel, which
was denied on the merits. People v. Easterling, No. 2015-2499-FC (Macomb Co.
Cir. Ct. Nov. 30, 2018); ECF Nos. 12-17, 12-18. He then filed a delayed
application for leave to appeal with the Michigan Court of Appeals, which was
denied for failure to show that the trial court erred. People v. Easterling, No.
348136 (Mich. Ct. App. July 2, 2019); ECF No. 12-19. He also filed an
application for leave to appeal with the Michigan Supreme Court, which was
denied pursuant to Michigan Court Rule 6.508(D). People v. Easterling, 505
Mich. 943, 936 N.W.2d 311 (Dec. 23, 2019); ECF No. 12-20.
Petitioner dated his federal habeas petition on December 13, 2020. ECF No.
1. Respondent filed the instant motion to dismiss on August 13, 2021. ECF Nos.
11, 12. Petitioner has not filed a reply to the response.
III.
LAW & ANALYSIS
A. Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified at 28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The
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AEDPA includes a one-year statute of limitations for habeas petitions brought by
prisoners challenging state court judgments. The statute provides:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment
of a State court. The limitation period shall run from the latest of-(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.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
28 U.S.C. § 2244(d). A habeas petition filed outside the proscribed timeframe
must be dismissed unless the petitioner is entitled to equitable tolling. See
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Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745 (6th Cir. 2011) (dismissing
petition filed five days late); Wilson v. Birkett, 192 F. Supp. 2d 763, 765 (E.D.
Mich. 2002) (“A federal court will dismiss a case where a petitioner for a writ of
habeas corpus does not comply with the one year statute of limitations.”).
B. Discussion
As a threshold matter, the Court must determine whether Petitioner has
complied with the one-year statute of limitations. To be sure, “district courts are
permitted . . . to consider sua sponte, the timeliness of a state prisoner’s federal
habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006).
Petitioner’s convictions became final after the AEDPA’s April 24, 1996
effective date. The trial court issued the amended judgment of sentence on
February 6, 2018. Petitioner then had six months to file an appeal with the
Michigan Court of Appeals. See Mich. Ct. R. 7.205(A)(2)(a) (amended in 2011
and reconfigured since). He did not do so. His convictions thus became final on
August 6, 2018 when the time for filing an appeal with the Michigan Court of
Appeals expired. See Williams v. Birkett, 670 F.3d 729, 731 (6th Cir. 2012)
(holding that petitioner’s convictions became final when the time for filing an
appeal with the Michigan Court of Appeals expired); see also Gonzalez v. Thaler,
565 U.S. 134, 154 (2012) (holding that when a petitioner does not seek review in a
state’s highest court, the judgment becomes final when the time for seeking such
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review expires). The one-year period began running the day after the new
judgment became final. See King v. Morgan, 807 F.3d 154, 158 (6th Cir. 2015)
(the one-year period restarts if a petitioner is re-sentenced and a new judgment of
sentence is issued). Accordingly, Petitioner was required to file his federal habeas
petition by August 6, 2019, excluding any time during which a properly filed
application for state post-conviction or collateral review was pending in
accordance with 28 U.S.C. § 2244(d)(2).
Petitioner filed his motion for relief from judgment with the state trial court
on November 1, 2018. At that point, 86 days of the one-year period had expired.
The one-year period remained tolled while the motion was pending in the state
courts. The Michigan Supreme Court denied leave to appeal on December 23,
2019. The one-year period was thus tolled until that date. It resumed running the
next day and expired 279 days later – on or about September 27, 2020. The
AEDPA’s limitations period does not begin to run anew after the completion of
state post-conviction proceedings. See Searcy v. Carter, 246 F.3d 515, 519 (6th
Cir. 2001) (filing of delayed motion for appeal tolled the one-year statute of
limitations but did not reset it once motion was denied). Petitioner did not date his
federal habeas petition until December 13, 2020 – well after the one-year
limitations period had expired.
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Petitioner does not assert that the State created an impediment to the filing of
his habeas petition or that his habeas claims are based upon newly-enacted,
retroactively-applicable law or newly-discovered facts. His habeas petition is
therefore untimely under 28 U.S.C. § 2244(d).
The United States Supreme Court has ruled that the one-year statute of
limitations is not a jurisdictional bar and is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 645 (2010). 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)); see
also Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). A petitioner has the
burden of demonstrating that he is entitled to equitable tolling. Allen v. Yukins,
366 F.3d 396, 401 (6th Cir. 2004). “Typically, equitable tolling applies only when
a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.” Jurado v. Burt, 337 F.3d 638, 642
(6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 560 (6th Cir. 2000)).
Petitioner makes no such showing. He neither alleges nor establishes that an
extraordinary circumstance prevented him from timely filing his habeas petition.
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He also fails to show that he acted with sufficient diligence so as to justify
equitable tolling of the one-year period.
Moreover, the fact that Petitioner is untrained in the law, is or was
proceeding without a lawyer or other assistance for a period of time, and/or may
have been unaware of the statute of limitations or mistaken about its application
does not warrant equitable tolling. See Keeling v. Warden, Lebanon Corr. Inst.,
673 F.3d 452, 464 (6th Cir. 2012) (pro se status is not an extraordinary
circumstance); Allen, 366 F.3d at 403-04 (neither ignorance of the law nor reliance
on the unreasonable or incorrect advice of counsel justify tolling); Rodriguez v.
Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002) (“The law is replete with
instances which firmly establish that ignorance of the law, despite a litigant’s pro
se status, is no excuse for failure to follow established legal requirements.”).
Petitioner fails to demonstrate that he is entitled to equitable tolling under Holland.
The United States Supreme Court has held that a credible claim of actual
innocence may equitably toll the one-year statute of limitations. McQuiggin v.
Perkins, 569 U.S. 383, 396-97 (2013). 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 v. Delo, 513 U.S. 298, 327-28
(1995)); see also House v. Bell, 547 U.S. 518, 537-39 (2006). A valid claim of
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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 United States Court of Appeals for the
Sixth Circuit has stated that the actual innocence exception should “remain rare”
and “only be applied in the ‘extraordinary case.’” Souter v. Jones, 395 F.3d 577,
590 (6th Cir. 2005) (quoting Schlup, 513 U.S. at 321).
Petitioner makes no such showing. His assertion that his habeas claims have
merit does not establish his actual innocence. See, e.g., Craig v. White, 227 F.
App’x 480, 481 (6th Cir. 2007) (“Where a petitioner asserts actual innocence
solely based on his interpretation of the law, however, Souter's actual innocence
exception does not apply.”). Moreover, a self-serving, conclusory assertion of
innocence is insufficient to support an actual innocence claim. A “reasonable juror
[or fact-finder] surely could discount [a petitioner’s] own testimony in support of
his own cause.” McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir. 2007) (citing
Riggins v. Norris, 238 F.3d 954, 955 (8th Cir.2001); Cuppett v.
Duckworth, 8 F.3d 1132, 1139 (7th Cir.1993)). Petitioner fails to establish that he
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is entitled to equitable tolling of the one-year period. His habeas petition is
therefore untimely and must be dismissed.
IV.
CONCLUSION
For the foregoing reasons, the Court concludes that Petitioner did not file his
habeas petition within the one-year limitations period set forth in 28 U.S.C.
§ 2244(d), that he is not entitled to statutory and/or equitable tolling, and that the
statute of limitations precludes review of his claims. Accordingly, the Court
GRANTS Respondent’s motion to dismiss and DISMISSES WITH
PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal, a certificate of appealability must issue. 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may
only issue if a habeas petitioner makes “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 district court’s assessment of the constitutional
claim debatable or wrong. 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
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court was correct in its procedural ruling. Id. Jurists of reason would not find the
Court’s procedural ruling debatable. Accordingly, the Court DENIES a certificate
of appealability.
Lastly, the Court finds that an appeal from this decision cannot be taken in
good faith. See Fed. R. App. P. 24(a). Accordingly, the Court DENIES leave to
proceed in forma pauperis on appeal.
IT IS SO ORDERED.
s/Gershwin A. Drain___________________
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: October 27, 2021
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 27, 2021, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager
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