Brockman v. McCullick

Filing 12

OPINION and ORDER Granting Respondent's 8 Motion to Dismiss, Dismissing the Habeas 1 Petition, and Denying Petitioner's 7 Motion to Appoint Counsel and to 11 Motion to Compel Discovery. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OMAR ODALE BROCKMAN,
Petitioner,
Civil Case No. 16-13441
Honorable Linda V. Parker

v.
MARK MCCULLICK,

Respondent.
_______________________________________/
OPINION AND ORDER GRANTING RESPONDENT’S MOTION
TO DISMISS [8], DISMISSING THE HABEAS PETITION [1], AND
DENYING PETITIONER’S MOTIONS TO APPOINT COUNSEL [7]
AND TO COMPEL DISCOVERY [11]
This matter came before the Court on Petitioner Omar Odale Brockman’s
pro se habeas corpus petition under 28 U.S.C. § 2254. Also pending before the
Court are Petitioner’s motions for appointment of counsel and to compel discovery
and Respondent Mark McCullick’s motion to dismiss the petition for failure to
comply with the statute of limitations. For the reasons given below, the Court is
granting Respondent’s motion, denying Petitioner’s motions, and dismissing the
petition with prejudice.
I. Background
Petitioner and his brother were tried jointly before a judge in Wayne County
Circuit Court. The evidence at trial established:

Both [Petitioner] and his brother Kendale Brockman went to the
victim’s house ostensibly to collect a debt. They entered the house.
They beat the victim for twenty to thirty minutes. During the course
of the beating they kept asking, “Where’s my money?” The[]
eyewitness testified that the victim may have been punched fifty
times. The witness then testified that both defendants kicked and
punched the victim, who did not fight back. The witness testified that
there was blood on the victim and the walls of the house. That
evidence matched the evidence presented from the autopsy that the
victim suffered a laceration to the back of his head and other
abrasions.
After the assault ended both defendants left the house. Omar removed
the victim from inside the house to the outside of the house. The
victim jumped in a car to flee from the scene. Five or six gunshots
were fired at the victim. There was no evidence of close range firing.
An eyewitness testified that Omar held a gun when he re-entered the
house after the shooting.
Op. and Order Den. Def.’s Mot. for Relief from J, People v. Brockman, No. 07004028-01, (Wayne Cty. Cir. Ct. Apr. 8, 2014) (unpublished) (ECF No. 9-9.) The
victim died of a gunshot wound to his left hip. (4/25/07 Trial Tr. at 70, ECF No. 93 at Pg ID 395.)
At the conclusion of the trial on April 30, 2007, the trial judge found
Petitioner guilty of second-degree murder, Mich. Comp. Laws § 750.317, assault
with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84,
felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and felony
firearm, Mich. Comp. Laws § 750.227b. On May 25, 2007, the trial court
sentenced Petitioner as a third felony offender to two years in prison for the felony2

firearm conviction, followed by concurrent prison terms of twenty-five to seventy
years for the murder conviction, twelve to twenty years for the assault conviction,
and five to ten years for the felon-in-possession conviction.
Petitioner appealed his convictions through appointed counsel, arguing: (1)
there was insufficient evidence at trial to support his murder and firearm
convictions; (2) he received ineffective assistance of trial counsel; (3) his Fifth
Amendment right not to be placed in double jeopardy was violated when he was
convicted of second-degree murder and assault with intent to commit great bodily
harm; and (4) his sentence for second-degree murder was based on inaccurate
information. The Michigan Court of Appeals affirmed Petitioner’s convictions.
People v. Brockman, No. 278616, 2008 WL 4291668 (Mich. Ct. App. Sept. 16,
2008) (unpublished). On February 24, 2009, the Michigan Supreme Court denied
Petitioner’s pro se application for leave to appeal. People v. Brockman, 760
N.W.2d 478 (Mich. 2009) (table).
Over four and a half years later, on December 3, 2013, Petitioner filed a
motion for relief from judgment in the trial court. He raised thirteen claims,
including several challenges to the state trial and appellate courts’ jurisdiction, the
admission of certain evidence, and his trial and appellate attorneys’ representation
of him. The trial court denied Petitioner’s motion, and the Michigan Court of

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Appeals denied leave to appeal because Petitioner failed to establish entitlement to
relief under Michigan Court Rule 6.508(D). See People v. Brockman, No. 322657
(Mich. Ct. App. Sept. 4, 2014). On June 30, 2015, the Michigan Supreme Court
denied Petitioner leave to appeal for the same reason. People v. Brockman, 865
N.W.2d 27 (Mich. 2015) (table).
On September 15, 2016, Petitioner signed and dated his federal habeas
corpus petition, and on September 20, 2016, the Clerk of the Court filed the
petition. Petitioner subsequently moved for appointment of counsel and to compel
discovery. In his petition, Petitioner raises the following as grounds for relief: (1)
the state district court and circuit court lacked jurisdiction, (2) the improper
admission of expert testimony deprived him of a fair trial and due process of law,
(3) trial counsel was ineffective for failing to object to the admission of expert
testimony, and (4) appellate counsel deprived him of effective assistance on direct
appeal. (See ECF No. 1 at Pg ID 10.)
Respondent filed a motion to dismiss on March 27, 2017, arguing that
Petitioner’s claims are time-barred. Petitioner replies that his petition is timely
because he did not become aware of the factual predicate for his claims until he
acquired a copy of his criminal file in April of 2013.

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II. Analysis
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
established a one-year limitations period for state prisoners to file their federal
habeas corpus petitions. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C.
§ 2244(d)(1)); Holbrook v. Curtin, 833 F.3d 612, 615 (6th Cir. 2016), cert. denied
sub nom. Woods v. Holbrook, 137 S. Ct. 1436 (2017). 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). “AEDPA also contains a tolling provision, which
specifies that ‘[t]he time during which a properly filed application for State post-

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conviction 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.’ ” Holbrook, 833 F.3d at 615 (quoting 28 U.S.C. § 2244(d)(2)).
B. Delayed Starts
Petitioner is not relying on a new constitutional rule. 28 U.S.C.
§ 2244(d)(1)(C). However, he argues in favor of a delayed start to the limitations
period under § 2244(d)(1)(D). He claims that he did not discover the factual
predicate for his claims until he acquired a copy of his criminal file in April 2013.
“Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within
one year of the time in which new evidence ‘could have been discovered through
the exercise of due diligence.’ ” McQuiggin v. Perkins, 133 S. Ct. 1924, 1935
(2013) (quoting 28 U.S.C. § 2244(d)(1)(D)). “[T]he time commences when the
factual predicate ‘could have been discovered through the exercise of due
diligence’, not when it was actually discovered by a given prisoner” and “not when
the prisoner recognizes their legal significance.” Owens v. Boyd, 235 F.3d 356,
359 (7th Cir. 2000) (quoting 28 U.S.C. § 2244(d)(1)(D)); see also Townsend v.
Lafler, 99 F. App’x 606, 608 (6th Cir. 2004) (quoting Owens).
All of Petitioner’s claims were discoverable with reasonable diligence before
the statute of limitations began to run. Whether the state district court and circuit

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court had jurisdiction of Petitioner’s criminal case could have been discovered
before trial. Trial counsel’s alleged error should have been obvious at trial, and
appellate counsel’s acts or omissions should have been apparent after the appeal of
right came to an end. Thus, § 2244(d)(1)(D) is not a valid basis for delaying the
start of the statute of limitations.
Petitioner also implies that he is entitled to a delayed start to the limitations
period because state officials hindered his ability to acquire his state court file,
including transcripts and documents. Under § 2244(d)(1)(B), the limitations
period can begin to run on the date when “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.” 28
U.S.C. § 2244(d)(1)(B). The issues here are whether state officials deprived
Petitioner of his constitutional rights when they denied his requests for a copy of
his court file and whether the delay in acquiring the file prevented Petitioner from
filing a timely habeas petition.
Petitioner was represented by counsel in his appeal of right, and an exhibit to
Petitioner’s response (labeled a “reply”) to Respondent’s motion to dismiss
indicates that appellate counsel received a free copy of transcripts and other court
documents. (See ECF No. 10 at Pg ID 1069.) Petitioner was not entitled to his

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own personal copy of the transcripts. Hooks v. Roberts, 480 F.2d 1196, 1198 (5th
Cir. 1973); Gay v. Watkins, 579 F. Supp. 1019, 1022 (E.D. Pa. 1984). Further, the
constitutional right to due process “does not establish any right to collaterally
attack a final judgment of conviction.” United States v. MacCollom, 426 U.S. 317,
323 (1976). To the extent Petitioner wished to mount a “fishing expedition” for
errors, he was not entitled to transcripts so that he could search for new postconviction claims. Corrigan v. Thoms, 55 F. App’x 754, 756 (6th Cir. 2003)
(citing Bentley v. United States, 431 F.2d 250, 254 (6th Cir. 1970)).
The Court concludes that the state officials’ denial of Petitioner’s requests
for a copy of his court file did not amount to unconstitutional state action.1 Their
conduct also did not create an impediment to filing a timely habeas petition, as
Petitioner could have filed a timely habeas petition and then sought a stay of the
federal proceedings while he attempted to acquire his criminal file and pursue state
remedies. Notably, as discussed infra, even after obtaining his criminal file and
exhausting his state court post-conviction remedies, Petitioner waited over a year
to file his federal habeas corpus petition. Thus, § 2244(d)(1)(B) is not a valid basis
for delaying the start of the statute of limitations.
Petitioner indicates that he eventually was able to obtain the records he sought by
encouraging his family to get involved and request the records from the trial court.
(ECF No. 10 at Pg ID 1027-28.) The trial court provided Petitioner’s family
access to the court file. (Id.) Nothing suggests that state action prevented
Petitioner from obtaining the records earlier than 2013 through this route.

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C. Section 2244(d)(1)(A)
Because Petitioner is not entitled to a delayed start to the statute of
limitations, his convictions became final at “the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The
Supreme Court has instructed:
For petitioners who pursue direct review all the way to [the Supreme]
Court, the judgment becomes final at the “conclusion of direct
review”—when [the Supreme] Court affirms a conviction on the
merits or denies a petition for certiorari. For all other petitioners, the
judgment becomes final at the “expiration of the time for seeking such
review”—when the time for pursuing direct review in [the Supreme]
Court, or in state court, expires.
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). A petition for writ of certiorari to
review a judgment entered by a state court of last resort must be filed in the United
States Supreme Court within ninety days after entry of the judgment. Sup. Ct. R.
13.1.
Petitioner did not apply for a writ of certiorari in the Supreme Court, and his
deadline for doing so according to the above rule expired on May 25, 2009. At
that point, Petitioner’s convictions became final. The statute of limitations began
to run on the following day, and it expired one year later on May 25, 2010.
Although the limitations period is tolled under § 2244(d)(2) for the time
during which a properly filed post-conviction motion is pending in state court,

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Petitioner filed his motion for relief from judgment on December 3, 2013. This
was over three and a half years after the statute of limitations expired. The motion
did not revive the limitations period or restart the clock. Vroman v. Brigano, 346
F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F. Supp. 254, 259
(S.D. N.Y. 1998)). In other words, the tolling provision of § 2244(d)(2) “can only
serve to pause a clock that has not yet fully run. Once the limitations period is
expired, collateral petitions can no longer serve to avoid a statute of limitations.”
Rashid, 991 F. Supp. at 259.
Petitioner appears to believe that the limitations period did not begin to run
until June 30, 2015, when the state courts concluded their review of his postconviction motion. (See ECF No. 1 at Pg ID 10.) However, the statute of
limitations began to run at the expiration of the time for seeking direct review, not
the conclusion of state collateral review. 28 U.S.C. § 2244(d)(1)(A); Gonzalez,
565 U.S. at 150. Even if Petitioner were correct in arguing that the statute of
limitations began to run when the Michigan Supreme Court denied leave to appeal
on state collateral review, he waited more than a year to file his habeas petition
after the Michigan Supreme Court’s decision on June 30, 2015. The limitations
period was not tolled during the time Petitioner could have appealed the state

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court’s denial of his post-conviction motion to the United States Supreme Court.
Lawrence v. Florida, 549 U.S. 327, 329, 332 (2007).
D. Equitable Tolling
“AEDPA’s limitations period is subject to equitable tolling.” Keeling v.
Warden, Lebanon Corr. Inst., 673 F.3d 452, 462 (6th Cir. 2012). Nevertheless, “a
‘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.” Holland v. Florida, 560 U.S. 631, 649
(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Equitable
tolling is granted sparingly and is evaluated on a case-by-case basis, with the
petitioner retaining the ‘ultimate burden of persuading the court that he or she is
entitled to equitable tolling.’ ” Keeling, 673 F.3d at 462 (quoting Ata v. Scutt, 662
F.3d 736, 741 (6th Cir. 2011)).
Here, even if the Court were to assume that Petitioner was diligent in
pursuing his rights, he has not shown that some extraordinary circumstance
prevented him from filing a timely habeas petition. As noted above, he could have
filed a habeas petition at the conclusion of direct review and sought to have his
habeas petition held in abeyance while he attempted to acquire a copy of his
criminal file and pursued additional state remedies.

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Furthermore, even if the Court equitably tolled the limitations period until
the conclusion of Petitioner’s post-conviction proceedings in state court, Petitioner
then waited more than a year to file his habeas petition. Thus, equitable tolling
would not benefit Petitioner even under a generous reading of the law.
E. Actual Innocence
Actual innocence, if proved, serves as a gateway through which habeas
petitioners may pass when the impediment to consideration of the merits of their
constitutional claims is expiration of the statute of limitations. Perkins, 133 S. Ct.
at 1928. The Supreme Court has cautioned, however, “that tenable actualinnocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of . . . new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Petitioner does not claim to be innocent. Therefore, he is not entitled to pass
through the “actual innocence” gateway and have his claims heard on the merits.
“AEDPA’s time limitations apply to the typical case in which no allegation of
actual innocence is made.” Id. at 1933.

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III. Conclusion
Petitioner filed his habeas petition more than a year after his convictions
became final, and he is not entitled to a delayed start of the limitations period. He
also is not entitled to equitable tolling of the limitations period, and he has not
made a tenable claim of actual-innocence that entitles him to have his claims heard
on the merits.
Accordingly,
IT IS ORDERED that Respondent’s motion to dismiss the habeas petition
(ECF No. 8) is GRANTED.
IT IS FURTHER ORDERED that the habeas petition (ECF No. 1) is
DISMISSED WITH PREJUDICE as untimely.
IT IS FURTHER ORDERED that Petitioner’s motions for appointment of
counsel (ECF No. 7), and his motion to compel discovery (ECF No. 11) are
DENIED AS MOOT.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED because reasonable jurists would not find it debatable whether the
Court’s procedural ruling is correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS FURTHER ORDERED that Petitioner may not proceed in forma
pauperis on appeal if he appeals this decision, because an appeal could not be
taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 15, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 15, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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