Anderson v. Michigan Department of Corrections Baraga Correctional Facility

Filing 11

MEMORANDUM OPINION and ORDER Granting Respondent's 7 Motion to Dismiss, Denying Petition for Writ of Habeas Corpus 1 , Denying as Moot 9 Motion to Defer Ruling, and Denying Certificate of Appealability and Permission to Appeal in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Deandre Anderson,
Case No. 16-cv-12675

Petitioner,

Judith E. Levy
United States District Judge

v.
Shane Place,

Mag. Judge Stephanie Dawkins
Davis

Respondent.
________________________________/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION
TO DISMISS [7], DENYING PETITION FOR WRIT OF HABEAS
CORPUS [1], DENYING AS MOOT MOTION TO DEFER RULING
[9], AND DENYING CERTIFICATE OF APPEALABILITY AND
PERMISSION TO APPEAL IN FORMA PAUPERIS
Deandre Anderson (“Petitioner”), a Michigan Department of
Corrections prisoner, filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

(Dkt. 1.)

Petitioner challenges his

convictions, following a bench trial in Alpena Circuit Court, for firstdegree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(c),
first-degree home invasion MICH. COMP. LAWS § 750.110a(2), and thirddegree criminal sexual conduct, MICH. COMP. LAWS § 750.520d(1)(b). As
a result of these convictions, Petitioner is serving concurrent sentences

of eighty-five months to fifty years and fifty months to twenty years.
(Dkt. 1 at 1.)
This matter is before the Court on respondent’s motion to dismiss.
(Dkt. 7.) Petitioner filed a motion to defer the ruling on respondent’s
motion until he filed a response. (Dkt. 9.) Petitioner thereafter filed a
response to the motion. (Dkt. 10.)
For the reasons set forth below, the Court grants respondent’s
motion to dismiss, and denies the petition for a writ of habeas corpus.
The Court also denies as moot Petitioner’s motion to defer, and denies a
certificate of appealability and permission to proceed on appeal in forma
pauperis.
I.

Background
Petitioner was convicted after a bench trial on June 23, 2009 of

home invasion and first- and third-degree criminal sexual conduct
against Nichole Barilik and Bobbi Hanna. (Dkt. 1 at 1.)
At trial, Barilik testified that she and Petitioner had a romantic
relationship, which she ended in mid-September 2008.

After this,

Petitioner continued to call her. On December 2, 2008, Barilik agreed
to talk with Petitioner at Bobbi Hanna’s house, where Petitioner was
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staying.

During the conversation, Petitioner slapped Barilik and

grabbed her by the neck.

Hanna heard the scuffle, and she told

Petitioner to stop. Barilik then left.
Barilik testified that later that night, she woke up at
approximately 5 a.m. to find Petitioner standing next to her bed,
wearing only his boxer shorts.

Petitioner touched her under her

blanket. She told him to leave, but Petitioner pulled back the covers,
climbed in her bed, held her wrists down, and sexually assaulted her.
Barilik went to the police station on December 8, 2008 to report
that Petitioner was harassing her, but she did not mention the sexual
assault. Barilik testified that she decided to pursue the rape charge
when she heard that Bobbi Hanna had accused Petitioner of raping her.
At trial, Bobbi Hanna also testified. She testified that she met
Petitioner on August 14, 2008, and became friends with him. He moved
in with her in November 2008. On December 8, 2008, Petitioner broke
off their romantic relationship, stating that he was in love with Barilik.
Two days later, on the night of December 10, 2008, Petitioner
came home around 1:30 a.m.

After Hanna went into her room and

changed into her nightgown, Petitioner came into her room and
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wrapped his arms around her.

Hanna testified that she shoved

Petitioner away and told him he needed to go to bed.

Instead,

Petitioner took his clothes off and sexually assaulted her.
After Petitioner left, Hanna called her friend Jessica Cohoon.
Cohoon testified at trial that Hanna was hysterical on the phone, and
told her that Petitioner raped her. Cohoon had a co-worker call the
police and go to Hanna’s house.

Petitioner was arrested the next

morning.
Petitioner, who represented himself at trial, maintained that any
sexual contact he had with the women was consensual, and that the two
women conspired to press charges against him after each woman found
out that Petitioner had slept with the other.
The trial court found Petitioner guilty of the offenses detailed
above.

(Dkt. 8-13.)

Following sentencing, Petitioner was appointed

appellate counsel who filed an appellate brief raising a single claim: the
trial court denied Petitioner his Sixth Amendment right to counsel
when it failed to ensure that his waiver was knowing, voluntary, and
intelligent by not informing him of the dangers of self-representation.

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On October 26, 2010, the Michigan Court of Appeals issued an
unpublished opinion affirming Petitioner’s convictions.

People v.

Anderson, No. 293574, 2010 WL 4226641 (Mich. Ct. App. Oct. 26, 2010).
Petitioner filed an application for leave to appeal with the Michigan
Supreme Court. On June 28, 2011, the Michigan Supreme Court denied
the application. People v. Anderson, 489 Mich. 971 (Mich. 2011) (table).
Over two years later, on October 17, 2013, Petitioner filed a
motion for relief from judgment in the trial court, challenging the
legality of his arrest and the weight of the evidence presented against
him. The trial court denied the motion in a brief order dated October
18, 2013. (Dkts. 8-15, 8-16.)
On January 27, 2014, Petitioner filed a delayed application for
leave to appeal with the Michigan Court of Appeals, which denied the
application. People v. Anderson, No. 319898 (Mich. Ct. App. June 27,
2014). Petitioner did not appeal this decision to the Michigan Supreme
Court. (See Dkt. 8-25.)
On September 23, 2015, Petitioner filed a second motion for relief
from judgment with the trial court. The motion again challenged the
legality of Petitioner’s arrest, accused the police of improperly focusing
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on just one suspect, asserted that the police obtained a statement from
him in violation of his constitutional rights, and challenged the
effectiveness of his appellate counsel. (Dkt. 8-17.)
On November 2, 2015, the trial court denied the motion, citing
MICH. CT. R. 6.502(G)(2), which generally prohibits defendants from
filing successive motions for relief from judgment.

(Dkt. 8-18.)

Petitioner filed a delayed application for leave to appeal in the Michigan
Court of Appeals, and on May 5, 2016, the Michigan Court of Appeals
dismissed the appeal pursuant to MICH. CT. R. 6.502(G)(2). People v.
Anderson, No. 331561 (Mich. Ct. App. May 5, 2016). Petitioner did not
appeal this decision to the Michigan Supreme Court. (Dkt. 8-25.)
On July 13, 2016, Petitioner filed a federal habeas petition, which
raises two claims: (1) Petitioner is actually innocent, and (2) Petitioner
was denied effective assistance of appellate counsel. (Dkt. 1.)
II.

Legal Standard
Respondent has filed a motion to dismiss. However, because the

motion and the record before the Court includes a number of documents
outside of the pleadings, the Court will treat the motion as a motion for
summary judgment.
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Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter
of law. Smith v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000). The court
may not grant summary judgment if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court
“views the evidence, all facts, and any inferences that may be drawn
from the facts in the light most favorable to the nonmoving party.” Pure
Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir.
2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.
2002)).
III. Analysis
Respondent argues that the petition is barred by the one-year
statute of limitations.

(Dkt. 7 at 10–15.)

Petitioner argues he is

entitled to equitable tolling because he is actually innocent and he
diligently pursued relief after recovering from various medical issues.
(Dkt. 10 at 3–4.)
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides a one-year period of limitation for a habeas petition
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filed by a state prisoner seeking habeas relief from a state court
judgment. 28 U.S.C. § 2244(d)(1). Under section 2244(d)(1)(A), the oneyear limitations period runs from “the date on which the judgment
became final by the conclusion of direct review or the expiration of the
time for seeking such review.”1 The limitation period is tolled while “a
properly filed application for State post-conviction or other collateral
review . . . is pending.” 28 U.S.C. § 2244(d)(2).
In this case, the Michigan Supreme Court denied leave to appeal
on June 28, 2011. Petitioner then had ninety (90) days to petition for a
writ of certiorari to the U.S. Supreme Court, which he did not do. Thus,
the statute of limitations began to run on September 26, 2011, and
expired one year later on September 27, 2012.
Petitioner filed his first post-conviction review motion with the
state trial court on October 17, 2013, over a year after the statute of
limitation had already expired. Because Petitioner’s post-conviction
motion was filed after the one-year limitations period expired, it did not
toll or reset the limitations period. McMurray v. Scutt, 136 F. App’x
815, 817 (6th Cir. 2005) (citing Vroman v. Brigano, 346 F.3d 598, 602

Section 2244(d) lists other events that trigger the statute of limitations, but none
of these are relevant to Petitioner’s case.
1

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(6th Cir. 2003)). The same is true for Petitioner’s second attempt to
obtain state post-conviction review.
The petition is therefore time-barred unless Petitioner is entitled
to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). A
petitioner is entitled to equitable tolling if he satisfies the burden of
proving “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely
filing.” Id. (internal quotation marks omitted); Robertson v. Simpson,
624 F.3d 781, 784 (6th Cir. 2010).
Petitioner argues that he is entitled to equitable tolling because he
is actually innocent and diligently pursued his rights. 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). McQuiggin v. Perkins, ___ U.S. ___, 133 S.
Ct. 1924, 1928 (2013).

To prevail under this standard, a habeas

petitioner must present the court with new, reliable evidence not
presented at trial to establish that he is actually innocent of the crime
charged. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005). The
Supreme Court has cautioned that “tenable actual-innocence gateway
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pleas are rare.”

Id.

“[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.” Id. (quoting Schlup, 513 U.S. at
329).
Petitioner

states

that

“the

only

new

evidence

is

the

petitioners/defendant’s testimony which wasn’t given during the trial
process;

recantation

of

testimony

by

alleged

victims

and/or

impeachment (polygraph exam was submitted).” (Dkt. 10 at 1.) He also
asserts “a reasonable trier, juror, or fact finder would not have
convicted me nor should you have confidence in the outcome of the trial
in light of the testimonial evidence found within the transcript of
record, which should raise more than enough reasonable doubt of guilt.”
(Id. at 4.) Petitioner then argues the witnesses should not have been
believed, and the trial court erred in accepting their testimony to
convict him. (Id. at 5–9.)
First, an attack on a witness’s credibility is generally insufficient
to establish actual innocence because a rational fact-finder may have
chosen to believe the witness’s testimony. See Sawyer v. Whitley, 505
10

U.S. 333, 349 (1992) (newly discovered impeachment evidence “will
seldom, if ever,” establish actual innocence); In Re Byrd, 269 F.3d 561,
577 (6th Cir. 2001) (“attacks on trial witness’s . . . reliability . . . do not
provide proof of ‘actual innocence’”).
Second, although Petitioner suggests that the victims recanted
their testimony, the record provides no support for this allegation.
Finally, Petitioner’s own assertions of innocence based on what he
would have testified to at trial are likewise insufficient to support his
actual innocence claim, especially when the testimony includes no facts
unknown to Petitioner at the time of trial. “A reasonable juror 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)

(collecting cases).
In sum, there is no new, reliable evidence, and Petitioner’s
arguments do not demonstrate that, in light of all the evidence, it is
more likely than not that no reasonable juror would have convicted him.
Petitioner is therefore not entitled to equitable tolling.
petition is untimely and must be dismissed.
grants respondent’s motion.
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His habeas

Accordingly, the Court

IV.

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 procedural grounds without addressing
the merits, a certificate of appealability should issue if it is shown that
jurists of reason would find it debatable (1) whether the petition states
a valid claim of the denial of a constitutional right, and (2) whether the
district court was correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484–85 (2000). Having undertaken the requisite review,
the court concludes that jurists of reason could not debate the Court’s
procedural ruling.

A certificate of appealability will therefore be

denied. Leave to appeal in forma pauperis is also denied because an
appeal of this order could not be taken in good faith. 18 U.S.C. §
1915(a)(3).
V.

Conclusion

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For the reasons set forth above, respondent’s motion to dismiss
(Dkt. 7) is GRANTED, and the petition for a writ of habeas corpus (Dkt.
1) is DENIED.
Because the Court did not rule on the petition for a writ of habeas
corpus before Petitioner filed a response to the motion to dismiss, the
motion to defer ruling (Dkt. 9) is DENIED as moot.
A certificate of appealability and permission for leave to appeal in
forma pauperis are DENIED.
IT IS SO ORDERED.
Dated: May 1, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on May 1, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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