Dyson v. MacLaren

Filing 13

OPINION AND ORDER granting 9 Motion for Reconsideration; Reopening Case, and Requiring Supplemental Briefing. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EVERETT DYSON,
Case Number: 5:17-CV-10006

Petitioner,

HON. JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE

v.
DUNCAN MACLAREN,
Respondent.
/

OPINION AND ORDER GRANTING PETITIONER’S
MOTION FOR RECONSIDERATION (ECF # 9), REOPENING CASE,
REQUIRING SUPPLEMENTAL BRIEFS, AND DIRECTING
RESPONDENT TO FILE THE RELEVANT STATE COURT RECORD
Michigan state prisoner Everett Dyson, through counsel, filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254. He challenged his conviction for seconddegree murder, Mich. Comp. Laws § 750.317. Respondent filed a motion to dismiss,
arguing that the petition should be denied because it is untimely. The Court granted the
motion. Now before the Court is Petitioner’s motion for reconsideration.
To prevail on a motion for reconsideration, the movant must demonstrate a
palpable error by which the court and the parties have been mislead, and that correction of
the error will result in a different disposition of the case. See E.D. Mich. LR 7.1(h)(3). In
granting Respondent’s motion to dismiss, the Court rejected Petitioner’s claim that his
late filing should be excused based upon his actual innocence. Petitioner’s actual
innocence claim related to potential alibi witnesses and an alleged failure to investigate.

Petitioner argued that defense counsel failed to call alibi witnesses despite filing a notice
of alibi and arguing in opening statement that Petitioner was somewhere else at the time
of the murder. The Court found this claim unpersuasive because Petitioner failed to
provide an affidavit or any other offer of proof demonstrating that the alibi witnesses
were willing to testify or what their testimony would have been. The Court found this
claim too speculative to satisfy the demanding standard for “new reliable evidence” of
actual innocence. Schlup v. Delo, 513 U.S. 298, 329 (1995).
In his motion for reconsideration, Petitioner states that he mistakenly omitted
affidavits from three alibi witnesses whose testimony would have supported his claim of
actual innocence. These affidavits, all executed in 1994, support Petitioner’s claim that
he had an alibi defense. However, the Court is unable at this time assess “what
reasonably, properly instructed jurors would do” based upon “all of the evidence, old and
new, incriminating and exculpatory” because the State did not file trial transcripts or
appellate briefs in support of its motion to dismiss. House, 547 U.S. at 538. Without the
state court record, the Court cannot evaluate the “total record.” Id. Thus, the Court will
reopen this proceeding and order supplemental briefs and the filing of the state court
record.
Accordingly, IT IS ORDERED that Petitioner’s Motion for Reconsideration (ECF
No. 9) is GRANTED and the matter is REOPENED.
IT IS FURTHER ORDERED that by March 30, 2018, Respondent must file: a
supplemental brief addressing the actual innocence claim in light of the witness affidavits;
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and the relevant state court record, including state court trial transcripts. Petitioner shall
have 45 days from the filing of Respondent’s supplemental brief to file a response to the
supplemental brief.

s/John Corbett O’Meara
United States District Judge
Date: January 31, 2018

I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, January 31, 2018, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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