Dyson v. MacLaren

Filing 7

OPINION AND ORDER granting 5 Motion to Dismiss; and Denying Certificate of Appealability. 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 RESPONDENT’S MOTION
TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY
I. Introduction
Petitioner Everett Dyson, a Michigan state prisoner, filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. He challenges his conviction for second-degree
murder, Mich. Comp. Laws § 750.317. Respondent has filed a motion to dismiss, arguing
that the petition should be denied because it is untimely. The Court finds the petition for
a writ of habeas corpus is untimely and grants Respondent’s motion. The Court denies
Petitioner a certificate of appealability.
II. Procedural Background
Following a jury trial in Recorder’s Court for the City of Detroit, Petitioner was
convicted of second-degree murder in the shooting death of Kevin Dubose. On October
30, 1990, he was sentenced to a parolable life sentence.
Petitioner filed an appeal of right in the Michigan Court of Appeals, arguing that

the trial court erred in admitting the decedent’s statements as dying declarations, the jury
should not have been instructed on first-degree murder, and the sentence was
disproportionate. The Michigan Court of Appeals affirmed Petitioner’s conviction and
sentence. People v. Dyson, No. 135802 (Mich. Ct. App. Aug. 8, 1994). Petitioner moved
for rehearing, raising additional claims that his trial attorney was ineffective, the verdict
was against the great weight of the evidence, and his appellate attorney was ineffective.
The Michigan Court of Appeals denied rehearing. People v. Dyson, No. 135802 (Mich.
Ct. App. Dec. 7, 1994). The Michigan Supreme Court denied Petitioner’s application for
leave to appeal. People v. Dyson, 450 Mich. 875 (Mich. 1995).
On January 9, 1997, Petitioner filed a petition for writ of habeas corpus in this
Court. The Court dismissed the petition without prejudice for failure to exhaust state
court remedies. Dyson v. Elo, No. 2:97-cv-70107 (E.D. Mich. Nov. 26, 1997).
On March 6, 1998, Petitioner filed a motion for relief from judgment in the trial
court. The trial court denied the motion. 1/29/1999 Order, ECF No. 6-7, Pg. ID 214. In
February 1999, Petitioner filed a timely motion for reconsideration. The trial court did
not address the motion until July 25, 2014, when it issued an order denying the motion for
reconsideration. 7/25/2014 Order, ECF No. 2, Pg. ID 117. The Michigan Court of
Appeals denied Petitioner’s delayed application for leave to appeal. People v. Dyson, No.
325621 (Mich. Ct. App. June 22, 2015). On October 26, 2016, the Michigan Supreme
Court also denied leave to appeal. People v. Dyson, 500 Mich. 880 (Mich. 2016).
Petitioner filed the pending habeas petition on January 3, 2017.
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III. Discussion
Respondent argues that the petition is barred by the one-year statute of limitations.
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, applies to all habeas
petitions filed after its effective date, April 24, 1996, and imposes a one-year limitations
period for habeas petitions. See 28 U.S.C. § 2244(d)(1). A prisoner must file a federal
habeas corpus petition within one year of the “date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking such review . .
. or 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)(A) &
(D). The time during which a prisoner seeks state-court collateral review of a conviction
does not count toward the limitation period. 28 U.S.C. § 2244(d)(2); Ege v. Yukins, 485
F.3d 364, 371-72 (6th Cir. 2007). A properly filed application for state post-conviction
relief, while tolling the limitation period, does not reset the limitation period at zero.
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
In the pending case, Petitioner’s conviction became final before the AEDPA’s
effective date, April 24, 1996. Prisoners whose convictions became final before the
AEDPA’s effective date are allowed one year from the AEDPA’s effective date to file their
federal habeas petitions. See Jurado v. Burt, 337 F.3d 638, 640 (6th Cir. 2003). In this case,
the one-year limitations period commenced on April 24, 1996. Petitioner filed his first
habeas petition on January 9, 1997. Although the limitations period ordinarily is not tolled
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while a federal habeas corpus petition is pending, Griffin v. Rogers, 308 F.3d 647, 651 (6th
Cir. 2002) (citing Duncan v. Walker, 533 U.S. 167 (2001)), the Court will assume for
purposes of this case that the limitations period was tolled while Petitioner’s first habeas
corpus petition was under consideration in federal court. The limitations period, thus,
commenced on April 24, 1996, and continued to run until 260 days later, January 9, 1997,
when it was tolled by the filing of Petitioner’s first habeas petition. The limitations period,
of which 105 days remained, resumed running on November 26, 1997, when the Court
dismissed the habeas petition without prejudice. The limitations period continued to run,
uninterrupted, until it expired on March 12, 1998. Petitioner’s state court motion for relief
from judgment, filed March 26, 1998, did not toll or reset the expired limitations period.
Petitioner admits that his petition was not timely filed, but argues that his showing of
actual innocence excuses the untimeliness. The Supreme Court has held that a showing of
actual innocence overcomes AEDPA’s statute of limitations. McQuiggin v. Perkins, 133 S.
Ct. 1924, 1928 (2013). To determine whether a petitioner has satisfied the requirements for
establishing a cognizable claim of actual innocence to warrant equitable tolling, the court
applies “the same actual innocence standard developed in Schlup v. Delo, 513 U.S. 298, 115
S. Ct. 851 (1995), for reviewing a federal habeas applicant’s procedurally defaulted claim.”
McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007), citing Souter, 395 F.3d at 596. A
valid claim of 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
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presented at trial.” Schlup, 513 U.S. at 324. “The Schlup standard is demanding and permits
review only in the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006) (citation
omitted). A court presented with new evidence must consider it in light of “all the evidence,
old and new, incriminating and exculpatory, without regard to whether it would necessarily
be admitted under rules of admissibility that would govern at trial.” Id. (citation omitted).
“Based on this total record, the court must make ‘a probabilistic determination about what
reasonable, properly instructed jurors would do.’” Id. (quoting Schlup, 513 U.S. at 329).
This standard does not require absolute certainty about the petitioner’s guilt or innocence:
A petitioner’s burden at the gateway stage is to demonstrate that more likely
than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt – or, to remove the double negative, that
more likely than not any reasonable juror would have reasonable doubt.
Id. at 538.
Petitioner’s actual innocence claim relates to potential alibi witnesses and an alleged
failure to investigate. First, he argues 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. Petitioner provides no affidavit or any other offer
of proof demonstrating that the alibi witnesses were willing to testify or what their testimony
would have been. This speculative claim is insufficient to satisfy Schlup’s demanding
standard for “new reliable evidence” of actual innocence. Schlup, 513 U.S. at 329. Accord
Townsend v. Lafler, 99 Fed. App’x 606, 610 (6th Cir. 2004) (holding that habeas petitioner
failed to support theory of actual innocence in absence of an affidavit from the person who

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presumably would have provided information that someone else committed the crime).
Second, Petitioner argues that the evidence against him was weak and further
investigation of masks found near the crime, a piece of tape, and other evidence found at the
crime scene would have led to Petitioner’s acquittal. Petitioner offers no support for his
conclusory claim that this further investigation would have yielded evidence favorable to his
defense. Petitioner’s conclusory, vague allegations of actual innocence are insufficient to
equitably toll the limitations period.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the
Rules Governing Section 2254 Proceedings requires that a district court must “issue or deny
a certificate of appealability when it enters a final order adverse to the applicant.” If the
court issues a certificate, the court must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2).” Rule 11, Rules Governing Section 2255
Proceedings.
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). Courts must either
issue a certificate of appealability indicating which issues satisfy the required showing or
provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App.
P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive
a certificate of appealability, “a petitioner must show that reasonable jurists could debate
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whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and citations
omitted).
Having undertaken the requisite review, the Court concludes that jurists of reason
would not find debatable the Court’s conclusion that the petition was not timely filed.
V. Conclusion
The Court finds that Petitioner failed to file his habeas petition within the applicable
one-year limitations period. Accordingly, the Court GRANTS Respondent’s Motion to
Dismiss (ECF No. 5) and the petition for a writ of habeas corpus is DISMISSED.
The Court DENIES a certificate of appealability. If Petitioner chooses to appeal the
Court’s decision, he may proceed in forma pauperis on appeal because an appeal could be
taken in good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED.
s/John Corbett O’Meara
United States District Judge
Date: August 24, 2017

I hereby certify that a copy of the foregoing document was served upon the parties of
record on this date, August 24, 2017, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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