Goodman v. Hoffner

Filing 8

OPINION and ORDER Granting Respondent's 5 Motion to Dismiss the Habeas Petition, Denying a Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Charles Edward Goodman,
Petitioner,
v.

Case No. 17-cv-11884
Judith E. Levy
United States District Judge

Bonita Hoffner,
Mag. Judge David R. Grand
Respondent.
________________________________/
OPINION AND ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS THE HABEAS PETITION [5],
DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
This matter is presently before the Court on Petitioner Charles
Edward Goodman’s pro se habeas corpus petition under 28 U.S.C. §§ 2241
and 2254 (Dkt. 1) and respondent Bonita Hoffner’s motion to dismiss the
petition (Dkt. 5). For the reasons set forth below, Respondent’s motion is
granted, and the habeas petition is dismissed.
I. Background
Petitioner was charged in Wayne County, Michigan with firstdegree murder, Mich. Comp. Laws § 750.316, assault with intent to

commit murder, Mich. Comp. Laws § 750.83, and possession of a firearm
during the commission of a felony (“felony firearm”), Mich. Comp. Laws
§ 750.227b. The evidence at Petitioner’s jury trial in the former Detroit
Recorder’s Court established that
the killing took place following an argument at Johnny’s
Corner Bar in the City of Detroit. According to witnesses, the
victim’s sister was dancing in the bar when defendant
repeatedly touched her on the buttocks. An argument
followed, during which defendant asked the victim and the
victim’s brother if they wanted to “come outside.” Defendant
then left the bar with others while the victim and his brother
remained inside. Once outside the bar, defendant told the
bar’s owner that he would leave the bar before starting any
trouble. Another witness testified that defendant shouted
“load ‘em up” as he left the bar. Several minutes later, the
victim and his brother exited the bar. Defendant then shot
the victim in the chest with a sawed off shotgun.
People v. Goodman, No. 123587 (Mich. Ct. App. May 21, 1992).
On June 15, 1989, the jury found Petitioner guilty of first-degree
murder, assault with intent to commit murder, and felony firearm. On
June 30, 1989, the trial court sentenced Petitioner to mandatory life
imprisonment without the possibility of parole for the murder conviction,
a concurrent prison term of life imprisonment with the possibility of
parole for the assault conviction, and a consecutive term of two years in
prison for the felony-firearm conviction.
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On appeal from his convictions, Petitioner argued that: (1) there
was insufficient evidence of premeditation and deliberation to support
his conviction for first-degree murder; (2) the trial court deprived him of
a fair trial by failing to maintain an impartial attitude and by belittling
defense counsel; (3) the prosecutor testified when challenging a witness’s
testimony; and (4) the prosecutor argued facts not in evidence during
closing arguments. The Michigan Court of Appeals rejected each of
Petitioner’s claims and affirmed his convictions. See id. Petitioner raised
the same claims in the Michigan Supreme Court, which denied leave to
appeal on December 2, 1992. See People v. Goodman, 495 N.W.2d 385
(Mich. 1992).
On April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), which established a one-year
statute of limitations for prisoners challenging a state conviction. See 28
U.S.C. § 2244(d). More than eighteen years after, on January 15, 2015,
Petitioner filed a motion for relief from judgment in the state trial court.
He alleged that: (1) he was denied a fair trial by an impartial jury due to
the trial court’s failure to have the jury sworn on the record; (2) his
constitutional rights were not protected when the court failed to conduct
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a competency hearing; (3) his trial attorney was ineffective for not
investigating his mental state and for failing to ensure that a competency
hearing was held; (4) he was entitled to a reversal of his conviction
because testimonial evidence from eyewitnesses supported his claim of
actual innocence; and (5) his appellate attorney was ineffective for not
asserting the claims raised in his motion. The trial court’s successor
denied Petitioner’s motion under Michigan Court Rule 6.508(D) because
Petitioner raised, or could have raised, his claims on appeal. See People
v. Goodman, No. 88-011919-01 (Wayne Cty. Cir. Ct. Mar. 16, 2015).
In 2015, Petitioner also filed a motion to settle or to expand the
record. The state court treated the motion as a second or successive
motion for relief from judgment and then denied the motion. See People
v. Goodman, No. 88-011919-01 (Wayne Cty. Cir. Ct. Mar. 25, 2015).
Petitioner moved for reconsideration, but the trial court denied that
motion as well. See People v. Goodman, No. 88-011919-01 (Wayne Cty.
Cir. Ct. May 28, 2015).
Petitioner subsequently applied for leave to appeal in the Michigan
Court of Appeals. The Court of Appeals denied leave to appeal for failure
to establish entitlement to relief under Michigan Court Rule. 6.508(D).
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See People v. Goodman, No. 328106 (Mich. Ct. App. Aug. 20, 2015). On
September 27, 2016, the Michigan Supreme Court likewise denied leave
to appeal under Rule 6.508(D), see People v. Goodman, 885 N.W.2d 247
(Mich. 2016), and on November 30, 2016, the State Supreme Court denied
reconsideration. See People v. Goodman, 887 N.W.2d 185 (Mich. 2016).
Finally, on June 8, 2017, Petitioner signed his habeas corpus
petition, and on June 13, 2017, the Clerk of the Court filed the petition.
Petitioner argues as grounds for relief that: (1) the state trial court
deprived him of a fair trial by an impartial jury when the court failed to
have the jury sworn; (2) he was the victim of a biased judge, and both the
prosecutor and defense counsel failed to protect his constitutional rights
when the trial court failed to conduct a competency hearing; (3) defense
counsel was ineffective for not investigating his mental state and for
failing to ensure that a competency hearing was held; (4) testimonial
evidence from eyewitnesses support his claim of actual innocence and
require his release from custody; and (5) appellate counsel was ineffective
for not presenting the claims asserted in the habeas petition on direct
appeal.

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II. Analysis
A. The Statute of Limitations
AEDPA’s provisions govern this case because Petitioner filed his
habeas petition after the law was enacted. Lindh v. Murphy, 521 U.S.
320, 327 (1997); Muniz v. Smith, 647 F.3d 619, 622 (6th Cir. 2011).
Among other things, AEDPA established a one-year period of limitations
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 ordinarily
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

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(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)(A)-(D).
Petitioner has not argued in favor of a delayed start to the statute
of limitations under 28 U.S.C. § 2244(d)(1)(B)-(D), and his convictions
became final under § 2244(d)(1)(A) early in 1993, ninety days after the
Michigan Supreme Court denied leave to appeal on direct review. See
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (explaining that, for habeas
petitioners who do not pursue direct review all the way to the United
States Supreme Court, “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”). 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. But, because
Petitioner’s convictions became final before AEDPA was enacted, he was
entitled to a one-year grace period to file his habeas petition. Griffin v.
Rogers, 399 F.3d 626, 632 (6th Cir. 2005) (citing Isham v. Randle, 226
F.3d 691, 693 (6th Cir. 2000)).
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Petitioner did not pursue any state or federal remedies during the
one-year grace period that followed AEDPA’s enactment on April 24,
1996. Therefore, the statute of limitations ran uninterrupted for one
year, and it expired on April 24, 1997.
Eight years later, in 2015, Petitioner filed his motion for relief from
judgment and motion to settle or to expand the record in the state trial
court. The time during which a properly filed state post-conviction motion
is pending must not be counted toward the habeas period of limitations.
28 U.S.C. § 2244(d)(2); Holbrook, 833 F.3d at 615. By 2015, however, the
one-year limitations period had already expired. Petitioner’s postjudgment motions did not “‘revive’ the limitations period (i.e., restart the
clock at zero),” because § 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 v.
Khulmann, 991 F. Supp. 254, 259 (S.D. N.Y. 1998) (quoted with approval
in Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)). Consequently,
Petitioner’s post-conviction motions did not affect the one-year
limitations period, and he is not entitled to statutory tolling under 28
U.S.C. § 2244(d)(2).
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B. Equitable Tolling
AEDPA’s limitations period is subject to equitable tolling. Holland
v. Florida, 560 U.S. 631, 645, 649 (2010); Keeling v. Warden, Lebanon
Corr. Inst., 673 F.3d 452, 462 (6th Cir. 2012). Nevertheless, the Supreme
Court has made clear that “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, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)); see also Hall v. Warden, Lebanon Corr. Inst., 662
F.3d 745, 749-50 (6th Cir. 2011) (adopting Holland’s two-part test for
determining whether a habeas petitioner is entitled to equitable tolling).
“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)).
Petitioner waited almost nineteen years after AEDPA was enacted
to file his first motion for relief from judgment. Thus, he has not been
diligent in pursuing his rights. He also has not shown that some
extraordinary circumstance stood in his way of filing a timely habeas
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petition. The Court therefore declines to equitably toll the limitations
period.
Furthermore, although “a petitioner’s mental incompetence, which
prevents the timely filing of a habeas petition, is an extraordinary
circumstance that may equitably toll AEDPA’s one-year statute of
limitations,” Ata, 662 F.3d at 742, to obtain equitable tolling on the basis
of mental incompetence,
a petitioner must demonstrate that (1) he is mentally
incompetent and (2) his mental incompetence caused his
failure to comply with AEDPA’s statute of limitations. In
short, a blanket assertion of mental incompetence is
insufficient to toll the statute of limitations. Rather, a causal
link between the mental condition and untimely filing is
required.
Id.
Petitioner has not presented any evidence of his mental health
status during the limitations period, and he has not shown that his
alleged mental incompetence caused the untimely filing of his habeas
petition. His assertion of mental incompetence at trial is insufficient to
equitably toll the habeas limitations period. See id.; see also Watkins v.
Deangelo-Kipp, 854 F.3d 846, 851–52 (6th Cir. 2017).

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For these reasons, equitable tolling of the limitations period is not
appropriate in this case.
C. Actual Innocence
“[A]ctual innocence, if proved, serves as a gateway through which a
[habeas] petitioner may pass whether the impediment is a procedural bar
. . . [or] expiration of the statute of limitations.”1 McQuiggin v. Perkins,
569 U.S. 383, 386 (2013). The Supreme Court has cautioned, however,
“that tenable actual-innocence 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)). “[I]n making an assessment of
the kind Schlup envisioned, ‘the timing of the [petition]’ is a factor
bearing on the ‘reliability of th[e] evidence’ purporting to show actual
innocence.” Id. (quoting Schlup, 513 U.S. at 332).

Respondent argues that “[t]o the extent that Goodman is raising a freestanding
claim of actual innocence, such a claim would not be cognizable on federal habeas
review.” (Dkt. 5 at 15.) However, the Supreme Court has “not resolved whether a
prisoner may be entitled to habeas relief based on a freestanding claim of actual
innocence.” McQuiggin, 569 U.S. at 392 (citing Herrera v. Collins, 506 U.S. 390, 40405 (1993)). However, Petitioner does not assert a freestanding claim of actual
innocence based on newly discovered evidence, as Respondent suggests.

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Petitioner claims to be actually innocent, but he merely asserts that
he did not fit the description of the shooter provided by witnesses at trial
and that there is nothing in the record to suggest he had an intent to kill.
(See Dkt. 1 at 32.) Petitioner has not presented the Court with any new
evidence of actual innocence, and the Michigan Court of Appeals
determined on direct review that there was sufficient evidence to
establish that the killing was premeditated and deliberate. In reaching
this conclusion, the Court of Appeals noted that “[t]he interval between
the argument and the shooting clearly provided [Petitioner] with the
opportunity to take a second look at his actions before shooting the
victim.” Goodman, Mich. Ct. App. No. 123587, at 2. Petitioner, therefore,
has not made a credible showing of actual innocence in his petition.
In his reply brief, Petitioner attempts to support his claim of actual
innocence by asserting that he was incompetent to stand trial and that
the trial court failed to conduct a competency hearing after his mental
evaluation. The state trial court’s successor, however, noted on postconviction review that a psychiatric examination to determine both
criminal responsibility and diminished capacity was held and that the
results for both examinations came back within normal ranges. See
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People v. Goodman, No. 88-011919-01 (Wayne Cty. Cir. Ct. Mar. 16,
2015).
III. Conclusion
To summarize, Petitioner filed his habeas corpus petition years
after the one-year statute of limitations expired, and he is not entitled to
statutory or equitable tolling of the limitations period. In addition, his
claim of actual innocence is not sufficient to allow him to avoid the
statute-of-limitations and have his claims heard on the merits.
Accordingly, Respondent’s Motion for Dismissal of the Petition for Writ
of Habeas Corpus (Dkt. 5) is GRANTED, and the Petition for Writ of
Habeas Corpus (Dkt. 1) is DISMISSED WITH PREJUDICE.
Federal Rule of Appellate Procedure 22(b) 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 a federal district court to “issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.”
To obtain a COA, a prisoner must make a substantial showing of
the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), which is
satisfied only if reasonable jurists could debate whether, or agree that,
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the petition should have been resolved in a different manner, or that the
issues presented were adequate to deserve encouragement to proceed
further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When, as here,
“the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.”
Id. at 484.
For the reasons set forth above, reasonable jurists would not debate
whether this Court’s procedural ruling was correct or whether the
petition states a valid claim of the denial of a constitutional right.
Accordingly, a certificate of appealability is DENIED.
A petitioner may be granted in forma pauperis status on appeal if
the appeal can be taken in good faith, which “requires a showing that the
issues are arguable on the merits and are, therefore, not frivolous; it does
not require a showing of probable success.” Thomas v. Jackson, No. 0613105-BC, 2007 WL 1424603, at *1 (E.D. Mich. May 14, 2007).
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Here, Petitioner is unlikely to succeed on appeal, and an appeal of
this order may not be taken in good faith. Accordingly, Petitioner is
DENIED leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
Dated: August 21, 2018
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 August 21, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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