Wilson #466855 v. Curtin
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE WILSON, # 466855,
)
)
Petitioner,
)
)
v.
)
)
CINDI CURTIN,
)
)
Respondent.
)
____________________________________)
Case No. 1:10-cv-1032
Honorable Robert Holmes Bell
OPINION
This is a habeas corpus proceeding brought pro se by a state prisoner pursuant to
28 U.S.C. § 2254. Petitioner’s criminal convictions stem from his role in the killing of
Roland Johnson. On February 23, 2007, a Kalamazoo County Circuit Court jury found
petitioner guilty of first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a),
and possession of a firearm during the commission of a felony, Mich. Comp. Laws
§ 750.227b. On April 9, 2007, petitioner was sentenced to life without parole on his firstdegree murder conviction and a consecutive two years’ imprisonment on his felony
firearm conviction. (ECF No. 15-13, PageID.1596).
After unsuccessful attempts to overturn his convictions in state court, petitioner
filed this habeas corpus petition. Petitioner seeks federal habeas corpus relief on the
following grounds:
I.
Petitioner was denied his due process right to a fair trial and his
right to confront the witnesses against him by the prosecution’s
surprise admission of a report from the firearms expert that was
not disclosed in discovery. Petitioner was denied the effective
assistance of counsel when his attorney failed to object or request
a mistrial, continuance or other relief.
II.
Petitioner received ineffective assistance of counsel and the trial
court’s finding to the contrary was clearly erroneous and the court
abused its discretion in denying petitioner’s motion for a new trial.
III.
Trial counsel and appellate counsel were constitutionally
ineffective in failing to object to inadmissible and highly
prejudicial testimony that petitioner had previously been locked up
and involved in selling drugs.
IV.
Prosecutorial misconduct in introducing perjured testimony of a
key prosecution witness that contradicted the medical examiner’s
findings concerning the distance between the gun barrel and the
deceased; alternatively, defense counsel was ineffective in failing
to impeach the witness with inconsistent preliminary examination
testimony concerning her observation of the shooting; furthermore,
appellate counsel was ineffective in failing to raise this issue.
V.
Prosecutorial misconduct in knowingly presenting false testimony
of a key witness deprived petitioner of a fair trial.
VI.
Petitioner was denied effective assistance of counsel when his trial
attorney failed to adequately cross-examine Medical Pathologist
Brian Hunter to show that there was no soot or powder tattooing
of the skin around the gunshot wound.
VII.
Petitioner was denied effective assistance of appellate counsel
when his appellate attorney (1) “failed to diligently find Ms.
Simpson to confirm the newly discovered evidence claim;” and (2)
failed to raise on direct appeal the ground that petitioner raised in
his 6.500 motion.
(Amended Petition, ECF No. 11, PageID.121-35).1 Respondent argues that Grounds
I and II should be denied for lack of merit and that Grounds III-VII are barred by the
statute of limitations. (ECF No. 16).
The Court has ignored petitioner’s claims that he is entitled to federal habeas
corpus relief based on purported violations of Michigan’s constitution. Federal habeas
corpus relief is available “only on the ground that [petitioner] is in custody in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
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After review of the state-court record, this Court concludes petitioner has not
established grounds for federal habeas corpus relief. Petitioner has not shown that the
decision of the Michigan Court of Appeals rejecting Grounds I and II was “contrary to,
or involved an unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States,” or that it was “based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). Grounds III through VII are barred by the
statute of limitations. The petition will be denied.
Standard of Review
The Court’s review of this petition is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly
deferential standard for evaluating state-court rulings which demands the state court
decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)
(citations omitted). “AEDPA requires heightened respect for state court factual and
legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006).
“State-court factual findings [] are presumed correct; the petitioner has the burden of
rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.
Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).
If a state court adjudicated the claim, deferential AEDPA standards must be
applied.
28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011);
Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328,
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341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court
proceedings’ is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA
prevents federal habeas “retrials” and ensures that state court convictions are given
effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It
prohibits “using federal habeas corpus review as a vehicle to second-guess the
reasonable decisions of state courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012)
(per curiam).
The AEDPA standard is difficult to meet “because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects the that
habeas corpus is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03
(citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376
(2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf
of a person who is incarcerated pursuant to a state conviction cannot be granted with
respect to any claim that was adjudicated on the merits in state court unless the
adjudication “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based upon
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S. Ct. 456, 460
(2015); Davis v. Ayala, 135 S. Ct. at 2198; White v. Woodall, 134 S. Ct. 1697, 1702
(2014).
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The only definitive source of clearly established federal law for purposes of
§ 2254(d)(1) is the holdings—not dicta—of Supreme Court decisions. White v. Woodall,
134 S. Ct. at 1702; see Woods v. Donald, 135 S. Ct. at 1377 (“Because none of our cases
confront ‘the specific question presented by this case,’ the state court’s decision could
not be ‘contrary to’ any holding from this Court.”). “[W]here the precise contours of a
right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” Id. (quotations and internal citations omitted).
An unreasonable application of the Supreme Court’s holding must be
“‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White
v. Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).
Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
White v. Woodall, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103).
“[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined
by the Supreme Court,’ ” and “[i]t therefore cannot form the basis for habeas relief
under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v.
Matthews, 132 S. Ct. at 2155); see Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per
curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute
‘clearly established Federal law, as determined by the Supreme Court.’”).
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“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court
accord the state trial court substantial deference. If reasonable minds reviewing the
record might disagree about the finding in question, on habeas review that does not
suffice to supersede the trial court’s determination. Brumfield v. Cain, 135 S. Ct. 2269,
2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013).
Proposed Findings of Fact
A.
District Court Proceedings
Petitioner was charged with open murder2 in the March 27, 2006, killing of
Roland Johnson and possession of a firearm during the commission of a felony.
Petitioner received a preliminary examination in the 8th District Court in Kalamazoo.
(ECF No. 15-2). On May 3, 2006, Judge Quinn Benson bound over petitioner for trial
in Kalamazoo County Circuit Court on all charges. (Id. at PageID.398-99).
B.
Circuit Court Proceedings
On Monday, October 9, 2006, Judge Philip Schaefer held a hearing on
petitioner’s attorney’s motions for expert witness fees and to adjourn trial. (ECF No.
15-4). During the course of this hearing, the prosecutor advised defense counsel and
Under Michigan law, the charge of open murder allows a defendant to be
convicted of first-degree or second-degree murder or manslaughter, depending on the
proofs. MICH. COMP. LAWS § 767.71; see People v. Johnson, 398 N.W.2d 219, 222-23
(Mich. 1986); see also Tran v. Berghuis, No. 1:06-cv-428, 2014 WL 4063832, at *7 n.4
(W.D. Mich. Aug. 18, 2014); Williams v. Jones, 231 F. Supp. 2d 586, 589 (E.D. Mich.
2002).
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the court that the resident of the home where Roland Johnson had been shot and killed
had recently found what appeared to be a bullet fragment. It had been discovered
during the process of cleaning the corner of the basement where the victim’s body had
been found. The bullet fragment was turned over to the police and the prosecutor
learned of its existence on the Thursday or Friday before the hearing. The prosecutor
indicated that the item was in the process of being packaged for delivery to a
laboratory for testing. It was apparent that it would be necessary to determine
whether this round came from the weapon fired by petitioner or whether it had been
fired by the victim. (Id. at 4-5, PageID.413-14). The court granted petitioner’s
attorney’s motions to adjourn the trial and for expert witness fees. (Id. at 6-7,
PageID.415-16).
Petitioner’s trial began on February 13, 2007, and it concluded on February 23,
2007, with the jury’s verdict finding him guilty of first-degree premeditated murder and
possession of a firearm during the commission of a felony. (Trial Transcripts (TT I-
TT VII, ECF No. 15-6 through 15-12).
Petitioner’s group of associates included Maurice Furcron (aka Julio), Travanti
Black (aka Big Ned or Ned), and Michael Johnson (aka “Mike-Mike). Petitioner used
the aliases “Rero” and “Ron Ron.” (TT II, 353-57, ECF No. 15-7; TT III, 463-67, 487,
545-47, 564-66, 601-03, ECF No. 15-8; TT IV, 657-61, 734-40, ECF No. 15-9).
Petitioner was Maurice Furcron’s “flunky.” (TT II, 360, 368; TT IV, 740). Petitioner
would “do just about anything [Furcron] told him to do.” (TT II, 360).
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Christina Davis had been Maurice Furcron’s girlfriend. (TT II, 353, 373). She
broke up with Furcron a short time before Roland Johnson was shot and killed. (TT II,
354). Maurice Furcron had injured his leg and was using crutches. Approximately two
weeks before Johnson was killed, Furcron found Johnson’s car at Tawana Simpson’s
residence at 1516 Humphrey Street. Furcron was upset about Christina Davis’s
relationship with Roland Johnson. Maurice Furcron used his crutch to smash out the
windows in Roland Johnson’s car. (TT III, 463, 471-72, 479).
A few days later, on March 27, 2006, Roland Johnson returned to 1516
Humphrey Street. Christina Davis, Alysa Davis, Shami Ballard, and Donald (aka
“Dub”) Cobb were also present. This group was in the basement smoking marijuana
and drinking alcohol. (TT II, 375-77, 389-90; TT III, 427-30, 512-13, 531-32, 548).
Alysa Davis was talking to someone on the telephone and she revealed Roland
Johnson’s location. (TT II, 392; TT III, 425). Less than an hour later, petitioner, his
aforementioned group of associates, and others were at 1516 Humphrey Street
demanding entry. (TT II, 395-96; TT III, 513).
Candie Briley testified that, on the night in question, she drove her van to 1516
Humphrey Street.
Briley had six passengers.
The four male passengers were
petitioner, Maurice Furcron, Travanti Black, and Michael Johnson. The two female
passengers were Tionna Brown, and Crystal Ware. (TT III, 563-69, 605-06; TT IV,
651-62). Maurice Furcron was on crutches and he initially stayed by the van with Ms.
Briley while the others went up to the house and began banging on the doors and
windows and yelling. (TT III, 572-73). Neighbors heard a lot of banging and cursing
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and loud noises coming from 1516 Humphrey. They heard someone demanding that
the door be opened and saw a number of people running around the house and banging
on the doors and windows. A short time thereafter, they heard gunshots that sounded
like firecrackers. (TT II, 293-99, 304-08).
Christina Davis testified that Maurice Furcron had threatened to kill her if he
caught her with another guy. (TT II, 396). She recognized Travanti Black’s voice as
he was demanding that the occupants open the door. She recognized petitioner’s voice.
She later heard Maurice Furcron’s voice after his group gained entry into the
residence. Christina Davis also heard Candie Briley and Tionna Brown. (TT II, 397,
402).
When the people inside the home failed to open the door, the pounding became
more violent. (TT II, 397; TT III, 513-15). Prints matching Michael Johnson’s shoes
were found on the front door. (TT V, 874-75, ECF No. 15-10). Christina Davis heard
people moving around the outside of the house. (TT II, 398-400). She heard the sound
of someone breaking in through an upstairs window. (TT II, 401; TT III, 473-74).
Donald Cobb testified that he went upstairs when he heard the banging. (TT III, 51617). He became frightened when he heard someone coming in through the bathroom
window. (TT III, 517-22). Michael Johnson testified that, with assistance from
Travanti Black and petitioner, he was able to get inside the house through the
bathroom window. (TT IV, 668-71). Donald Cobb opened the front door and ran away.
(TT IV, 672-73, 747). Cobb testified that a group of men rushed in past him as he was
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headed in the opposite direction. (TT III, 517-22). Cobb was well away from the house
when the shooting started. (TT III, 523).
Candie Briley saw someone open the door. Petitioner, Travanti Black, and
Michael Johnson rushed inside. Briley accompanied Furcron from the van into the
house. (TT III, 573). Briley testified that she was on the stairs a few steps behind
Furcron when she heard gunshots.
Michael Johnson testified that petitioner was the first of his group to go through
the front door and that petitioner immediately went downstairs.
(TT IV, 673).
Travanti Black and Tionna Brown were next. Michael Johnson testified that he came
next, and that he was near the middle of the stairs, with Maurice Furcron and Crystal
Ware further up on the stairs behind him, when the shooting started. (TT IV, 674-77).
Crystal Ware testified that petitioner grabbed Roland Johnson by the collar.
Roland Johnson appeared “scared like he knowed [sic] he was going to die.” (TT IV,
749). Petitioner pulled a gun from his waistline. Roland Johnson fought for his life
and tried to keep petitioner from pointing the gun at him. Roland Johnson lost this
struggle and he was shot, and then fell. Petitioner retained the gun in his hands.
(TT IV, 752-57, 767). Crystal Ware testified that she heard three or four shots. (TT IV,
763).
Michael Johnson heard around six gunshots. (TT IV, 677-78). Johnson testified
that he saw petitioner coming up the stairs and wiping off the gun. Petitioner handed
the gun to Johnson. Johnson looked inside the revolver and saw that all the bullets
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had been fired. Petitioner had the gun with him when he got back into the van. (TT
IV, 681-85).
Christina Davis and Shami Ballard had hidden themselves in a laundry area
under the basement stairs. (TT II, 403, 407; TT III, 432, 439, 533-35). Christina Davis
heard the voices of Travanti Black and Michael Johnson as they were coming
downstairs to confront the victim. (TT II, 404, 436-37). She heard Maurice Furcron
as he was coming down the stairs. Furcron was demanding that Roland Johnson tell
him where Christina Davis was located. (TT II, 405, 434). Christina Davis testified
that she heard petitioner’s voice, followed by what may have been a push or scuffle.
She then heard gunshots ring out. She thought that there had been a total of six shots.
(TT II, 406-07).
Shami Ballard heard four of five gunshots. She testified that the shots sounded
like they came from inside the basement, not from the stairs. (TT III, 535-36).
Christina Davis heard Travanti Black exclaim that the group should leave,
which was followed by “a whole bunch of running up the stairs.” (TT II, 407).
According to Christina Davis and Shami Ballard, Alysa Davis had been out in the open
with the intruders, rather than hiding with them under the basement stairs. (TT II,
407-08; TT III, 444). After petitioner’s group fled, Alysa Davis had a smirk on her face
and was acting like nothing had happened. (TT II, 409). She did not appear to be
upset that Roland Johnson had been shot. (TT III, 444).
Candie Briley testified that petitioner had a revolver in his hand as he came
back up the stairs. (TT III, 577-78). Petitioner came up the stairs “normal like nothing
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had happened.” (TT III, 578). Michael Johnson took the gun from petitioner and
opened it. Johnson commented that petitioner had emptied the whole gun. Michael
Johnson appeared to be amused that petitioner had fired enough shots to empty his
gun. (TT III, 578-80).
According to Candie Briley, the group lingered in the house for “a good five
minutes or so after the shooting.” (TT III, 578). Crystal Ware commented how stupid
the guys were for doing what they did and she urged the group to leave as soon as
possible. (TT III, 581). It was another three to five minutes before everyone was back
inside the van. Petitioner, Travanti Black, and Michael Johnson were the last three
to leave the building and get back into the van. (TT III, 582-83). Candie Briley was
crying and petitioner was “hollering at her telling her to go drive.” (TT IV, 754). As
Briley was driving away, Travanti Black indicated that he had checked the victim’s
pocket and took the marijuana that he found. (TT III, 581-84).
Roland Johnson’s labored breathing was audible. He was on his left side and he
was bleeding from his head wound. (TT II, 408, 417; TT III, 440-41). His head was
pushed up in the “corner of the bottom of the wall.” (TT II, 419; TT III, 441).
Neighbors alerted police that a black van with an “AAA” licence plate number
had fled the scene of the shooting. (TT II, 312, 315, 335-36). Within a few minutes of
receiving a call from dispatch, police came into contact with a van matching that
description and license plate. (TT II, 315; TT V, 816). Police conducted a felony stop.
(TT II, 316). The occupants of the van did not comply with police commands. (TT II,
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317, 337). Candie Briley testified that petitioner put a gun to her head and indicated
that if she did not drive away, he was going to shoot her. (TT III, 585-86).
Ms. Briley was not sure that petitioner’s gun was empty. She drove away and
led police on a high speed chase. (TT II, 316-17, 338-40, 596). During the chase,
petitioner asked if there was anything in the van that he could use to get the
gunpowder residue off his hands. Tionna Brown indicated that she had a douche in her
bag.
Petitioner used it to clean his hands and then wiped his hands dry on a
pillowcase. Petitioner also used the pillowcase to wipe his fingerprints off the gun
before he threw the gun out the window. (TT III, 589-90; TT IV, 687-89, 757-62).
Petitioner’s attempt to remove the gunpowder residue proved ineffectual. His hands
and clothing tested positive for gunpowder residue. (TT V, 913-27).
Police were eventually able to end the pursuit by disabling the van’s tires with
spike strips. (TT II, 317, 338-41). Police recovered the .32 caliber revolver and the
pillowcase that had been thrown out the window of the van during the chase. (TT II,
319-26; TT III, 626; TT V, 830-36, 883). A trace of the gun’s serial number revealed
that it had been stolen. (TT II, 330, 334; TT V, 836). There were four spent casings
in the revolver and one empty chamber. (TT V, 883-84).
Michael Johnson testified that, during the police chase, he saw Travanti Black
dumping out the marijuana that had been taken from the victim onto the van’s floor.
(TT IV, 692). Police found the loose marijuana and the douche bottle on the van’s floor.
Roland Johnson’s cell phone was inside the van. Back at the Humphrey Street
address, police found that one of Roland Johnson’s shoes had been thrown into a
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bedroom and the other was out in the yard. Testimony established that shoes were
a common place for hiding controlled substances. (TT V, 797-98, 818-21, 857, 937-44,
948; TT VI, 959, ECF No. 15-11).
Police took the seven occupants of the van into custody. The four males were
petitioner, Maurice Furcron, Travanti Black, and Michael Johnson. The three females
were Candie Briley, Tionna Brown, and Crystal Ware. (TT II, 341-45; TT IV, 700).
Petitioner lied about his identity. (TT V, 776).
When police arrived at 1516 Humphrey Street, two unidentified women directed
them to the wounded man in the basement. (TT V, 902). Christina Davis was
hysterical and she would not leave Roland Johnson’s side. Roland Johnson had been
shot in the head. He was still breathing, but otherwise unresponsive. (TT V, 903-04).
Roland Johnson was transported to the hospital where he was pronounced dead shortly
after his arrival. (TT IV, 791; TT V, 904).
The state of the victim’s clothing had been noted at the hospital. A pocket of the
camouflage jacket that he was wearing was turned completely inside out. His shoes
were missing. (TT V, 948).
A forensic pathologist testified that Roland Johnson died of multiple gunshot
wounds. (TT IV, 718). It was stipulated that the cause of Roland Johnson’s death was
the gunshot wound to his head. (TT II, 256). Bullet fragments were recovered from
beneath the scalp on the right side and from his brain on the left side. (TT IV, 710,
715-16). Roland Johnson also had a gunshot wound to his right leg, with a graze
wound to the back of his left leg. (TT IV, 720).
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Police found a Colt .25 caliber semiautomatic handgun and a single .25 caliber
casing in the basement at 1516 Humphrey Street. (TT V, 801-02, 878-79). This gun
that had a six round clip. There were four rounds in the magazine and one round in
the chamber. (TT V, 882).
Tawana Simpson testified that when she cut away the bloodstained carpet from
the corner of her basement at 1516 Humphrey Street where Roland Johnson had been
shot, she found what appeared to be a bullet and she gave it to the police. (TT III, 47476; TT VI, 954-55). Earlier police had recovered two spent rounds in addition to round
recovered from Roland Johnson’s head. (TT IV, 710, 715-16; TT V, 791-75; TT VI, 956).
Jeff Crump testified as an expert in the field of firearms and ballistics. (TT VI, 963).
He testified that all of the bullets recovered could have been fired from the .32 caliber
revolver. The bullets could not have been fired from the .25 caliber handgun. (TT VI,
967-79).
Petitioner elected to testify. (TT VI, 1017-52). Petitioner conceded that he had
been at 1516 Humphrey Street on the night in question. (TT VI, 1019, 1023). He
admitted that he had a gun. He admitted that he had four rounds in the gun and that
he shot all of them towards Roland Johnson. (TT VI, 1026, 1036, 1044). Petitioner
denied shooting Roland Johnson because Maurice Furcron told him to do it. (TT VI,
1021). Petitioner claimed that he was not looking at Johnson when he fired the shots.
He claimed that he was “turning up the stairs” as he was shooting. (TT VI, 1029,
1044). Petitioner claimed that he had acted in self-defense or in defense of Maurice
Furcron. (TT VI, 1031).
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Petitioner denied taking anything from Roland Johnson.
(TT VI, 1031).
Petitioner denied putting a gun to Candie Briley’s head and demanding that she drive
away from the police. (TT VI, 1028). He denied cleaning his hands with the douche
and drying his hands on the pillowcase. (TT VI, 1046). He testified that Michael
Johnson had the revolver and that Johnson threw it out the van’s window. (TT VI,
1047). Petitioner testified that when he was apprehended he gave a false name
because there was an outstanding warrant for his arrest. (TT VI, 1031, 1051).
After the close of proofs, the attorneys delivered their closing arguments. Among
other things, the prosecutor argued that the physical evidence indicated that the victim
had been trying to escape. The bullet Ms. Simpson found in the corner would not have
ended up in that location and condition if it had been fired from the stairway as
plaintiff claimed. He argued that petitioner’s claims that he had acted in self-defense
or in defense of Maurice Furcron made no sense.
The evidence indicated that
petitioner wounded his victim, then capped him off in the corner with two rounds, one
missed and the other went into Roland Johnson’s brain and killed him. Petitioner then
took the victim’s marijuana, shoes, and cell phone. The prosecutor argued that
petitioner’s actions of forcing the police chase and attempting to destroy and dispose
of evidence were not actions compatible with petitioner’s claims of self-defense or
defense of others. (TT VII, 1064-97; 1108-1120, ECF No. 15-12). Petitioner’s attorney
attempted to convince the jury that the prosecution had not carried its burden of proof
and that it should credit petitioner’s testimony that he had acted in self defense or in
defense of Maurice Furcron. (TT VII, 1097-1108).
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Judge Schaefer delivered the jury instructions. The jury deliberated for about
three hours and then returned its verdict finding petitioner guilty of first-degree
premeditated murder, felony murder, and carrying a firearm during the commission
of a felony. (TT VII, 1149-50).
On April 9, 2007, Judge Schaefer conducted a sentencing hearing. (Sentencing
Transcript (ST), ECF No. 15-13). The sentences petitioner faced were mandatory
sentences. He had nothing to say when offered an opportunity for allocution. Judge
Schaefer described petitioner’s first-degree murder of Roland Johnson as “a coldblooded, pigheaded assassination.” (ST, 4). Further, the judge observed: “I don’t think
I’ve ever seen a more callous killing in my 21 years on the bench – And I’ve seen a lot
of bad ones.” (ST, 4). Judge Schaefer sentenced petitioner to the mandatory sentences
of life without parole on his first-degree murder conviction and a consecutive two years’
imprisonment on his felony firearm conviction.
(ST, 5; Judgment of Sentence
Commitment to Corrections Department, ECF No. 15-15, PageID.1688).
B.
Subsequent Proceedings
Petitioner pursued an appeal in the Michigan Court of Appeals. Petitioner’s
appellate counsel raised the issues now found in Ground I of petitioner’s habeas corpus
petition.
(Defendant-Appellant’s Brief at 2, Statement of Questions Presented,
ECF No. 15-15, PageID.1696). Appellate counsel also filed a motion for remand to the
trial court for an evidentiary hearing regarding a perceived discovery violation and
possible ineffective assistance of counsel. (ECF No. 15-15, PageID.1715-16). On
January 2, 2008, the Michigan Court of Appeals granted the motion and remanded the
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matter to allow petitioner to file a motion for a new trial and for an evidentiary hearing
regarding petitioner’s claims of a discovery violation and ineffective assistance of
counsel. (ECF No. 15-15, PageID.1721).
The trial court conducted an evidentiary hearing where it received testimony
from petitioner’s trial counsel and the prosecuting attorney. The judge also heard oral
argument on petitioner’s motion for a new trial. (ECF No. 15-14). On November 24,
2008, the trial court judge entered his opinion and order denying petitioner’s motion
for a new trial. He rejected petitioner’s claims of ineffective assistance of counsel and
a Brady violation. (ECF No. 15-15, PageID.1752-64). The judge noted that physical
evidence as well as testimony placed petitioner in the basement at the time of the
shooting, which contradicted petitioner’s testimony. Petitioner could not show that the
evidence forming the foundation of his meritless claim of a Brady violation was
favorable to him. He could only assert that “he would have changed his story when he
confronted this ‘new’ evidence.” (Id. at PageID.1762).
Petitioner’s appellate counsel filed a supplemental brief on appeal, which raised
the issues now found in Ground II of the amended habeas corpus petition. (ECF No.
15-15, PageID.1737). On June 9, 2009, the Michigan Court of Appeals entered its
decision rejecting petitioner’s arguments and affirming his convictions. (ECF No. 1515, PageID.1680-86; People v. Wilson, No. 277572, 2009 WL 1607466 (Mich. Ct. App.
June 9, 2009)). On October 26, 2009, the Michigan Supreme Court denied petitioner’s
application for leave to appeal. (ECF No. 15-16, PageID.1803).
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On October 18, 2010, petitioner filed his petition seeking federal habeas corpus
relief.3 (Petition, ECF No. 1). Petitioner sought habeas corpus relief on the two
grounds that the Michigan Court of Appeals had rejected on direct appeal. (Id. at ¶ 14,
PageID.6-7; see also ECF No. 1-3, PageID.28).
On March 16, 2011, petitioner filed his motion asking the Court to hold his
habeas petition in abeyance pending exhaustion of otherwise unexhausted claims in
state court.
(ECF No. 6, 7, 7-1; see also Petitioner’s Brief at 1, ECF No. 17,
PageID.3617). On April 1, 2011, the Court entered an order granting petitioner’s
motion for stay and abeyance. (ECF No. 8). This case was administratively closed
until such time as petitioner filed a motion to amend his petition in accordance with
the procedures set forth in the Court’s order. (Id.).
On April 28, 2011, petitioner filed a motion for relief from judgment in the trial
court.
(ECF No. 15-20).
On September 15, 2011, petitioner’s attorney filed a
supplement to the motion for relief from judgment. (ECF No. 15-21, PageID.3461).
On November 8, 2011, the trial court judge entered his opinion and order
denying petitioner’s motion for relief from judgment. (ECF No. 15-22). He rejected
petitioner’s claims of prosecutorial misconduct.
He found that the challenged
testimony from Christina Davis had not prejudiced the jury against petitioner’s
The October 18, 2010, filing date gives petitioner the benefit of the “mailbox
rule.” Under the “mailbox rule,” a prisoner’s habeas petition is deemed filed when he
posts it in the prison mail system. See Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir.
2002). Here, despite the absence of evidence from petitioner regarding the date he
gave his petition to prison officials for mailing, the Court is giving petitioner the
benefit of the earliest possible filing date. It is assumed for present purposes that
petitioner filed his petition on the date he signed it. (See ECF No. 1, PageID.14).
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testimony. (Id. at PageID.3518). The testimony of Christina Davis, revealing that
petitioner was previously “locked up” and did a drug run for his friend, Maurice
Furcron, “elicited only the manner of the friendship between [petitioner] and Mr.
Furcron. The Prosecutor did not offer the testimony for character reference and it was
not in violation of MRE 404(b) or MRE 609. The jury was free to determine issues of
witness credibility.” (Id. at PageID.3519). The judge determined that petitioner’s
“theory that the jury likely rejected his testimony because he had previously been
arrested and previously sold illegal drugs [did] not outweigh the evidence in this case,
on which [petitioner] was found guilty.” (Id.).
The judge found that the remaining grounds raised by petitioner (other than
ineffective assistance of appellate counsel) were barred by procedural defaults. Those
grounds were either “decided against [petitioner] previously, or allege[d] grounds for
relief which could have been raised on appeal.” (Id. at PageID.3521). Petitioner had
“not shown good cause for failing to raise such grounds, nor actual prejudice.” (Id.).
The trial court judge applied the Strickland4 standards and rejected petitioner’s
claims of ineffective assistance of appellate counsel for lack of merit. (ECF No. 15-22
at PageID.3520-21). He found that there was not a likelihood that the jury would have
discounted Crystal Ware’s testimony if the jury had learned she previously testified at
the preliminary examination that she “guessed” the gun shot the decedent in the head.
(Id.). The judge held that petitioner had “not shown that counsel’s performance was
deficient or that the deficient performance prejudiced the defense. [Petitioner] ha[d]
Strickland v. Washington, 466 U.S. 668 (1984).
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4
not established that his trial or appellate counsel’s performance was below the
objective standard of reasonableness under prevailing professional norms or that the
outcome of the proceedings would have been different.” (Id.).
Petitioner sought review of the trial court’s decision denying his motion for relief
from judgment in Michigan’s appellate courts. On September 24, 2013, the Michigan
Court of Appeals denied petitioner’s delayed application for leave to appeal for “failure
to meet his burden of establishing entitlement to relief under MCR 6.508(D).” (ECF
No. 15-18, PageID.2580). On February 28, 2014, the Michigan Supreme Court denied
petitioner’s application for leave to appeal on the same basis. (ECF No. 15-19,
PageID.3330).
On March 21, 2014, petitioner filed his motion to amend his petition. (ECF No.
10). On March 24, 2014, the Court entered its order reopening the case. The same
order granted petitioner’s motion for leave to amend and his proposed amended
petition was deemed filed instanter.”5 (ECF No. 13).
Discussion
I.
Alleged Brady Violation
In Ground I, petitioner argues that he was denied his due process right to a fair
trial and his right to confront the witnesses against him by the admission of a report
from firearms expert Jeffrey Crump that petitioner claims had not been disclosed in
Instanter means “[i]nstantly; at once.” BLACK’S LAW DICTIONARY, 917 (10th ed.
2009). The Court’s order established that the amended petition was filed on March 24,
2014. The Court made no determination regarding whether the newly exhausted
grounds related back to the original petition for statute of limitations purposes.
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discovery. Petitioner also claims ineffective assistance of counsel when his attorney
failed to object or request a mistrial, continuance or other relief when she learned of
Crump’s report. (Amended Petition, ECF No. 11, PageID.121-23; Petitioner’s Brief
at 2, 14-19, ECF No. 11-1,PageID.145, 158-63; Petitioner’s Reply Brief at 6-8, ECF
No. 17, PageID.3622-24).
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that
“suppression by the prosecution of evidence favorable to an accused ... violates due
process where the evidence is material, either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The Court has
held that “[t]here are three components of a true Brady violation: [t]he evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
281-82 (1999); see also Kyles v. Whitley, 514 U.S. 419, 433 (1995). Prejudice and
materiality are established by showing that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Strickler, 527 U.S. at 281 (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)); see also Cone v. Bell, 556 U.S. 449, 469-70 (2009). A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Bagley,
473 U.S. at 682.
The Michigan Court of Appeals carefully applied the Brady standards to
petitioner’s due process claim and the Strickland standards to petitioner’s related
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claim of ineffective assistance of counsel, and it held that there had been no violation
of petitioner’s constitutional rights. See People v. Wilson, No. 277572, 2009 WL
1607466, at *2-4 (Mich. Ct. App. June 9, 2009) (citations omitted). The Court finds
that petitioner has not shown that the decision of the Michigan Court of Appeals “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” or “an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
II.
Ineffective Assistance of Counsel
In Ground II, petitioner claims ineffective assistance of trial counsel and error
in denying petitioner’s motion for a new trial. These issues were initially raised by
petitioner’s appellate counsel in the motion for a new trial and later on direct appeal.
(Amended Petition, PageID.124-25; Supplemental Brief at 6, 11-20, ECF 11-1,
PageID.175, 180-89; Petitioner’s Reply Brief at 4-6, ECF No. 17, PageID.3620-22).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established a two-prong test by which to evaluate claims of ineffective assistance of
counsel. Petitioner must prove: (1) that counsel’s performance fell below an objective
standard of reasonableness; and (2) that counsel’s deficient performance prejudiced
petitioner resulting in an unreliable or fundamentally unfair outcome. Id. at 687-88.
A court considering a claim of ineffective assistance must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Petitioner bears the burden of overcoming the
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presumption that the challenged action might be considered sound trial strategy. Id.
(citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
On the prejudice prong,
“[petitioner] must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Because Michigan’s courts decided petitioner’s claims of ineffective assistance
of counsel on the merits, their decisions must be afforded deference under AEDPA. See
Burt v. Titlow, 134 S. Ct. at 15-18; Harrington v. Richter, 562 U.S. at 98-101. To
receive habeas relief, petitioner must demonstrate that the state courts’ decisions were
contrary to, or represented an unreasonable application of, Strickland v. Washington.
See Bell v. Cone, 535 U.S. at 698-99.
Hence, it is not enough to convince the federal habeas court that, in its
independent judgment, the state-court decisions applied Strickland incorrectly.
Rather, petitioner must show that the state courts “applied Strickland to the facts of
his case in an objectively unreasonable manner.” Bell, 535 U.S. at 699; see Campbell
v. Bradshaw, 674 F.3d 578, 586-87 (6th Cir. 2012). This creates a “high burden” for
petitioner. See Carter v. Mitchell, 443 F.3d 517, 525 (6th Cir. 2006); see also Hodges
v. Colson, 727 F.3d 517, 534 (6th Cir. 2013). “[B]ecause the Strickland standard is a
general standard, a state court has even more latitude to reasonably determine that
a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). Supreme Court decisions describe this as “the doubly deferential judicial
review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”
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Knowles, 556 U.S. at 123; see Woods v. Donald, 135 S. Ct. at 1376; Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003) (per curiam).
The question before the habeas court, then, is “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Premo v. Moore,
562 U.S. at 123; see McGowan v. Burt, 788 F.3d 510, 515 (6th Cir. 2015). Petitioner
must show that the state courts’ ruling on the claim being presented in federal court
was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Woods v. Donald, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. at 103).
The Michigan Court of Appeals applied the federal standard established in
Strickland and rejected petitioner’s claims of ineffective assistance of trial counsel. See
People v. Wilson, 2009 WL 1607466, at *4-6 (citations omitted). The Court finds that
petitioner has not shown that the decision of the Michigan Court of Appeals was
“contrary to, or an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” under the “doubly deferential”
standard of review. 28 U.S.C. § 2254(d)(1).
III.
Statute of Limitations
Respondent argues that Grounds III through VII of the amended petition are
barred by the statute of limitations. (Answer at 35-51, ECF No. 16, PageID.3557-74).
Petitioner’s application is subject to the one-year statute of limitations provided in 28
U.S.C. § 2244(d)(1). See Hill v. Mitchell, Nos. 13-3412, 3492, __ F.3d __, 2016 WL
7010004, at *4 (6th Cir. Dec. 1, 2016) (The Court “may not review claims at all unless
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the petitioner satisfies AEDPA’s procedural requirements -- including the requirement
that a petitioner bring his claims within AEDPA’s one-year statute of limitations
period.”).
Under § 2244(d)(1)(A), the one-year 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.”
Petitioner appealed his conviction to the
Michigan Court of Appeals and requested leave to appeal to Michigan’s highest court
On October 26, 2009, the Michigan Supreme Court denied petitioner’s application for
leave to appeal. Petitioner did not petition for certiorari to the United States Supreme
Court. Nonetheless, the one-year statute of limitations period did not begin to run
until after the ninety-day period in which petitioner could have sought review in the
United States Supreme Court. See Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012);
see also Giles v. Beckstrom, 826 F.3d 321, 323 (6th Cir. 2016). The ninety-day period
expired on January 27, 2010. Accordingly, absent tolling, petitioner had one year,
until January 27, 2011, in which to file a habeas petition raising all the grounds on
which he claims entitlement to federal habeas corpus relief.
The one-year statute of limitations applies to each claim in a habeas application,
as opposed to the application as a whole. See Hill v. Mitchell, 2016 WL 7010004, at *67; see also Capozzi v. United States, 768 F.3d 32, 33 (5th Cir. 2014); Mardesich v. Cate,
668 F.3d 1164, 1170 (9th Cir. 2012). On October 18, 2010, petitioner filed his petition
seeking federal habeas corpus relief. Petitioner raised the two grounds that had been
-26-
rejected by the Michigan Court of Appeals on direct appeal. It is undisputed that
Grounds I and II are not barred by the statute of limitations.
A.
Section 2244(d)(2)
Petitioner argues that he is entitled to the benefit of statutory tolling under 28
U.S.C. § 2244(d)(2). (Petitioner’s Reply Brief at 4, ECF No. 17, PageID.3620). He is
incorrect.
Section 2244(d)(2) provides: “The time during which a properly filed application
for State post-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.” Petitioner’s filing of his federal habeas corpus petition did not
toll the statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181 (2001) (“We
hold that an application for federal habeas corpus review is not an ‘application for
State post-conviction or other collateral review’ within the meaning of 28 U.S.C.
§ 2244(d)(2).”).
Section 2244(d)(2) did not toll the limitation period during the
pendency of the federal habeas petition.
The running of the statute of limitations only is tolled when “a properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending.”6 28 U.S.C. § 2244(d)(2); see also Duncan v.
Walker, 533 U.S. at 181-82 (limiting the tolling provision to only State, and not
“By tolling the limitation period for the pursuit of state remedies and not during
the pendency of applications for federal review, § 2244(d)(2) provides a powerful
incentive for litigants to exhaust all available state remedies before proceeding in the
lower federal courts.” Duncan, 533 U.S. at 180.
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Federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining “properly filed”).
This statutory provision is of no benefit to petitioner because petitioner did not file his
motion for post-conviction relief until long after the statute of limitations had already
run on Ground III through VII.
The one-year limitations period expired on January 27, 2011. Grounds V
through VII were asserted in the application for post-conviction relief that petitioner
filed on April 28, 2011, three months after the statute of limitations had run.
Petitioner’s attorney raised the issues corresponding to Grounds III and IV on
September 15, 2011, in a supplement to the motion for relief from judgment. This was
roughly eight months after the statute of limitations had run.
The tolling provision of 28 U.S.C. § 2244(d)(2) does not “revive” the limitations
period (i.e., restart the clock at zero). “[I]t can only serve to pause a clock that has not
yet fully run.” Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (citation omitted);
see Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004); McClendon v. Sherman, 329 F.3d
490, 493 (6th Cir. 2003); Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001); see also
Sharp v. Brewer, No. 2:16-cv-99, 2016 WL 4498288, at *3 (W.D. Mich. Aug. 3, 2016)
(“Once the limitations period is expired, collateral petitions can no longer serve to
avoid a statute of limitations.”).
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B.
Equitable Tolling
The statute of limitations is subject to equitable tolling under appropriate
circumstances.7 Holland v. Florida, 560 U.S. 631, 645 (2010). Petitioner bears the
burden of showing that he is entitled to equitable tolling. See Robertson v. Simpson,
624 F.3d 781, 784 (6th Cir. 2010). A habeas petitioner seeking equitable tolling of the
statute of limitations has the burden of establishing two elements: (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; Hall v.
Warden, Lebanon Corr. Inst., 662 F.3d at 750.
Petitioner argues that he should be entitled to equitable tolling because “he
complied with this Court’s order” regarding stay and abeyance. (Petitioner’s Reply
Brief at 1-4, ECF No. 17, PageID.3617-20). Stay and abeyance under the Court’s order
gave petitioner a chance to exhaust his available state remedies. It did not allow
petitioner to avoid the statute of limitations defense if respondent elected to assert that
defense in her answer to the amended petition.8
The statute of limitations expired on January 27, 2011. Grounds III through VII
were time-barred long before petitioner filed his motion for stay and abeyance (ECF
The Sixth Circuit repeatedly has cautioned that equitable tolling should be
applied “sparingly” by this Court. See Hall v. Warden, Lebanon Corr. Inst., 662 F.3d
745, 749 (6th Cir. 2011).
7
“A statute of limitations defense . . . is not “jurisdictional,” hence courts are
under no obligation to raise the time bar sua sponte.” Day v. McDonough, 547 U.S.
198, 205 (2006). A federal habeas court has discretion whether to raise the one-year
statute of limitations sua sponte. Id. at 202, 209; see Wood v. Milyard, 132 S. Ct. 1826,
1833 (2012).
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No. 6) if respondent asserted that statute of limitations defense. Nothing in the
Court’s order (ECF No. 8) provides a basis for equitable tolling.
Petitioner provides no explanation why he waited so long to file a motion for
relief from judgment in the trial court raising Grounds III through VII. (see ECF No.
6, 7, 17). Petitioner has not carried his burden of establishing that he has been
pursuing his rights diligently and that some extraordinary circumstance stood in his
way and prevented timely filing. Holland, 560 U.S. at 649. The Court finds that
petitioner is not entitled to equitable tolling.
C.
Relation Back
Petitioner cannot claim the benefit of the October 18, 2010, filing date for any
claims in the amended petition that do not relate back to the original petition. See FED.
R. CIV. P. 15(c)(1); Mayle v. Felix, 545 U.S. 644, 664 (2005) (defining “relation back” in
the habeas context). The Court finds that Grounds III through VIII do not relate back
to the grounds raised in the initial petition.
Rule 15(c) provides that an amendment relates back to the date of the original
pleading when “the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” FED. R. CIV. P. 15(c)(1)(B). With respect to the amendment of a section 2254
petition, the United States Supreme Court has rejected the argument that the
“conduct, transaction, or occurrence” should be defined to include any pretrial, trial,
or post-trial error that arises from the conviction under attack in the original petition.
Mayle v. Felix, 545 U.S. at 661. Relation back is permitted “only when the claims
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added by amendment arise from the same core facts as the timely filed claims, and not
when the new claims depend upon events separate in ‘both time and type’ from the
originally raised episodes.” 545 U.S. at 657.
After noting that AEDPA provides a one-year statute of limitations for filing
habeas petitions, the Mayle Court observed: “If claims asserted after the one-year
period could be revived simply because they relate to the same trial, conviction or
sentence as a timely filed claim, AEDPA’s limitation period would have slim
significance.” Id. at 662. Thus, “[a]n amended habeas petition, we hold, does not relate
back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground
for relief supported by facts that differ in both time and type from those the original
pleading set forth.” Id. at 650; see Hill v. Mitchell, 2016 WL 7010004, at *6.
Grounds III through VII do not relate back to the original petition under this
rule. Relation back is permitted only when the claims added by amendment arise from
the same “core facts” as the timely filed claims, but not when the new claims depend
on events separate both in time and in type from the originally raised episodes. Mayle,
545 U.S. at 657; Hill v. Mitchell, 2016 WL 7010004, at *6.
Ground I is the is the purported Brady violation and the related ineffective
assistance of counsel claim that the Michigan Court of Appeals rejected. Ground II
repeats the ineffective assistance of counsel claims raised in connection with
petitioner’s motion for a new trial that the Michigan Court of Appeals likewise rejected.
Ground III is a new claim of ineffective assistance of trial counsel based on an
assertion that counsel failed to object to testimony indicating that petitioner had
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previously been locked up and involved in selling drugs and a related claim of
ineffective assistance of appellate counsel for failure to raise the issue on direct appeal.
Grounds IV and V are new claims of prosecutorial misconduct based on purported
instances of eliciting perjured testimony. Ground VI is a new claim of ineffective
assistance of counsel based on perceived inadequacies in counsel’s cross-examination
of Pathologist Brian Hunter.9 Ground VII is a new claim of ineffective assistance of
appellate counsel. Grounds III through VII of petitioner’s first amended petition do not
arise out of the same core facts as his timely asserted claims. The Court finds that
they do not relate back to the initial filing date and that they are barred by the statute
of limitations.
IV.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate
of appealability should be granted.
A certificate should issue if petitioner has
demonstrated a “substantial showing of a denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials
of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather,
“[A] petitioner does not satisfy the Rule 15 ‘relation back’ standard merely by
raising some type of ineffective assistance in the original petition, and then amending
the petition to assert another ineffective assistance claim based upon an entirely
distinct type of attorney misfeasance.” United States v. Ciampi, 419 F.3d 20, 24 (1st
Cir. 2005); see also United States v. Stover, 576 F. Supp.2d 134, 140 (D.D.C.2008)
(where petitioner made general claims of ineffective assistance of counsel, new claims
of distinct types of attorney malfeasance occurring before, during and after trial do not
relate back to the original petition under Rule 15).
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the district court must “engage in a reasoned assessment of each claim” to determine
whether a certificate is warranted. Id. Each issue must be considered under the
standards set forth by the Supreme Court in Slack v. McDonnell, 529 U.S. 473 (2000).
Murphy, 263 F.3d at 467. Consequently, the Court has examined each of petitioner’s
claims under the Slack standard.
Petitioner cannot demonstrate that reasonable jurists would find that the denial
of habeas corpus relief on each of the grounds raised in his petition is debatable or
wrong. See Slack, 529 U.S. at 484. Accordingly, the Court will enter an order denying
petitioner a certificate of appealability.
Conclusion
For the foregoing reasons, the habeas corpus petition will be denied.
Dated: December 14, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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