Dejesus #235982 v. Burton

Filing 8

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 6 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RAFAEL DEJESUS,
Petitioner,

Case No. 1:14-cv-335

v.

HON. JANET T. NEFF

DEWAYNE BURTON,
Respondent.
_______________________________/

OPINION AND ORDER
This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred
to the Magistrate Judge, who issued a Report and Recommendation (R&R) recommending that this
Court deny the petition as time-barred. The matter is presently before the Court on Petitioner’s
objections to the Report and Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and FED.
R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those portions of the Report
and Recommendation to which objections have been made. The Court denies the objections and
issues this Opinion and Order. The Court will also issue a Judgment in this § 2254 proceeding. See
Gillis v. United States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a separate judgment in habeas
proceedings).
Petitioner contends that the Magistrate Judge erred in analyzing Petitioner’s actual innocence
claim under Schlup v. Delo, 513 U.S. 298 (1995), because the Magistrate Judge considered only
whether Petitioner had presented new evidence rather than Petitioner’s argument that he is actually
innocent due to an intervening change in the law. Specifically, Petitioner asserts that the Michigan

supreme court “redefined what constitutes conspiracy with respect to controlled substance offenses”
in People v. Justice, 562 N.W.2d 652 (Mich. 1997), and People v. Mass, 628 N.W.2d 540 (Mich.
2001) (Pet’r Obj., Dkt 7 at 1). Petitioner states that consequently, “he could rely on the trial court
record and intervening change in the law and assert that his conduct with respect to the conspiracy
did not amount to a violation under the subsequent reinterpretation of the conspiracy statute as it
relates to controlled substance offenses” (id. at 2-3). Petitioner’s argument is without merit and the
Court denies Petitioner’s objection.
At the outset, it is not settled whether Petitioner asserts a valid theory for demonstrating
actual innocence. Petitioner argues that Bousley v. United States stands for the proposition that “an
intervening change in the law can constitute factual innocence” (Pet’r Obj., Dkt 7 at 2, citing
Bousley, 523 U.S. 614, 622 (1998)). But Petitioner’s reading of Bousley might be too broad.
Bousley and the other similar cases cited by Petitioner involved changes in federal law within the
context of habeas proceedings under § 2255. See, e.g., Bousley, 523 U.S. 614 (petition under § 2255
where the meaning of the “use” prong in 18 U.S.C. § 924(c) was defined by a Supreme Court
holding); United States v. Garth, 188 F.3d 99 (3d Cir. 1999) (involving same federal statute as
Bousley); United States v. Tyler, 523 F.3d 241 (3d Cir. 2013) (petition under § 2255 involving
federal witness tampering statute limited by Supreme Court holdings); Wooten v. Cauley, 677 F.3d
303 (6th Cir. 2012) (petition under § 2255 where a Supreme Court holding defining “proceeds”
under 18 U.S.C. § 1956 required the Sixth Circuit to change its definition of the term).
Unlike the petitioner’s argument in Bousley, Petitioner’s argument here is that a change in
state law entitles him to overcome the statute of limitations and proceed in habeas proceedings under
§ 2254. Courts have disagreed over how Bousley applies in the § 2254 context. Compare, e.g.,
2

Towler v. Manis, No. 7:13-CV-00458, 2014 WL 4385792, at *6 (W.D. Va. Sept. 3, 2014)
(concluding that an actual-innocence claim could be predicated on a Supreme Court of Virginia
decision issued while the petitioner’s direct appeal was pending, that redefined an element of the
crime of conviction), with Sanchez v. Lee, No. 10 Civ. 7719, 2011 WL 3477314, at *3 (S.D. N.Y.
Aug. 8, 2011) (deciding that Bousley should not be extended to § 2254 petitions because the § 2254
context involves “principles of comity and federalism” that are not part of the § 2255 context), aff’d,
508 F. App’x 46 (2d Cir. 2013) (assuming without deciding that the procedural default could be
excused, and instead affirming the district court under a sufficiency-of-the-evidence standard).
For purposes of this Opinion and Order, the Court assumes without deciding that Petitioner
may assert actual innocence based on an intervening change in state law to overcome the statute of
limitations in a habeas petition under § 2254. Nonetheless, and even if Petitioner’s interpretation
and application of Michigan law is correct,1 Petitioner has still failed to show actual innocence
because he has not satisfied the Schlup standard.
A petitioner must meet the requirements of Schlup v. Delo to make a “convincing actualinnocence claim” that allows a petitioner to overcome AEDPA’s statute of limitations. McQuiggin
v. Perkins, ___ U.S. ___; 133 S. Ct. 1924, 1928 (2013). Under this standard, the “petitioner must
demonstrate that, ‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror
would have convicted him.’” Bousley, 523 U.S. at 623 (quoting Schlup, 513 U.S. at 327-28). In
Schlup, the Supreme Court explained this standard in the following manner:

1

The Court expresses no opinion on whether Petitioner’s interpretation and application of
Michigan law is actually correct. The Court assumes Petitioner is correct for purposes of this
Opinion and Order because the Court does not need to reach these issues of Michigan law.
3

It is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard requires the district court to
make a probabilistic determination about what reasonable, properly instructed jurors
would do. Thus, a petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.
Schlup, 513 U.S. at 329.
“One way to establish factual innocence is to show an ‘intervening change in the law that
establishes the petitioner’s actual innocence.’” Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir.
2012) (quoting United States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001)). The Sixth Circuit’s
four-part test for determining whether a petitioner has demonstrated factual innocence via an
intervening change in the law incorporates the Schlup standard:
(1) the existence of a new interpretation of statutory law, (2) which was issued after
the petitioner had a meaningful time to incorporate the new interpretation into his
direct appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits
of the petition to make it more likely than not that no reasonable juror would have
convicted him.
Wooten, 677 F.3d at 307-08 (emphasis added).
Here, Petitioner has failed to satisfy the Schlup standard. Petitioner’s argument rests on his
assertion that his co-conspirator did not have the required specific intent to participate in the
conspiracy because she allegedly did not know the amount of the drugs to be delivered. The
Michigan supreme court has delineated the elements of conspiracy to possess with intent to deliver
as follows:
[T]o be convicted of conspiracy to possess with intent to deliver a controlled
substance, the prosecution [must] prove that (1) the defendant possessed the specific
intent to deliver the statutory minimum as charged, (2) his coconspirators possessed
the specific intent to deliver the statutory minimum as charged, and (3) the defendant
and his coconspirators possessed the specific intent to combine to deliver the
statutory minimum as charged to a third person.
4

Mass, 628 N.W.2d at 549 (citing Justice, 562 N.W.2d at 659). The Michigan supreme court clarified
the specific intent required by stating that the prosecution must prove “not just that the defendant had
conspired to possess with an intent to deliver some amount of cocaine, but rather, had conspired to
possess with an intent to deliver the statutory minimum [as charged].” Id. Petitioner asserts that,
under Mass, he is actually innocent of conspiracy because he and coconspirator Guzman never
agreed to deliver the cocaine to anyone and because Guzman did not know the quantity of cocaine
involved.
Petitioner’s argument fails. Michigan law does not require direct proof of the conspiracy’s
objectives or the intentions of the coconspirators, but recognizes that “proof may be derived from
the circumstances, acts, and conduct of the parties.” Justice, 562 N.W.2d at 659 (citing People v.
Brynski, 81 N.W.2d 374 (Mich. 1957)). “Inferences may be made because such evidence sheds light
on the coconspirators’ intentions.” Id.
Here, as recounted by the Michigan court of appeals and as indicated by Petitioner in his
Petition, the trial record in this case reflects that Petitioner “was staying with his friend Elsa
Guzman,” left from Guzman’s residence to complete a drug transaction, and was accompanied by
Carlos Santana who had also been visiting Guzman (Pet., Dkt 1 at 7; People v. Dejesus, No. 175370,
at 1-2 (Mich. Ct. App. Jan. 21, 1997)). Before leaving Guzman’s residence, Petitioner “asked
Guzman to hold for him $2,100.00 dollars, a hand gun, [and] a bag containing approximately 258
grams of cocaine” (Pet., Dkt 1 at 7). At trial, Guzman testified that when Petitioner did not return
from the drug transaction, “she got afraid and hid the drugs” (id. at 8). Based on these facts, a
reasonable juror could infer that Guzman had agreed to combine with Petitioner to deliver drugs and
that Guzman knew the amount of drugs exceeded 250 grams, the statutory minimum as charged in
5

this instance, and Petitioner has not met his burden under Schlup. In sum, Petitioner has failed to
demonstrate actual innocence because he has not satisfied the Schlup standard. Therefore, as
explained in the Report and Recommendation, Petitioner’s petition is barred by the one-year statute
of limitations.
Having determined Petitioner’s objections lack merit, the Court must further determine
pursuant to 28 U.S.C. § 2253(c) whether to grant a certificate of appealability (COA) as to the issues
raised. See RULES GOVERNING § 2254 CASES, Rule 11 (requiring the district court to “issue or deny
a certificate of appealability when it enters a final order”). The Court must review the issues
individually. Slack v. McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 466-67 (6th
Cir. 2001).
“When 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.” Slack, 529 U.S. at 484. “Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. Upon review, this Court finds that reasonable jurists would not
find the Court’s procedural ruling debatable as to each issue asserted. A certificate of appealability
will therefore be denied.
Accordingly:

6

IT IS HEREBY ORDERED that the Objections (Dkt 7) are DENIED and the Report and
Recommendation of the Magistrate Judge (Dkt 6) is APPROVED and ADOPTED as the Opinion
of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (Dkt 1) is DENIED
for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to each issue asserted.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: December ___, 2014
10

7