Patterson #130169 v. Smith
Filing
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OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 5 ; Motion for an evidentiary hearing 8 and Motion for leave to raise supplemental issues 10 are DENIED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHESTER PATTERSON,
Petitioner,
Case No. 1:14-cv-878
v.
HON. JANET T. NEFF
WILLIE SMITH,
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 barred by the one-year statute of limitations and as an abuse of the writ
(Dkt 5). The matter is presently before the Court on Petitioner’s objections and supplemental
objections to the Report and Recommendation (Pet’r Obj., Dkt 6; Pet’r Supp’l Obj., Dkt 7).
Petitioner has also since filed a motion for an evidentiary hearing (Dkt 8) and a motion to amend,
which raises two new supplemental issues (Dkt 10).
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 is incarcerated at Ionia Correctional Facility, where he is serving two life sentences
imposed in 1972. Petitioner pleaded guilty to armed robbery and second-degree murder. This case
has a lengthy history as detailed in the R & R (Dkt 5 at 2-3 (quoting Patterson v. Rivers, No. 972153, 1999 WL 775800, at *1 (6th Cir. Sept. 24, 1999)). Petitioner has filed at least seven habeas
corpus petitions challenging his convictions, all of which have been denied.
I. Objections to the Report and Recommendation
Petitioner argues that the Magistrate Judge erred by concluding that his instant habeas corpus
petition is barred as an abuse of the writ (Pet’r Obj., Dkt 6 at 5-7; R & R, Dkt 5 at 11). To support
his argument, Petitioner asserts that
[a]ll petitions for writ of habeas corpus, filed in this case from 1975 to now, are void
and tainted by fraud on the court where they were all based on decisions from the
trial court, presided over by judges who lacked the jurisdiction to enter orders and
opinions in this case.
(Pet’r Obj., Dkt 6 at 5). In addition, Petitioner argues that the statute of limitations should not be
applied to his case “where the trial judges lacked jurisdiction” (id. at 7).
In Petitioner’s
Supplemental Objections, he contends that he is entitled to relief due to the ineffective assistance
of counsel (Pet’r Supp’l Obj., Dkt 7 at 1). Petitioner argues that he has not abused the writ because
“there never would have been any habeas petitions filed in this case if [his attorney] had done his
job in 1974” (id. at 1-2).
The Magistrate Judge correctly determined that Petitioner’s petition is barred as an “abuse
of the writ.” When, as here, the prior habeas action was filed before the 1996 enactment of the
Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT. 1214 (AEDPA), this
Court must consider whether the second or successive petition would have survived under the preAEDPA “abuse of the writ” standard. Cress v. Palmer, 484 F.3d 844, 852 (6th Cir. 2007). The
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“abuse of the writ” standard “allows a second motion containing a new claim where the inmate can
‘show cause for failing to raise [the issue in the first motion] and prejudice therefrom.’” Id. (quoting
In re Hanserd, 123 F.3d 922, 929 (6th Cir. 1997)). Petitioner has not demonstrated cause for failing
to raise his claims in a prior petition. He argues that because “the judges who presided over this case
from 1975 to now” lacked jurisdiction, all of his previous petitions are void (Pet’r Obj., Dkt 6 at 7).
However, that does not establish cause for failing to raise these claims earlier. As the Magistrate
Judge determined, all of Petitioner’s claims are based on facts that were known before the filing of
his fifth habeas corpus petition, if not earlier (R & R, Dkt 5 at 10). For instance, the claims
concerning the trial judge’s alleged bias based on his friendship with the victim’s father and the
subsequent failure by the court and the prosecution to prevent that judge from being involved in the
case are based on facts revealed in 1981 (Pet’r Br., Dkt 3 at 85-6). Because Petitioner offers no
justification for failing to present his claims in a prior petition, his petition would not survive under
the “abuse of the writ” standard. Therefore, the Magistrate Judge was correct in recommending that
the habeas corpus petition be denied.
Even if Petitioner’s petition was not barred as an abuse of the writ, the Magistrate Judge
properly concluded that it is also barred by the one-year statute of limitations provided in 28 U.S.C.
§ 2244(d)(1) (R & R, Dkt 5 at 5). Petitioner’s conviction became final in 1975. A petitioner whose
conviction became final prior to the effective date of the AEDPA, April 24, 1996, has one year from
the effective date in which to file his petition. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001);
Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001). As a result, Petitioner’s one-year limitations
period expired in 1997, which is well before his instant petition was filed.
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Petitioner claims that the statute of limitations should not apply because the judges who
presided over his case lacked the jurisdiction to do so (Pet’r Obj., Dkt 6 at 7). Petitioner’s argument
is without merit. Although the one-year statute of limitations is subject to equitable tolling and the
actual innocence exception, the Magistrate Judge applied the proper standards and correctly
concluded that neither of these is applicable to Petitioner’s case.
A petitioner seeking equitable tolling of the statute of limitations has the burden of
establishing: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted).
The Magistrate Judge correctly concluded that Petitioner has not established either element.
To show actual innocence, a petitioner must present new evidence showing that “‘it is more
likely than not that no reasonable juror would have convicted [the petitioner].’” McQuiggin v.
Perkins, 133 S. Ct. 1924, 1935 (2013) (citation omitted). Petitioner does not claim that he is
innocent or offer any new evidence of his innocence. Because Petitioner failed to establish that
equitable tolling or actual innocence is applicable to his case, he is not excused from the statute of
limitations under 28 U.S.C. § 2244(d)(1). Therefore, the Magistrate Judge properly concluded that
Petitioner’s habeas corpus petition is time-barred.
II. Supplemental Issues
In his motion to raise supplemental issues, Petitioner alleges that he was 17 years old at the
time of the crime and questioning by law enforcement and that his requests to call his mother were
repeatedly denied before he confessed to the crime (Dkt 10 at 2). First, Petitioner contends that his
confession and guilty plea are constitutionally defective because:
(1) he was denied his
constitutional right to talk to his mother before he was questioned by the arresting officers; (2) he
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was never advised of his constitutional right to have his mother present before, and, during
questioning; (3) he was never advised of his constitutional right to have counsel present during
questioning; and lastly, (4) he was never advised that he has a constitutional right to terminate
questioning at any time (Dkt 11 at 2). Petitioner also argues that he was denied the effective
assistance of counsel because his defense attorney failed to move to suppress his confession (Dkt
10 at 2). The Magistrate Judge had no opportunity to evaluate these claims and therefore they are
procedurally barred. See Glidden Co. v. Kinsella, 386 F. App’x 535, 544 n.2 (6th Cir. 2010) (stating
that while the Sixth Circuit has not squarely addressed whether a party may raise new arguments
before a district judge, that were not presented to the magistrate judge, the Sixth Circuit has
indicated that a party’s failure to raise an argument before the magistrate judge constitutes a waiver).
See, e.g., Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); United States v. Waters, 158
F.3d 933, 936 (6th Cir. 1998); Marr v. Foy, No. 1:07-cv-908, 2010 WL 3061297 (W.D. Mich. Aug.
3, 2010); Jones-Bey v. Caruso, 1:07-cv-392, 2009 WL 3644801 (W.D. Mich. Oct. 30, 2009). Thus,
since Petitioner asserts this argument for the first time at this stage of his case, his argument that his
confession and subsequent guilty pleas must be vacated because they were constitutionally deficient
is deemed waived.
Alternatively, even if this claim was not procedurally barred due to Petitioner’s failure to
raise it before the Magistrate Judge, Petitioner’s claim would lack merit. These newly presented
claims are also barred by the one-year statute of limitations, which expired in 1997. Petitioner sets
forth no basis for equitable tolling. See Holland, 560 U.S. at 649. Petitioner merely contends that
his lateness in presenting these issues should be excused “[b]ecause no one has ever told petitioner
that he was a juvenile at the time he was charged with his crime” (Dkt 10 at 2-3). However, this
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argument does not demonstrate that Petitioner has been diligent in pursuing his rights or that some
extraordinary circumstance stood in his way. See Holland, 560 U.S. at 649.
Petitioner appears to cite Miller v. Alabama, 132 S. Ct. 2455 (2012) to support his argument
that as a juvenile, Petitioner “had a constitutional right to have his mother present when he was
questioned by the police” (Dkt 10 at 2-3). Miller, however, holds that mandatory life imprisonment
without parole for defendants under the age of 18 violates the Eighth Amendment’s prohibition on
cruel and unusual punishments. 132 S. Ct. at 2469. Because Petitioner is not arguing that his
sentence is somehow defective, Miller does not apply. Furthermore, in Michigan, the presence of
a parent or guardian during questioning is merely a factor applicable to the determination of whether
a juvenile defendant’s confession is voluntary. See People v. Givans, 575 N.W.2d 84, 88 (Mich.
App. 1997) (listing “the presence of an adult parent, custodian, or guardian” as one of nine factors
of “the totality of the circumstances test to determine the admissibility of a juvenile’s confession”).
Therefore, Petitioner fails to establish that he has been diligently pursing his rights or that any
extraordinary circumstances have prevented him from making this claim earlier, as Givans was
decided in 1997. Petitioner, accordingly, is not entitled to equitable tolling of the statute of
limitations.
In addition, Petitioner has failed to show actual innocence. Petitioner argues that his
confession was inadmissible because he was denied his constitutional right to have his mother
present during questioning, but he does not offer any new evidence of his innocence. In Kuhlmann
v. Wilson, 471 U.S. 436, 454 (1986), the Supreme Court stated that a habeas petitioner must make
an evidentiary showing of “factual innocence” even though “the evidence of guilt may have been
unlawfully admitted.” Consequently, even if Petitioner’s confession was inadmissible, he has not
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provided any evidence that makes it more likely than not that no reasonable jury would have
convicted him. See Schlup v. Delo, 513 U.S. 298, 329 (1995). As a result, Petitioner is not excused
from the statute of limitations under 28 U.S.C. § 2244(d)(1), and his habeas petition is time-barred.1
III. Evidentiary Hearing
Petitioner filed a motion for an evidentiary hearing on his claims of ineffective assistance
of counsel and fraud on the court (Dkt 8 at 1). However, Petitioner did not file his motion until after
the R & R was filed and as a result, this issue was not presented to the Magistrate Judge. Therefore,
it is deemed waived. See Glidden, 386 F. App’x at 544 n.2.
Even if the evidentiary hearing was not waived, Petitioner’s argument that one is appropriate
is without merit. In Schriro v. Landrigan, the Supreme Court gave the following guidance to district
courts:
In deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief
550 U.S. 465, 474 (2007). A hearing is not required if the petitioner’s allegations are “‘inherently
incredible or conclusions rather than statements of fact.’” Arredondo v. United States, 178 F.3d 778,
782 (6th Cir. 1999) (citation omitted). Because all of Petitioner’s allegations that would entitle him
to relief are conclusory in nature, his argument that an evidentiary hearing is necessary is without
merit. Therefore, Petitioner’s request for an evidentiary hearing is denied.
IV. Certificate of Appealability
Having determined Petitioner’s objections lack merit, the Court must further determine
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It also appears that Petitioner’s claims would be subject to dismissal for lack of exhaustion.
See Cunningham v. Hudson, 756 F.3d 477, 485 (6th Cir. 2014).
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pursuant to 28 U.S.C. § 2253(c) whether to grant a certificate of appealability 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:
THEREFORE, IT IS ORDERED that the objections (Dkt 6) and supplemental objections
(Dkt 7) are DENIED and the Report and Recommendation (Dkt 5) is APPROVED and ADOPTED
as the Opinion of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (Dkt 1), motion for
an evidentiary hearing (Dkt 8), and motion for leave to raise supplemental issues (Dkt 10) are
DENIED for the reasons stated in the Report and Recommendation and this Opinion.
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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
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Dated: September___, 2015
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