GEORGE CARAM STEEH, District Judge.
Petitioner Derrick Lamond Mitchell (petitioner) has filed a
The charges against petitioner arose from two separate arrests on the night of August 14 to 15, 1998. The state court accurately explained the incidents as follows:
On June 1, 2001, petitioner pleaded guilty to breaking and entering an unoccupied building (the towing company's office). A few days later, petitioner was tried before a jury in Monroe County Circuit Court on the drug and conspiracy charges. He was the only defense witness, and his
On June 8, 2001, the jury found petitioner guilty, as charged, of attempted possession of 225 to 649 grams of cocaine and conspiracy to possess with intent to deliver 225 to 649 grams of cocaine. On August 8, 2001, the trial court sentenced petitioner to two consecutive terms of twenty to thirty years in prison.
In an appeal as of right, petitioner argued that: (1) the trial judge was biased; (2) the trial court denied him an opportunity to present a defense when the court failed to compel the attendance of a Toledo police officer who searched the house in Toledo; (3) his attorney's comment about the jurors deprived him of a fair and impartial jury; and (4-5) the trial court erred by allowing the prosecutor to (a) introduce a LEIN printout of petitioner's arrests and (b) admit evidence of a pending cocaine charge against petitioner in Toledo. The Michigan Court of Appeals rejected these arguments and affirmed Petitioner's convictions in an unpublished,
On June 22, 2005, petitioner filed the first of five motions for relief from judgment. He argued that (1) newly discovered exculpatory evidence from Lyons demonstrated his innocence, (2) a retroactive change in the law required re-sentencing, (3) the prosecutor's misconduct deprived him of a fair trial, (4) trial counsel was ineffective, and (5) appellate counsel was ineffective for not raising these issues on direct appeal. In a supporting brief, petitioner also argued that the trial court gave an inadequate jury instruction on the conspiracy charge. On January 23, 2006, the trial court denied petitioner's motion. The Michigan Court of Appeals subsequently denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D).
On May 15, 2008, petitioner filed an undated second motion for relief from judgment, which alleged that the Monroe County Prosecutor's Office withheld exculpatory evidence from petitioner until December 2005. The evidence in dispute was a Michigan state police report that summarized the contents of a report received from the Los Angeles County Sheriff's Department. The Los Angeles report indicated that deputy sheriffs in Los Angeles had detained Lyons during a traffic stop and that Lyons had cocaine in his shoe.
On July 14, 2008, the trial court denied petitioner's motion on the basis that the evidence was not newly discovered. On November 16, 2009, the Michigan Court of Appeals denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D).
In late 2009, petitioner filed a third motion for relief from judgment, claiming that the Michigan Department of Corrections had miscalculated his minimum sentence. On June 22, 2010, the trial court denied petitioner's motion. On October 7, 2011, the Michigan Court of Appeals denied leave to appeal on the basis that an "appeal from the denial of a successive motion for relief from judgment is prohibited by [Michigan Court Rule] 6.502(G)(1)."
Meanwhile, on July 19, 2011, petitioner filed a fourth motion for relief from judgment in which he claimed to have new evidence that Lieutenant Luke Davis pursued false charges against petitioner in retaliation for petitioner's failure to pay Davis's bribe. The trial court held a hearing on petitioner's claim about Lieutenant Davis and denied relief after examining Davis's personnel file and determining that there were no complaints about Davis before petitioner's trial.
An additional issue was whether the prosecution withheld information about the Los Angeles County Sheriff's report concerning the traffic stop of Lyons. On August 8, 2012, the trial court determined that petitioner had previously raised this issue and, therefore, he was not entitled to relief from judgment pursuant to Michigan Court Rue 6.508(D)(2). Petitioner did not appeal the trial court's decision.
In 2013, petitioner filed his fifth motion for relief from judgment. He claimed that the prosecution had offered him a plea bargain and that his trial attorney was ineffective for advising him not to accept the offer. On July 19, 2013, the trial court denied the motion after concluding that petitioner had not satisfied the requirements of Michigan Court Rule 6.508(D). Petitioner appealed the trial court's decision, but the Michigan Court of Appeals dismissed his appeal on November 26, 2013, because petitioner failed to pay the filing fee in a timely manner.
Petitioner's habeas corpus petition has a typewritten date of October 20, 2014, but it was filed with the Clerk of the Court on July 23, 2015. Petitioner alleges as grounds for relief that (1) the State withheld exculpatory evidence from him, (2) he has newly discovered evidence demonstrating his innocence, and (3) his trial attorney was ineffective for failing to fully explain the prosecution's plea offer to him and for advising him not to accept the offer. As noted above, respondent asserts that these claims are barred from substantive review by petitioner's failure to comply with the statute of limitations. In a reply to respondent's motion, petitioner asks the Court to equitably toll the limitations period and to excuse the late filing because he is actually innocent of the crimes for which he was convicted.
The Court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). This rule applies to habeas corpus proceedings.
The basis for respondent's motion is the statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA governs this case because Petitioner filed his habeas petition after AEDPA was enacted.
AEDPA established a one-year period of limitations for state prisoners to file their federal habeas corpus petitions.
28 U.S.C. § 2244(d)(1)(A)-(D). "AEDPA also contains a tolling provision, which specifies that `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.'"
"Direct review" concludes for purposes of § 2244(d)(1)(A) when the availability of direct appeal to the state courts and to the United States Supreme Court has been exhausted.
Petitioner's judgment became final for purposes of § 2244(d)(1)(A) on September 28, 2004, ninety days after the Michigan Supreme Court denied leave to appeal on direct review. The statute of limitations began to run on the following day.
According to the state trial court, petitioner filed an undated second motion for relief from judgment on May 15, 2008.
The habeas petition would be untimely even if the Court tolled the limitations period from the date of petitioner's first motion for relief from judgment (June 22, 2005) through July 29, 2014, when the Michigan Supreme Court denied leave to appeal the trial court's denial of petitioner's fifth and final motion for relief from judgment. The reason for this conclusion is that petitioner did not file his habeas petition until July 23, 2015, almost a year after the state courts concluded their review of his fifth post-conviction motion, and the statute also ran 266 days between the conclusion of petitioner's direct appeal and the filing of his first motion for relief from judgment.
The Court acknowledges that petitioner dated his habeas petition on October 20, 2014, and that, "[u]nder the prison mailbox rule, a habeas petition ordinarily "is considered filed when the prisoner provides the petition to prison officials for filing."
Petitioner, however, did not sign his habeas petition, file a certificate of service, or swear under the penalty of perjury that he submitted his habeas petition to prison officials for mailing on October 20, 2014.
Petitioner claims that the State withheld exculpatory evidence from him, and he purports to have newly-discovered evidence demonstrating his innocence. Under 28 U.S.C. § 2244(d)(1)(B), the limitations period can begin to run on the date on which a state-created impediment is removed if the petitioner was prevented from filing by unlawful state action. And under 28 U.S.C. § 2244(d)(1)(D), the limitations period can begin to run on the date when the factual predicate for the claim or claims "could have been discovered through the exercise of due diligence." The question under § 2244(d)(1)(D)
Petitioner could have raised his third claim (ineffective assistance of counsel) on direct appeal, because the factual predicate for that claim obviously was known to him at trial. Petitioner nevertheless contends that the prosecution failed to timely disclose exculpatory evidence regarding the Los Angeles police report about Lyons and Lyons' 2011 affidavit.
Petitioner alleges that the prosecution withheld evidence that Lieutenant Luke Davis lied at petitioner's trial, that Davis set him up with the drugs, and that Davis stole about 400 grams of Lyons' cocaine. Petitioner asserts that this evidence would have supported his trial testimony that Davis tried to extort $30,000 from him.
Petitioner's allegations about Davis derive from Lyons' 2011 affidavit in which Lyons states that, after he was charged with possession of cocaine in Monroe, he took full responsibility for the cocaine found in his possession and informed Lieutenant Davis that petitioner had nothing to do with the crime. The affidavit goes on to say that Lieutenant Davis offered to make the charges against Lyons disappear if Lyons gave him $30,000. Lyons claims to have agreed to this deal and to have advised petitioner to pay the money to Davis. Lyons asserts that Davis subsequently informed him that petitioner kept the money, and, as a result, Davis intended to make sure that petitioner got at least thirty years in prison. Lyons also claims that Davis promised not to turn in all the cocaine if Davis kept his mouth shut. According to Lyons, there were 1,000 grams of cocaine in his car trunk, but only 599 grams were turned in to the police.
Lyons' affidavit is suspect for a couple of reasons. First, he is or was a friend of petitioner's.
Finally, although Davis eventually was charged with embezzlement and several other crimes in an unrelated case, petitioner's trial was in 2001, and the charges against Davis covered the period of March 1, 2006, through December 31, 2008.
There is no credible basis for petitioner's argument that the prosecution withheld Lyons' allegations about Davis. There also is no basis for tolling the limitations period under § 2244(d)(1)(D), because petitioner could have acquired the information about Davis from Lyons in 2005 when Lyons prepared a previous affidavit for petitioner.
Petitioner contends that the prosecution also withheld evidence of the Los Angeles County Sheriff's report concerning the traffic stop involving Lyons. The police report indicated that Lyons had an airline ticket in his possession and shoes with cocaine in the heel. Although petitioner contends that the prosecution withheld the report from him for years, there was mention of a police report from California at trial. Lieutenant Davis testified that he contacted someone in the drug unit in Los Angeles and received a copy of the report and other paperwork from the person. (Trial Tr. Vol. IV, at 10, June 7, 2001, ECF No. 7-34, Pg ID 1655.) It appears from this testimony that the prosecution did not withhold information obtained from the Los Angeles County Sheriff and that petitioner could have obtained the police report in question if he had acted with reasonable diligence before or during trial.
The report, moreover, is not exculpatory evidence. In fact, it tended to reinforce the prosecution's theory that petitioner and Lyons were involved in a conspiracy to obtain cocaine from California and distribute it in Ohio.
For the foregoing reasons, the Court concludes that the factual predicate for petitioner's claims could have been discovered with reasonable diligence in time to file a timely habeas petition. Furthermore, the State did not create an impediment to filing a timely habeas petition. The Court therefore declines to delay the start of the limitations period under § 2244(d)(1)(B) or § 2244(d)(1)(D).
Petitioner urges the Court to equitably toll the limitations period. The Supreme Court, however, has "made clear that a [habeas] `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."
Petitioner has been pursuing his rights for years, but he has not shown that some extraordinary circumstance stood in his way of filing a timely habeas petition. The Court therefore declines to equitably toll the limitations period.
Petitioner claims that his untimely petition should be excused because he is innocent of the crimes for which he is incarcerated. The Supreme Court has held that actual innocence, if proved, serves as a gateway through which habeas petitioners may pass when the impediment to consideration of the merits of their constitutional claims is expiration of the statute of limitations.
Petitioner's claim of actual innocence is based on Lyons' 2011 affidavit in which Lyons states that petitioner had nothing to do with the crime and that Lieutenant Davis threatened to have petitioner sent to prison for at least thirty years because petitioner did not pay him $30,000. Lyons also claims in his affidavit that Davis threatened to sent Lyons to prison for thirty years if Lyons did not keep his mouth shut.
Lyons' affidavit must be "treated with a fair degree of skepticism" because it was signed years ten years after petitioner's trial, and it is inconsistent with petitioner's own admissions to law enforcement officials that he dealt with large quantities of cocaine and that the cocaine in Lyons' car belonged to him.
Furthermore, the evidence against petitioner was substantial. The jury was informed that he had pleaded guilty to aiding and abetting the two men who broke into the office of the towing company that had towed Lyons' car. And Lieutenant Davis testified as to why he thought the cocaine in Lyons' car belonged to petitioner. He cross-referenced the license plate on the car that Lyons was driving when he was stopped and determined that the white Cadillac was registered to 512 Mettler Street, which was an address that petitioner had used. The registration plate on the vehicle that petitioner was driving during the breaking-and-entering incident was registered to an address that Lyons had used. And a confidential informant gave Lieutenant Davis additional information that led Davis to believe the shoes or boots with cocaine in Lyons' car belonged to petitioner. Similar shoes or boots with hollowed-out heels were found at the Woodland Street address, which was linked to petitioner. (Trial Tr. Vol. IV, at 10, 65-66, June 7, 2001, ECF No. 7-34, Pg ID 1655, 1710-11.)
Petitioner denied the charges against him and claimed that Lieutenant Davis asked him for $30,000 in exchange for help on petitioner's breaking-and-entering charge (
Lieutenant Davis, moreover, testified that petitioner had contacted him and asked to speak with Davis when Davis was investigating the case against Lyons. At their subsequent meeting, petitioner stated that he wanted to help Lyons. Petitioner then admitted that the cocaine found in the car Lyons had been driving on the night in question was his (petitioner's) cocaine. Petitioner went on to describe how he would order the cocaine from Los Angeles, pay $16,000 per kilogram of cocaine, have the cocaine sent to him by air with couriers, and then sell the cocaine in Toledo for $24,000 to $25,000 per kilogram. Petitioner stated that his biggest transaction had involved five kilograms of cocaine. (
Detective Gary Shinkle of the Monroe County Sheriff's Office corroborated critical parts of Davis's testimony. Shinkle testified that petitioner informed him in Davis's presence that he purchased two or three kilos of cocaine at a time and usually as much as five kilos. (
The Court concludes from the record that petitioner has not alleged a credible claim of innocence. Therefore, he may not pass through the "actual innocence" gateway and have his claims heard on the merits.
Petitioner filed his habeas petition after the statute of limitations. He is not entitled to equitable tolling of the limitations period, and he has not asserted a credible claim of actual innocence. Therefore, respondent is entitled to judgment as a matter of law. The Court grants respondent's motion for summary judgment and dismissal of the habeas petition (ECF No. 6) and dismisses the habeas corpus petition (ECF No. 1) as untimely.
Before a habeas petitioner may appeal a District Court's decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When, as here, a district court rejects a habeas petition on procedural grounds without reaching the merits of the petitioner's underlying claims, the petitioner must show "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."
Reasonable jurists could not debate whether the Court's procedural ruling is correct. The Court therefore denies a certificate of appealability. Petitioner nevertheless may seek a certificate of appealability from the United States Court of Appeals for the Sixth Circuit, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1), and he may proceed
