MATTHEW F. LEITMAN, District Judge.
In 1996, a state-court jury found Petitioner Alfred E. Owens, Jr. ("Owens") guilty of first-degree murder, MICH. COMP. LAWS § 750.316, second-degree murder, MICH. COMP. LAWS § 750.317, assault with intent to murder, MICH. COMP. LAWS § 750.83, and three counts of possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b (the "1996 Convictions"). Owens is currently serving a mandatory life sentence for the 1996 Convictions in the custody of the Michigan Department of Corrections.
Two of the key prosecution witnesses at Owens' 1996 trial were Antonio Williams ("Antonio"
Owens then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (the "Petition") in this Court. In the Petition, Owens claims, based on the Antonio and Carson Recanting Affidavits, that (1) the state prosecutor knowingly offered perjured testimony at his 1996 trial, (2) the prosecutor withheld exculpatory evidence from the defense, and (3) newly discovered evidence demonstrates that he (Owens) is actually innocent. (See Pet., ECF No. 1.)
Respondent argues, among other things, that Owens' claims are time-barred by the statute of limitations in 28 U.S.C. § 2244(d)(1)(A). That statute requires a habeas petitioner to file his petition not more than one year after his "judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Respondent contends that Owens' claims are tardy under this statute because the 1996 Convictions became final long before 2012.
Owens counters that his claims are timely under a different statute of limitations — the one found in 28 U.S.C. § 2244(d)(1)(D). That statute permits a habeas petitioner to file his petition within one year from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D) Owens contends that his claims may proceed under this statute because he had no idea (and could not reasonably have known) that Carson or Antonio would recant until 2012, when Carson voluntarily came forward and offered to do so. Owens says that at that point, he reached out to Antonio, and Antonio also agreed to recant. Owens' theory is that he acted with due diligence because once Carson came forward, he moved promptly to contact Antonio, obtain the Carson and Antonio Recanting Affidavits, file a motion for relief from judgment in state court, and, finally, to file the Petition when the state court denied relief.
For two independent reasons, the Court concludes that Owens' claims are not timely under 28 U.S.C. § 2244(d)(1)(D). First, Owens' theory that he acted with due diligence is not supported by reliable evidence. Owens' theory of due diligence — indeed, his entire explanation of the circumstances leading up to the filing of the Petition — rests primarily upon the testimony of Owens, Carson, and Owens' brother, Will Owens ("Will"). The Court heard from those three witnesses at an evidentiary hearing, and it finds that the witnesses and their testimony are neither credible nor reliable. Second, the record affirmatively demonstrates a lack of due diligence. In 2000 — more than ten years before Owens first asserted the claims in the Petition — Carson offered additional sworn testimony in which he both recanted at least some material aspects of his 1996 testimony against Owens and accused the law enforcement officers who investigated Owens of committing misconduct. Yet, Owens did nothing to follow up on Carson's recantation and accusations. This lack of diligence further — and independently — persuades the Court that Owens' federal habeas claims are not timely under 28 U.S.C. § 2244(d)(1)(D).
In the alternative, Owens argues that the limitations period should be equitably tolled based upon his showing that he is actually innocent of crimes that comprise the 1996 Convictions. However, like Owens' theory of due diligence, Owens' claim of actual innocence is not supported by sufficient reliable evidence. The Court therefore declines to toll the statute of limitations based upon Owens' purported actual innocence.
Accordingly, for the reasons explained in detail below, the Court
The essential facts and procedural history relevant to issues now before the Court are as follows.
Owens' convictions arise of the shootings of Antonio, Ricky Munson ("Munson"), and Akemji Williams ("Akemji") on September 18, 1994. Munson and Akemji died from the gunshots; Antonio was seriously injured.
The morning after the shooting, Owens and his wife Melissa Owens ("Melissa") left Michigan and traveled to Tennessee. (See 3/30/2019 Evid. Hrg. Tr., ECF No. 19, PageID.3381.) While in Tennessee, Owens learned that he was wanted by law enforcement authorities for the shootings. (See id.) But he did not turn himself in. Instead, he took refuge in a Nashville apartment. (See id.) Authorities eventually tracked Owens down in the apartment and attempted to arrest him. (See id.) Owens initially barricaded himself in the apartment, but he eventually surrendered to authorities and was brought back to Michigan to stand trial. (See id., PageID.3381-3382.)
Owens was charged with the murders of Munson and Akemji, the attempted murder of Antonio, and various gun possession offenses. Owens was first tried on these charges in 1995, but the trial ended in a mistrial. Owens was brought to trial on these charges a second time in 1996 ("Owens' Underlying 1996 Trial"), and he was convicted on all charges at that trial.
Two of the key prosecution witnesses at Owens' Underlying 1996 Trial were Antonio and Carson. Antonio testified that about four to six weeks before the shootings, he and Akemji went to purchase crack cocaine from Owens. (See 4/23/1996 Trial Tr. at 371, ECF No. 5-22, PageID.2108.) When they met up with Owens, Owens was with Brice Allen ("Brice") and Gerry Allen ("Gerry"). (See id.) Antonio said that at the meeting, Owens said that he (Antonio) and Akemji were going to have to kill a rival drug dealer named Myron Milton
Antonio then testified that two to three weeks before the shooting, he, Akemji, Carson, and others drove to a location on Montana Street in Pontiac, Michigan. (See id. at 382, PageID.2119.) Antonio said that when they arrived, they met with four men — Owens, Brice, Gerry, and a man known as "Fat Howard." (Id. at 384, PageID.2121.) Antonio told the jury that during this meeting, Owens again said that he (Owens) intended to kill Milton and that he (Owens) wanted Antonio and Akemji to set Milton up for the hit. (See id. at 384-388, PageID.2121-2125.) Antonio said that he and Akemji refused to participate in Owens' plot to kill Milton and that Owens then angrily told them that they had been "playing with [him] too long." (Id. at 387, PageID.2124.)
Antonio next testified that on the evening of September 17, 1994 (hours before the shooting in the early morning of September 18), he and Akemji were driving in Akemji's car with a third man named Germaine Selvy ("Selvy"). (See id. at 393-395, PageID.2130-2132.) According to Antonio, as they pulled into the parking lot of a store, Selvy saw Owens and Brice sitting in a parked car. Selvy cried out that he saw Brice reach for a gun, and Akemji began to drive the vehicle away from the parking lot. (See id. at 395-403, PageID.2132-2140.) As Akemji was driving away, Selvy fired shots at the vehicle in which Owens and Brice were sitting. (See id.)
Antonio then testified that later that same evening, he and Akemji were parked near an after-hours gambling establishment waiting to pick up Akemji's mother. (See id. at 401-405, PageID.2138-2142.) Antonio said that as they were waiting, Munson approached the car to ask for a ride. (See id. at 405-406, PageID.2142-2143.) Antonio further testified that Owens then approached the car with a gun in his hand and fired shots into and towards the vehicle. (See id. at 406-410, PageID.2143-2147.) Antonio was shot six times, but he survived. Akemji and Munson were each also shot, and they died from their wounds.
Antonio finally testified that he told the police that Owens was the shooter while he was hospitalized after the shooting. (See id. at 416-418, PageID.2153-2155.) He said he learned that his sister had been receiving threats from persons that Antonio believed were associated with Owens. (See id.) He said that he did not want his sister to be harmed, so he decided to inform the police that Owens was the shooter. (See id.) At the time that Antonio made that decision, he could not speak because he had a tube in his throat to help him breathe. (See id.) He wrote the names of Owens and Brice on a sheet of paper that was given to the police. (See id. at 418-421, PageID.2155-2158.)
Carson also testified as a key prosecution witness at Owens' Underlying 1996 Trial. Carson described interactions that he had had with both Milton and Owens. He first told the jury that Milton paid him money to kill Owens and that he took the money but had no intention of killing Owens. (See 4/25/1996 Trial Tr. at 568, ECF No. 5-23, PageID.2305.) Carson then testified that after he took the money from Milton, he (Carson) had contact with Owens when they both reported to their parole officers in Pontiac. (See id. at 569, PageID.2306.) Carson told Owens that he had taken money from Milton, and Carson assured Owens that he (Carson) was not going to kill him (Owens). (See id.) Carson had this conversation with Owens because Carson was concerned that if Owens heard about the payment from Milton, Owens would try to harm Carson based on the mistaken belief that Carson actually intended to kill him. (See id. at 569-570, PageID.2306-2307.)
Carson then corroborated Antonio's account of Antonio's meeting with Owens on Montana Street (described above). Carson testified that he was present at that meeting with Owens, Antonio, Akemji, and others, and Carson confirmed that at the meeting Owens asked Antonio and Akemji to lure Milton to a meeting where Milton would be killed. (See Id. at 569-578, PageID.2306-2315.) Carson echoed Antonio's testimony that Antonio and Akemji refused to lure Milton and, more importantly, that their refusal upset Owens. (See id. at 576-577, PageID.2313-2314.) Carson also testified that Owens "always" said he was not "going to leave no witnesses" to his crimes. (Id. at 587-579, PageID.2315-2316.) Carson further testified that he had not been promised anything in exchange for his trial testimony and that he did not expect any help or benefit from police or prosecutors in exchange for his testimony. (See 4/29/1996 Trial Tr. at 669-672, ECF No. 5-24, PageID.2406-2609.)
Owens presented an alibi defense at trial. He claimed that he was playing cards at a hotel on the night of the shooting. His wife Melissa testified in support of his alibi defense.
The jury convicted Owens of first-degree murder, MICH. COMP. LAWS § 750.316, second-degree murder, MICH. COMP. LAWS § 750.317, assault with intent to murder, MICH. COMP. LAWS § 750.83, and three counts of possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b.
Following the 1996 Convictions and sentencing, Owens filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised the following three claims:
The Michigan Court of Appeals affirmed the 1996 Convictions in an unpublished opinion. See People v. Owens, No. 195521 (Mich. Ct. App. June 27, 1997). Owens filed an application for leave to appeal in the Michigan Supreme Court, but it was denied by standard order on June 29, 1998. See People v. Owens, 587 N.W.2d 634 (Mich. 1998) (Table).
In 2000, Owens was charged with a different but related crime — solicitation of the murder of Milton. The solicitation charge was based, in part, on Owens' conduct at the Montana Street meeting that Antonio and Carson had described to the jury at Owens' Underlying 1996 Trial. Simply put, after persuading a jury to convict Owens for shooting Antonio and killing Akemji in Owens' Underlying 1996 Trial, the prosecution sought to convict Owens for his alleged solicitation of Milton's murder that occurred, in part, during the run-up to the shooting of Antonio and Akemji.
Antonio and Carson both testified at the preliminary examination in the solicitation case. During their testimony, both described the Montana Street meeting in a manner that was largely consistent with their testimony from Owens' Underlying 1996 Trial. Carson also described additional discussions that he had with Owens in July of 1994 in which Owens allegedly asked Carson to assist in locating Milton in Pennsylvania (where Milton apparently was at the time) so that Milton could be killed. (See Prelim. Exam. Tr. at 41-46, ECF No. 28-2, PageID.4044-4050.)
The prosecution then called Antonio and Carson as witnesses at the trial in the solicitation case. Antonio again testified in a manner that was generally consistent with his testimony in Owens' Underlying 1996 Trial. But Carson did not.
Carson acknowledged meeting Owens at the parole office and discussing with Owens that he had accepted money from Milton to kill Owens. However, Carson then testified that, to his knowledge, Owens thereafter did not raise with him any issues related to Milton. (See 1/21/2000 Trial Tr. at 577, ECF No. 28-6, PageID.4552). Carson told the jury that he did not have any discussions with Owens about Milton "besides the one at the parole office...." (Id. at 584, PageID.4554.) He then testified that "to [his] knowledge," Owens did not "ask him to do something" in late July or August of 1994 and that he did not recall Owens asking him get Antonio and Akemji to call Milton. (Id. at 610-612, PageID.4560.) All of this testimony directly contradicted Carson's testimony from Owens' Underlying 1996 Trial in which he explained that after meeting Owens at the parole office, he (Carson) participated in the Montana Street meeting with Owens during which Owens (1) asked Antonio and Akemji to lure Milton to his death and (2) became upset when they declined to do so. In addition, Carson also testified at the solicitation trial that the police officers who were investigating the solicitation by Owens — the same officers who were involved in the investigation of Owens for the crimes at issue in Owens' Underlying 1996 Trial — manipulated a recording of their interview with him by turning the recorder on and off at various points during the interview. (See 1/24/2000 Trial Tr. at 766, 831, ECF No. 28-7, PageID.4608, 4673.) Finally, Carson further testified that the same officers may have instructed him to falsely say that they (the officers) had not promised him anything in exchange for his testimony. (See id. at 766-767, PageID.4608-4609.)
The trial judge at the solicitation case eventually declared Carson unavailable based upon lack of memory,
There is no indication in the record that Owens (or anyone acting on Owens' behalf) attempted to contact Carson in 2000 after Carson's trial testimony in the solicitation case in order to discuss Carson's changed testimony and/or his suggestions that the law enforcement officers investigating Owens had attempted to manipulate evidence and falsify testimony. Nor is there any indication that Owens engaged a lawyer at that time to explore whether he could obtain relief from the 1996 Convictions based upon Carson's 2000 testimony.
In 2009, Owens' brother Will contacted attorney James Sterling Lawrence ("Lawrence") about the possibility of Lawrence representing Owens. (See 4/22/2019 Lawrence Aff. at ¶2, ECF No. 20, PageID.3514.) Lawrence then contacted Owens for the first time. (See id.) It does not appear that Owens hired Lawrence at that time.
In January 2011, Owens did formally hire Lawrence to review the proceedings that led to the 1996 Convictions and to offer an assessment of Owens' options for attacking the convictions. (See id. at ¶¶ 4-5, PageID.3514.) Among other things, Lawrence reviewed preliminary examination transcripts, portions of the transcripts from Owens' first trial (the trial that ended in a hung jury), and the transcript of Owens' Underlying 1996 Trial (the trial that ended with Owens' convictions). (See 6/10/2011 Lawrence Ltr., ECF No. 26-3.) Then, by letter to Owens dated June 10, 2011 (with a copy to Owens' brother, Will), Lawrence reported the results of his preliminary review. (See id.) The letter included a summary of the testimony at Owens' Underlying 1996 Trial, including the testimony provided by both Carson and Antonio. (See id.)
In July 2011, Owens and Will spoke by telephone and appeared to discuss possible strategies for attacking Owens' 1996 Convictions. It appears that during this conversation, Will reported to Owens that (1) he (Will) had discussed with Lawrence the possibility of seeking recantations from Antonio and from Carson and (2) Lawrence suggested making recantation "the last issue" in any attack of the convictions because witnesses who initially offer to recant sometimes back away from their recantations. (7/29/2011 Call Tr., ECF No. 23-3, PageID.3550.)
Between July 2011 and February 2012, Lawrence conducted further analysis of Owens' case. By letter dated February 14, 2012, Lawrence provided an update to Owens (with a copy to Will). (See 2/14/2012 Lawrence Ltr., ECF No. 28-10.) In this second letter, Lawrence reported that he had completed his review of the transcripts from Owens' first trial (the one that ended in a hung jury) and had met with Will. (See id.) Importantly, Lawrence told Owens that, based upon his review of all of the trial transcripts and his discussions with Will, "it appears that at one point Joseph Carson was willing to recant, and also Antonio Williams, may be willing to recant." (Id., PageID.4864.) Lawrence told Owens that the potential willingness of these witnesses to recant "needs to be investigated and both gentlemen are either on probation or parole." (Id.)
According to Owens, before he followed up on Lawrence's suggestion to investigate, Carson came forward on his own and offered to recant. As described in much more detail below, Owens says that in the Spring of 2012, Carson approached his (Owens') mother, said that his testimony against Owens at Owens' Underlying 1996 Trial was false, and offered to recant. Owens' mother then supposedly informed Will about Carson's willingness to recant, and Will informed Lawrence. Lawrence next obtained the Carson and Antonio Recanting Affidavits, and then Lawrence filed a motion for relief from judgment in state court based upon those affidavits.
Lawrence filed Owens' motion for relief from judgment in state court on February 5, 2013. The motion raised the following claims:
Owens supported his motion for relief from judgment with the Antonio and Carson Recanting Affidavits. In the Antonio Recanting Affidavit, which was dated September 7, 2012, Antonio claimed in relevant part that:
(See Antonio Recanting Affidavit, ECF No. 1-2, PageID.99-103.) The Antonio Recanting Affidavit did not say that Antonio was ever unwilling to recant his testimony; it was silent about when Antonio was first willing to offer his sworn recantation.
In the Carson Recanting Affidavit, which was signed on November 19, 2012, Carson claimed in relevant part that:
(See Carson Recanting Affidavit, ECF No. 1-3, PageID.104-105.)
Unlike the Antonio Recanting Affidavit, the Carson Recanting Affidavit did indicate that there was a period during which Carson would not give a sworn recantation. Carson said that he was unwilling to sign a recanting affidavit until he was "released on parole." (Id., PageID.105.) In a later affidavit submitted to this Court, Carson clarified that "released on parole" meant "discharged" from parole supervision — a discharge that occurred in 2012. (ECF No. 12-2, PageID.3311.) Simply put, Carson contended that he was not willing to offer a sworn recantation until 2012.
The state trial court denied Owens' motion for relief from judgment in an Opinion and Order dated January 16, 2014. (See ECF No. 5-30.) The court first held that Owens was not entitled to relief because he failed to satisfy Michigan Court Rule 6.508(D)(3). (See id., PageID.2932-2934.) That rule provides that a defendant is not entitled to relief from judgment based upon a ground that could have been raised on direct appeal unless the defendant shows both "good cause" for failing to raise the issue and "actual prejudice" from the complained-of error. The trial court held that Owens failed to show "good cause" for not raising his claims on direct appeal. The court rejected Owens' argument that he could not have raised the claims earlier because the claims were based upon newly discovered evidence — namely, the Antonio and Carson Recanting Affidavits. The court concluded that while the Antonio and Carson Recanting Affidavits were signed shortly before Owens filed his motion, the affidavits did not clearly indicate when Owens learned of the information in the affidavits. (See id., PageID.2933-2934.) For that reason, the trial court ruled that Owens failed to show that the information in the Antonio and Carson Recanting Affidavits was newly discovered and that he could not have raised issues related to the affidavits on direct appeal. (See id.)
The state trial court also ruled that Owens' claims failed on the merits. The court noted that recanting affidavits are "traditionally regarded as suspect and untrustworthy." (Id., PageID.2935.) The court then concluded that Owens was not entitled to a new trial because he "has not clearly established either the veracity of [the Antonio Recanting Affidavit] or the falsity of [Antonio's] trial testimony." (Id.) The court likewise concluded that Owens "has not clearly established either the veracity of [the Carson Recanting Affidavit] or the falsity of [Carson's] trial testimony." (Id., PageID.2936.)
Owens filed an application for leave to appeal in the Michigan Court of Appeals, but it was denied by form order. See People v. Owens No. 322729 (Mich. Ct. App. Aug. 28, 2014). Owens then applied for leave to appeal in the Michigan Supreme Court, but on April 28, 2015, it, too, denied leave. See People v. Owens, 862 N.W.2d 187 (Mich. 2015) (Table).
Owens filed the Petition in this Court on July 29, 2015. (See Pet., ECF No. 1.) In the Petition, Owens presents three claims: (1) that he was denied due process of law by the state prosecutor's knowing use of perjured testimony; (2) that he was denied due process of law by the state prosecutor's failure to disclose known exculpatory evidence; and (3) that newly discovered evidence demonstrated that he was denied due process of law. (See id., PageID.6-11.)
Owens recognizes that the Petition — which seeks relief from convictions obtained at Owens' Underlying 1996 Trial that became final on direct review more than twenty years ago — "[o]bviously ... raises a question of timeliness." (Id., PageID.28.) He addresses that question in the Petition. Owens contends that his claims are timely under 28 U.S.C. § 2244(d)(1)(D)
Respondent filed an Answer in Opposition to the Petition on February 4, 2016. (See ECF No. 4.) In the Answer, Respondent argues, among other things, that Owens' federal habeas claims are barred by the one-year statute of limitations in 28 U.S.C. § 2244(d)(1)(A)
After some preliminary proceedings and supplemental briefing, the Court decided to hold a limited evidentiary hearing to inquire into (1) the timeliness of the Petition and (2) whether Owens was actually innocent of the crimes that comprise the 1996 Convictions. (See Order, ECF No. 15.) The Court held the evidentiary hearing on March 20, 2019. Owens called four witnesses at the hearing: himself, Carson, his mother Rosetta Bush, and his brother Will.
In an attempt to support his theory that he acted with due diligence and his claim of actual innocence, Owens elicited the following testimony from his witnesses on direct examination at the evidentiary hearing:
Owens was unable to call Antonio as a witness because Antonio had apparently died several years before the evidentiary hearing. Respondent did not call any witnesses.
Following the hearing, Owens and Respondent submitted supplemental briefing on the limitations and actual innocence issues. (See ECF Nos. 26, 28.) Owens attached to his supplemental brief records from the Michigan Department of Corrections showing that Carson and Antonio were both inmates at the Muskegon Correctional facility from January 13, 2000, to January 27, 2000, and again from November 1, 2000, to November 17, 2000. (See ECF No. 26, PageID.3929; ECF No. 26-1, PageID.3938-3946; ECF No. 26-2, PageID.3947-3949.) These records fix the time-frame for the conversation, described by Carson on direct examination at the evidentiary hearing, in which he and Antonio agreed to recant the false testimony that they provided against Owens at Owens' Underlying 1996 Trial.
Prisoners seeking federal habeas corpus relief from a state court judgment face a one-year statute of limitations. The pertinent statutory provision states:
28 U.S.C. § 2244(d). Absent equitable tolling or some other exception to the limitations period, a habeas petition filed outside the prescribed time period is subject to dismissal. See Jurado v. Burt, 337 F.3d 638 (6th Cir. 2003); Wilson v. Birkett, 192 F.Supp.2d 763, 765 (E.D. Mich. 2002) (dismissing untimely habeas petition).
Owens argues that his claims are timely under 28 U.S.C. § 2244(d)(1)(D), which, as noted above, permits a habeas petitioner to file his claims within one year of "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." A habeas petitioner who invokes this limitations provision "bears the burden of proving that he exercised due diligence, in order for the statute of limitations to begin running from the date he discovered the factual predicate of his claim." DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006).
Owens first presented the claims in the Petition to the state court in February 2013, and he then filed the Petition in this Court on July 29, 2015. In order to show that the claims in the Petition are timely under 28 U.S.C. § 2244(d)(1)(D), Owens must show that, through the exercise of due diligence, he could not have discovered the factual predicate for the claims before on or about May 8, 2012 (this period accounts for tolling the period during which the claims were pending in state court).
For two separate and independent reasons, the Court concludes that Owens has not satisfied this burden. First, his theory of diligence and of when he should reasonably have discovered the factual predicate for his claims — indeed, his entire explanation of the circumstances leading up to the filing of the Petition — rests primarily on his direct testimony, Carson's direct testimony, and Will's direct testimony at the evidentiary hearing before this Court. But for the reasons explained in detail below, the Court did not find these witnesses to be credible and/or reliable. Because Owens' theory of diligence and timeliness is not supported by trustworthy evidence, his habeas claims may not proceed under 28 U.S.C. § 2244(d)(1)(D). Second, Owens apparently did nothing in 2000 when Carson recanted a key portion of his trial testimony from Owens' Underlying 1996 Trial, recanted other sworn testimony that he had given, and identified possible manipulation of evidence by law enforcement. Owens' failure to follow up on those matters at that point persuades the Court that Owens did not exercise due diligence in discovering the factual basis for his claims.
The Court found the testimony of Owens, Carson, and Will to be unreliable and unbelievable for a host of reasons, including but not limited to the following:
For all of the reasons explained above, the Court does not find the testimony of Owens, Carson, and Will to be trustworthy, reliable, and/or credible. Accordingly, that testimony is insufficient to support a finding that, through the exercise of due diligence, Owens could not have learned the factual predicate of his claims before May 8, 2012. Indeed, the testimony is so unreliable that it could not support any finding as to when the factual predicate for Owens' claims could have been discovered through the exercise of due diligence, and it so untrustworthy that it cannot support a finding that Owens exercised due diligence. Accordingly, Owens has failed to carry his burden under 28 U.S.C. § 2244(d)(1)(D), and his habeas claims are not timely under that statute.
Owens' theory that he exercised due diligence in discovering the factual predicate of his claims also fails because he did not follow up on Carson's testimony at the 2000 solicitation trial. As described above, in that testimony, Carson testified that after he spoke to Owens about Milton at the parole office, he (Carson) had no further communications with Owens relating to Milton. That testimony denying any additional meetings with Owens is directly contrary to — and amounts to a sworn recantation of — Carson's testimony from Owens' Underlying 1996 Trial that after he met Owens at the parole office, he attended the additional key meeting on Montana Street with Owens, Akemji, Antonio, and others. Likewise, as further described above, during the 2000 solicitation trial, Carson recanted other sworn testimony that he had given against Owens during the preliminary examination in that case. Thus, Owens had first-hand knowledge in 2000 that Carson had recanted a portion of his testimony from Owens' Underlying 1996 Trial and that Carson may be willing to recant other sworn testimony. Finally, during the 2000 solicitation trial, Carson testified that the investigating officers — the same officers involved in the charges at issue in Owens' Underlying 1996 Trial — had manipulated recordings of their interview with him in order to enhance the inculpatory value of his statements and may have urged him to testify falsely. Thus, Owens had knowledge of potential law enforcement misconduct as early as 2000.
Yet, there is no indication that Owens did anything to follow up on this testimony by Carson. He did not reach out to Carson in 2000 and did not contact Antonio at that time to learn whether Antonio was also willing to recant and/or had had a similar experience with law enforcement officers manipulating evidence. Nor is there any indication that Owens contacted an attorney in 2000 to explore obtaining relief based upon Carson's 2000 recanting testimony and identification of potential misconduct by law enforcement officers. Owens' failure to follow-up on Carson's 2000 testimony precludes a finding that he exercised due diligence in discovering the factual predicate of his claims.
Moreover, Owens has failed to persuade the Court that it would have been futile for him to seek cooperation from Carson and Antonio in or around 2000. Indeed, Owens' own witness — Carson — testified that he and Antonio jointly decided to recant some time during 2000 and that the obstacle to his (Carson's) recanting (being on parole) did not exist for eighteen months in the early 2000s. Likewise, in the Antonio Recanting Affidavit, Antonio did not say that he was ever hesitant to recant.
In the alternative, Owens argues that he is entitled to equitable tolling of the limitations period. A habeas petitioner is entitled to equitable tolling "if he shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner may also establish entitlement to equitable tolling if he can establish that he is actually innocent. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). The Court declines to equitably toll the limitations period on either of these bases.
First, for all of the reasons explained above, the Court concludes that Owens has failed to present reliable and credible evidence that he has been pursuing his rights diligently. As explained above, the evidence presented by Owens is not sufficiently trustworthy to support any findings as to what Owens has been doing with respect to the pursuit of his claims.
Second, Owens has not established his actual innocence. A claim of actual innocence must be supported with "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). A court presented with new evidence must consider it in light of "all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial." House v. Bell, 547 U.S. 518, 538 (2006) (internal citation and quotation marks omitted). "Based on this total record, the court must make `a probabilistic determination about what reasonable, properly instructed jurors would do.'" Id. (quoting Schlup, 513 U.S. at 329). This standard does not require absolute certainty about the petitioner's guilt or innocence:
House, 547 U.S. at 538.
Owens has not presented sufficiently reliable evidence to prevail on his actual innocence claim. As explained above, the actual innocence evidence from Owens and Carson is neither reliable nor trustworthy. And the remaining actual innocence evidence — the Antonio Recanting Affidavit — is not sufficient, standing alone, to establish Owens that Owens is actually innocent.
The Antonio Recanting Affidavit falls short of establishing Owens' actual innocence for several reasons. As an initial matter, recanting affidavits like this "are always viewed with `extreme suspicion.'" Williams v. Coyle, 260 F.3d 684, 708 (6th Cir. 2001) (quoting United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991)). Moreover, the record contains contradictory evidence concerning Antonio's willingness to recant. Carson testified that Antonio decided to recant in 2000 but could not do so at that time because he was in prison. (See 3/20/2019 Evid. Hrg. Tr., ECF No. 19, PageID.3408.) However, there is no indication that Antonio came forward to recant after he was released from prison and no explanation in the record for his failure to do so. Furthermore, Lawrence reports that when he (Lawrence) first approached Antonio about recanting in 2012, Antonio initially refused to do so. (See Lawrence 10/28/2018 Aff. at ¶¶ 7-9, ECF No. 12-3, PageID.3314.) That, too, is inconsistent with Carson's claim that Antonio had been willing to recant since 2000. Moreover, unlike Carson, Antonio did not say in the Antonio Recanting Affidavit that he was ever unwilling to recant. That omission seems inconsistent with Lawrence's report that Antonio was initially unwilling to recant. Finally, the account of how Antonio came to sign the Antonio Recanting Affidavit comes largely from Lawrence (see id. at ¶¶ 6-10, ECF No. 12-3, PageID 3314), and there is reason to doubt the reliability of Lawrence's recollections in this matter.
In order to appeal the Court's decision, Owens must obtain a certificate of appealability, which requires a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). To demonstrate this denial, Owens must show that reasonable jurists could debate whether the Petition should have been resolved in a different manner, or that the issues presented are adequate to deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. See Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate the Court's conclusion that Owens has failed to demonstrate entitlement to habeas relief because the Petition is barred by expiration of the statute of limitations. Reasonable jurists would also not debate that Owens has failed to demonstrate grounds for equitable tolling based on his claimed actual innocence. Therefore, a certificate of appealability is
For all of the reasons stated above, the Court (1)
