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Lardie v. Birkett

February 19, 2008

JASH LARDIE, #255916, PETITIONER,
v.
THOMAS BIRKETT, RESPONDENT.



The opinion of the court was delivered by: Honorable Bernard A. Friedman

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

Petitioner Jash E. Lardie, has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 1996 convictions for three counts of OUIL causing death which were imposed following a jury trial in the Grand Traverse County Circuit Court. Petitioner was ultimately sentenced to six to 15 years imprisonment. Petitioner previously filed a habeas petition in federal court challenging the same convictions, which was dismissed for failure to comply with the one-year statute of limitations applicable to habeas actions. See Lardie v. Birkett, No. 01-CV-40339 (E.D. Mich. Sept. 20, 2002). Accordingly, this Court initially transferred this case to the United States Court of Appeals for the Sixth Circuit for a determination as to whether Petitioner could file a second petition challenging his convictions. The Sixth Circuit granted Petitioner permission to proceed on a second petition, but only as to his actual innocence claim. See In re Jash Lardie, No. 06-1168 (6th Cir. Sept. 29, 2006).

In his habeas petition and in accordance with the Sixth Circuit's remand order, Petitioner raises the following claim:

Petitioner asserts that he is "actually innocent" of the three counts of OUIL causing death that he is presently incarcerated for in violation of his due process rights of the 5th, 6th, and 14th Amendments of the United States [Constitution] and that there is newly-discovered evidence that proves it.

Respondent has filed an answer to the petition asserting that the actual innocence claim does not provide a basis for habeas relief and that the claim lacks merit. Petitioner has filed reply to that answer. For the reasons stated herein, the Court denies the petition for writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed on appeal in forma pauperis.

II. Relevant Facts

Petitioner's convictions arise from a drunk driving accident in which three teenagers were killed in Grand Traverse County, Michigan on May 23, 1993. In one opinion involving this case, the Michigan Supreme Court summarized the incident as follows:

On May 22, 1993, defendant Lardie drank alcohol and smoked marijuana at a party at his parents' home. Defendant was seventeen years old. He left his home at approximately 1:50 a.m. to give several people from the party a ride to one of their cars. From the physical evidence, defendant apparently drove the car off the paved road and traveled about 130 feet on the shoulder. The car hit a small tree and then, traveling another sixty or seventy feet, struck a larger one, killing the three passengers in the back seat, Jason Stutesman, Kendra Tiernan, and Erinn Tompkins. Lardie had an estimated blood-alcohol level of 0.12 percent or greater at the time of the accident and tested positive for marijuana use. The medical expert testified that taking these two substances together creates a "synergistic type impairment," multiplying the impairment rather than just adding to what each would cause alone.

People v. Lardie, 452 Mich. 231, 234, 551 N.W.2d 656 (1996) (footnote omitted).

III. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254(d) (1996). "A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court find a state court's application of [Supreme Court] ...


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