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Cole v. Tribley

United States District Court, Eastern District of Michigan, Southern Division

February 4, 2015

OTIS COLE, Petitioner,
v.
KEN TRIBLEY, Respondent.

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

I. Introduction

Petitioner Otis Cole (“Petitioner”) has filed a pro se application for a writ of habeas corpus under 28 U.S.C. § 2254. (See the “Petition, ” ECF #1.) The Petition challenges Petitioner’s 1993 state-court convictions for first-degree (felony) murder, see Mich. Comp. Laws § 750.316(1)(b), second-degree murder, see Mich. Comp. Laws § 750.317, and possession of a firearm during the commission of a felony (felony firearm), see Mich. Comp. Laws § 750.227b. The grounds for relief included in the Petition are: (1) trial counsel provided ineffective assistance when he failed to (a) request an evaluation for competency and criminal responsibility and (b) raise an insanity defense; and (2) Petitioner was denied a fair trial and effective assistance of counsel because he was required to wear visible shackles at trial and his attorney failed to object to the shackles. Respondent Ken Tribley (“Respondent”) argues that Petitioner’s claims are barred by the statute of limitations and in any event lack merit. (See ECF #12.) The Court agrees. Accordingly, Petition will be DENIED.

II. Background

Petitioner was tried in the Wayne County Circuit Court on two counts of first-degree murder and one count of felony firearm. The charges arose from a shooting at a drug house in Detroit, Michigan on September 17, 1992. The victims were fifteen-year-old Bernard Watson (“Watson”), who was a doorman at the house, and twenty-seven-year-old Gary Bechard (“Bechard”). The prosecutor’s theory was that Petitioner premeditated the murder of Bechard and killed Watson during a robbery.

The primary evidence against Petitioner came from his accomplice, Len Cameron (“Cameron”), and from Sergeant Deborah Monte (“Sergeant Monte”) who testified about Petitioner’s pretrial statement to her. In his statement to Sergeant Monte, Petitioner said that he, Cameron, and two other men had discussed going to the drug house to find a drug dealer nicknamed “Pimp” who had been shooting at people and talking about how he was going to kill everybody. Petitioner explained to Sergeant Monte that only he and Cameron actually went to the house and that he went along because the doorman (Watson) knew him and would admit him and Cameron into the house. Their plan was to wait for Pimp to arrive and then kill him.

Petitioner initially informed Sergeant Monte that he was armed with an AK .47 before he and Cameron went to the house, but that he handed the rifle to Cameron as soon as they entered the house. Petitioner then told Sergeant Monte that, once inside the house, Cameron pulled out a gun and told Watson to give him drugs and money. According to Petitioner’s statement, Cameron ordered Watson to get on the floor, and Cameron told another man in the house to lie on the couch. Petitioner then said that as he walked to the kitchen, he heard two gunshots and then noticed that both victims had been shot. Petitioner claimed that Cameron shot the victims with a .32 or .38 caliber revolver, and that he (Petitioner) had not fired a weapon.

Sergeant Monte testified that, after Petitioner concluded his statement, she asked him whether he had told the truth. Petitioner responded that most of his statement was true. Petitioner then admitted to Sergeant Monte that he had kept the rifle once he was inside the house and had fired one shot, but that he did not see where the shot went.

Cameron pleaded guilty to second-degree murder and felony firearm and testified against Petitioner. Cameron described the incident at the drug house differently than Petitioner had described it. Cameron testified that Petitioner entered the house first and that, as he (Cameron) walked up the steps to the house, he heard Petitioner say, “[l]ay down, lay down.” Cameron testified that he then heard one gunshot. Cameron said that he subsequently observed Petitioner turn around and shoot the man on the couch in the head with a .32 caliber handgun. Cameron further testified that when he entered the house, he saw Watson lying on the floor. Cameron then admitted to shooting the other man in the back with a rifle.

The medical examiner testified that both victims were shot one inch behind the right ear and that Bechard also was shot in the back. A firearms examiner testified that the .32 caliber spent bullets removed from the victims’ heads were fired from the same gun and that the spent .22 caliber bullet removed from Bechard’s back was fired by the rifle in evidence. The prosecutor maintained that Petitioner shot the two victims execution style with a .32 caliber revolver.

Petitioner did not testify or present any witnesses. Petitioner’s defense was that there was reasonable doubt as to who shot the victims and that Cameron’s testimony was not credible because he was an accomplice who was trying to protect himself.

On July 30, 1993, the jury found Petitioner guilty of felony firearm, first-degree (felony) murder in connection with Watson’s death, and second-degree murder in connection with Bechard’s death. On August 18, 1993, the trial court sentenced Petitioner to two years in prison for the felony firearm conviction, followed by life imprisonment for the murder convictions. The sentence for first-degree murder was mandatory life imprisonment without the possibility of parole, but the sentence for second-degree murder was a paroleable term of life imprisonment.

On direct appeal, Petitioner raised several claims about the trial court’s rulings, the jury instructions, the prosecutor’s rebuttal argument, and the sufficiency of the evidence. The Michigan Court of Appeals was unpersuaded by Petitioner’s arguments and affirmed his convictions in an unpublished, per curiam opinion. See People v. Cole, No. 185844, 1998 WL 1991898 (Mich. Ct. App. Mar. 27, 1998). On February 25, 1999, the Michigan Supreme Court denied leave to appeal. See People v. Cole, 459 Mich. 948; 616 N.W.2d 171 (1999) (table).

On June 2, 2010, more than ten years after his conviction, Petitioner filed a motion for relief from judgment in the state court which he raised the claims that now form the basis for the Petition. The trial judge denied Petitioner’s motion on the merits, and on December 8, 2011, the Michigan Court of Appeals denied leave to appeal because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Cole, No. 305161 (Mich. Ct. App. Dec. 8, 2011). On September 4, 2012, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Cole, 492 Mich. 865; 891 N.W.2d 868 (2012) (table). Finally, on October 12, 2012, Petitioner signed and dated the Petition, and on October 30, 2012, the Clerk of the Court filed the Petition.

III. The Statute of Limitations

A. 28 U.S.C. § 2244(d)

Respondent argues that the petition is barred from substantive review by the statute of limitations. Respondent is correct.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year period of limitation for state prisoners to file federal habeas corpus petitions. See Wall v. Kholi, 562 U.S. 545, 131 S.Ct. 1278, 1282-1283 (2011) (citing 28 U.S.C. § 2244(d)(1)). The period of limitations runs from the latest of the following four dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) 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)(A)-(D). “The limitation period is tolled, however, during the pendency of a ‘properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.’” Kholi, 131 S.Ct. at 1283 (quoting 28 U.S.C. § 2244(d)(2)).

Petitioner is not relying on a newly recognized constitutional right or on newly discovered facts, and he has not alleged that the State created an impediment to filing a timely habeas petition. Cf. 28 U.S.C. § 2244(d)(1)(B-D). Consequently, the statute of limitations began to run when Petitioner’s convictions “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). “Direct review” concludes for purposes of subsection 2244(d)(1)(A) when the availability of direct appeal to the state courts and to the United States Supreme Court has been exhausted. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). “Until that time, the ‘process of direct review’ has not ‘com[e] to an end’ and ‘a presumption of finality and legality’ cannot yet have ‘attache[d] to the conviction and sentence.’” Id. at 119-120 (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)) (alterations in Jimenez).

The text of § 2244(d)(1)(A), which marks finality as of “the conclusion of direct review or the expiration of the time for seeking such review, ” consists of two prongs. Each prong-the “conclusion of direct review” and the “expiration of the time for seeking such review”-relates to a distinct category of petitioners. For petitioners who pursue direct review all the way to [the Supreme] Court, the judgment becomes final at the “conclusion of direct review”-when [the Supreme] Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes ...

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