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Linsdey v. Thomas

United States District Court, E.D. Michigan, Southern Division

February 12, 2015

VICTOR LINSDEY, II, Petitioner,
v.
J.E. THOMAS, Respondent.

OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT [dkt. 17], (2) DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, AND (3) GRANTING A CERTIFICATE OF APPEALABILITY AND PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL

ARTHUR J. TARNOW, Senior District Judge.

Victor Lindsey, ("Petitioner"), a Michigan Department of Corrections prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges his 2003 Wayne Circuit Court convictions of first-degree murder, MICH. COMP. LAWS § 750.316, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and commission of a felony with a firearm, MICH. COMP. LAWS § 750.227b. As a result of these convictions, Petitioner received a controlling sentence of life imprisonment.

The petition raises four claims: (1) Petitioner's trial counsel was ineffective for failing to challenge the sufficiency of the evidence; (2) trial counsel was ineffective for failing to present an alibi defense; (3) the prosecutor used conflicting theories of guilt at Petitioner and his co-defendant's trials; (4) Petitioner's sentence was improperly based on an "enhanced" charge.

This matter is before the Court on Respondent's motion for summary judgment, in which he asks the Court to dismiss the petition as untimely. Petitioner filed a response to the motion asserting that his claims are based on new evidence and that he is actually innocent. For the reasons set forth herein, the Court agrees with Respondent and dismisses the petition for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d). The Court will, however, grant a certificate of appealability and permission to appeal in forma pauperis.

I. Background

The evidence presented at Petitioner's trial indicated that on April 14, 2001, five men were riding around Detroit in two cars with the intent to engage in a series of home invasions targeting Arab-Americans. The five men included Apardo Woodward, DeAngelo Brooks, Dave McQueen, Miguel Harris, and Petitioner.

According to Woodward's testimony, Petitioner and Brooks began arguing because Brooks wanted to back-out of the scheme. Woodward explained that he and Brooks were in a car following the other three men who were in a separate car. The two cars parked at a dead end. Petitioner approached Woodward's car and told Woodward to go talk with McQueen. Woodward then heard shots coming from his car, where Petitioner and Brooks were located. The next trial day, Woodward recanted his testimony. A police officer testified that during the intervening night Woodward had been mistakenly placed in a cell with Harris.

Evidence indicated that Brooks' body-which had eighteen gunshot wounds-was discovered lying on a street within an area associated with a street gang known as the "Gucci Boys."

Further evidence indicated that Harris gave a statement to police that Petitioner believed Brooks had snitched on a man named Orlando Fountain in connection with an armed robbery. Harris told police that he heard Petitioner tell McQueen that he was about to kill Brooks shortly before the shooting. Harris said that Petitioner suggested that they dump Brooks' body in an area controlled by the "Gucci Boys." Harris then followed Petitioner to the Ambassador Bridge and assisted burning the car in which Brooks was killed. At trial, Harris testified that his statement was not true. In rebuttal, a police officer testified that Harris was told that if he testified against Petitioner, his brother would be killed.

Brooks' brother testified that Harris told him that the shooting occurred after Petitioner got in an argument with Brooks, and that Harris took him to the place where they burnt the car. Brooks' brother went to the police with this information. Later a burnt car was found at the location.

Petitioner was subsequently convicted of the offenses indicated above.

In July of 2003, Petitioner filed an appeal of right with the Michigan Court of Appeals. On January 13, 2005, the Michigan Court of Appeals issued an unpublished memorandum opinion affirming Petitioner's convictions. People v. Lindsey, No. 250145 (Mich. Ct. App. Jan. 13, 2005). Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. On July 26, 2005, the Michigan Supreme Court denied Petitioner's application. People v. Lindsey, 699 N.W.2d 702 (Mich. 2005) (table).

Approximately eight years later, on May 14, 2013, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied this motion on January 21, 2014. Petitioner has a year to appeal this decision to the Michigan Court of Appeals. Mich. Ct. R. 7.205(F). The state court record filed with the Court does not indicate whether such an appeal was taken, but the fact is irrelevant to the statute of limitations analysis.

Petitioner originally filed this habeas petition in the United States District Court for the Middle District of Pennsylvania on January 24, 2014. That court ordered the case ...


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