United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, DISMISSING PETITION FOR HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
THOMAS L. LUDINGTON, District Judge.
On June 23, 2014, Petitioner Terrance Bailey, a Michigan Department of Corrections prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges his multiple convictions for criminal sexual conduct and kidnapping stemming from two sets of charges tried separately in the Wayne Circuit Court in 2007. As a result of his convictions, Petitioner is serving a controlling sentence of 40-to-60 years' imprisonment as well as lesser terms.
On December 22, 2014, Respondent filed a motion for summary judgment, contending that Bailey's petition was untimely. Bailey filed a response to the motion, claiming that he is entitled to equitable tolling because he is actually innocent. Bailey's petition will be dismissed because it does not comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d) and because he is not entitled to equitable tolling.
Bailey was charged in connection with the kidnapping and sexual assault of two young girls in Detroit. Both victims testified at separate trials that while they were on their way to school they were abducted by a man driving a white van. The man transported them to a house where he sexually assaulted them. Both victims' descriptions of the house and its contents were consistent.
At both trials, a third girl testified that a man driving a white van abducted her while she was waiting at a school bus stop. When the van stopped at a red light, she managed to escape and contact the police. Officers spotted a vehicle matching the van's description, and arrested Bailey. All three girls identified Bailey as their abductor at a police lineup. DNA tests performed on samples taken from the two victims proved inconclusive.
Following his convictions, Bailey filed consolidated direct appeals in the Michigan Court of Appeals. The court issued an unpublished opinion affirming the convictions. People v. Bailey, 2009 WL 1439112, at *1 (Mich. Ct. App. May 21, 2009). The court, however, reversed Bailey's sentence for one of his cases. Bailey was resentenced on July 2, 2009, but he did not further appeal that sentence.
On July 10, 2009, Bailey filed an application for leave to appeal in the Michigan Supreme Court. On October 26, 2009, the Michigan Supreme Court denied leave to appeal. People v. Bailey, 773 N.W.2d 674 (Mich. 2009).
Bailey filed a motion for relief from judgment in the trial court on March 7, 2011. The motion was denied on June 13, 2011. Bailey appealed, but on November 30, 2012, the Michigan Court of Appeals denied leave to appeal. People v. Bailey, No. 310664 (Mich. Ct. App. Nov. 30, 2012). Bailey applied for leave to appeal to the Michigan Supreme Court, but his application was denied on July 30, 2013, and reconsideration was denied on September 30, 2013. People v. Bailey, 843 N.W.2d 146 (Mich. 2013).
Bailey signed the present habeas petition on June 16, 2014, and Respondent concedes that this is the date it should be considered filed for statute of limitations purposes. See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999).
Respondent claims that Bailey's petitioner is untimely and should be dismissed. In response, Bailey claims that he is entitled to equitable tolling because he is actually innocent.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a one-year period of limitation for a habeas petition filed by a state prisoner seeking habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1). The limitation period is tolled while "a properly filed application for State ...