United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER (1) GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT [dkt. 6], (2) DENYING PETITIONER’S MOTION FOR EQUITABLE TOLLING [dkt. 2], AND (3) DENYING A CERTIFICATE OF APPEALABILITY AND PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
Gerald E. Rosen Chief Judge
Thomas Reese, (“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 conviction of conspiracy to commit first-degree murder. Mich. Comp. Laws § 750.157a. As a result of his conviction, Petitioner received a sentence of life imprisonment. The petition raises five claims: (1) insufficient evidence was presented at trial to support Petitioner’s conviction, (2) members of the public were improperly excluded from the courtroom during trial, (3) defense counsel was ineffective for failing to object to the closure of the courtroom, (4) the trial court erroneously instructed the jury regarding the credibility of informant testimony, and (5) Petitioner has obtained new evidence proving his innocence.
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 motion for equitable tolling and a response to the motion asserting that he is entitled to review despite his untimely petition due to his illiteracy and because he is actually innocent. For the reasons set forth herein, the Court will grant the motion for summary judgment, deny the motion for equitable tolling, and dismiss 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 also deny Petitioner a certificate of appealability and permission to appeal in forma pauperis.
Petitioner’s conviction involves the December 16, 2003, shooting death of Derrick Golden in front of the Apex Bar in Detroit. The prosecutor’s theory at trial was that Petitioner ran a drug operation and that his co-defendant, Calvin Ware, was his enforcer. The victim sold drugs for Petitioner. Stephanie Sanders testified at trial that she knew Petitioner and had previously dated him. On the night of the shooting, she saw Ware shoot and kill Golden at the direction of Petitioner. Another witness testified that Petitioner sold drugs and that Ware was his enforcer.
Following his conviction and sentence, Petitioner filed an appeal of right with the Michigan Court of Appeals. On May 26, 2005, the Michigan Court of Appeals issued an unpublished opinion affirming Petitioner’s conviction. People v. Reese, No. 253400, 2005 WL 1249292 (Mich. Ct. App. May 26, 2005). Petitioner filed an application for leave to appeal in the Michigan Supreme Court. On January 30, 2006, the Michigan Supreme Court denied leave to appeal. People v. Reese, 708 N.W.2d 430 (Mich. 2006) (table).
On March 22, 2011, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion on October 3, 2011. Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. On November 30, 2012, the Michigan Court of Appeals denied the application. People v. Reeese, No. 309437 (Mich. Ct. App. Nov. 30, 2012). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, but it was denied on September 3, 2013. People v. Reese, 835 N.W.2d 580 (Mich. 2013) (table).
Petitioner signed and dated the present habeas petition on August 25, 2014, and it was filed in this Court on September 2, 2014.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute of limitations applies to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. The one-year limitations period runs from the latest of:
(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 ...