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Wilson v. Bergh

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

June 30, 2015

DAVID BERGH, Respondent.


LINDA V. PARKER, District Judge.

Devaughn Michael Wilson ("Petitioner"), a Michigan Department of Corrections prisoner, with the assistance of counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges two convictions from the Circuit Court for Oakland County, Michigan: assault with intent to commit murder, Mich. Comp. Laws § 750.83, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227(b). Petitioner asserts he was denied the effective assistance of counsel when his trial attorney failed to present two witnesses at trial.

This matter is before the Court on Respondent's motion for summary judgment, in which he argues that the petition is time-barred pursuant to the Antiterrorism and Effective Death Penalty Act's (AEDPA) statute of limitations, 28 U.S.C. § 2244(d)(1). Petitioner filed a response to the motion asserting that the untimeliness of his petition should be excused because he is actually innocent. For the reasons that follow, the Court is granting Respondent's motion because the petition was untimely filed, and Petitioner fails to demonstrate that he is actually innocent.

I. Background

This case involves a shooting on a residential street in Pontiac, Michigan, on the evening of June 11, 2005. At trial, the evidence showed that Petitioner and three other men were gathered in front of Petitioner's house. When a Monte Carlo drove by, words were exchanged between the occupants of the car and the group of men standing in front of Petitioner's house.

The Monte Carlo stopped in the middle of the street approximately 280 feet from Petitioner's house, near the residence of Mary Jackson. Jackson was working in the yard with her son, Levoy Garner. Jackson and Garner testified that the men standing in front of Petitioner's house stepped into the street and then shots were fired in the direction of the Monte Carlo, which then drove away. (10/18/05 Trial Tr. at 184-86, ECF 6-5; 10/21/05 Trial Tr. at 18, ECF 6-7.) Two stray bullets hit Isis Martin in the head, who was sitting on her front porch across the street from Jackson.

Jackson identified Petitioner as the individual who fired a handgun towards the Monte Carlo. (10/18/05 Trial Tr. at 193, ECF 6-5.) According to Jackson, Petitioner stood out from the rest of the group because he was wearing a black or dark-colored shirt and the other men were wearing white shirts. ( Id. at 193.) Jackson testified that a few hours before the shooting, she drove past Petitioner's house on her way home and noticed that he was wearing a black shirt and black pants. ( Id. at 179.)

Neither Martin nor Garner could identify the shooter, but both testified that the individual was wearing dark-colored clothing. (10/20/05 Trial Tr. at 19, 39, ECF 6-6; 10/21/05 Trial Tr. at 9, 21, ECF 6-7.) In addition, Officer Casey Crampton with the Pontiac Police Department testified that he responded to the dispatch call, and that when he arrived on Fisher Street he was flagged down by an individual who described the shooter as wearing a black shirt. (10/20/05 Trial Tr. at 101, ECF 6-6.) Another testifying witness, Cal Clark, did not see who fired the shots. (10/21/05 Trial 56, ECF No. 6-7.)

Deputy Robert Charlton, a crime scene investigator and firearm tool mark examiner with the Oakland County Sheriff's Office, testified that five bullet casings were collected from the scene and tested. (10/20/05 Trial Tr. at 122-23, ECF 6-6.) Charlton, as an expert, concluded that all of the casings were fired from the same.25 caliber semi-automatic handgun. ( Id. )

Justin Jones, the Petitioner's only witness at trial, was eleven years old at the time of the shooting. Jones testified that there were two shooters among the group of men outside Petitioner's house: one with a "big gun, " and one with a "little gun." ( Id. at 122.) Jones also recalled hearing only three gunshots. ( Id. at 7-8.)

The jury found Petitioner guilty as charged. (10/24/05 Trial Tr., ECF 6-8.)

In March 2006, Petitioner filed an appeal of right. On May 1, 2007, the Michigan Court of Appeals issued an unpublished opinion affirming Petitioner's convictions. People v. Wilson, No. 269033, 2007 WL 1263988 (Mich. Ct. App. May 1, 2007). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, which the Court denied on September 10, 2007. People v. Wilson, 737 N.W.2d 745 (Mich. 2007).

On July 29, 2010, Petitioner filed a pro se motion for relief from judgment in the trial court, attaching an affidavit from Jackson in which she recanted her trial testimony. Jackson claimed that she only identified Petitioner as the shooter because officers had told her that he had confessed. The trial court appointed counsel for Petitioner, and an evidentiary hearing was held. Contrary to her trial testimony, Jackson testified at the hearing that she did not see who ...

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