United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS
DENISE PAGE HOOD, District Judge.
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of first-degree premeditated murder, MICH. COMP. LAWS § 750.316, four counts of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, carrying a firearm with unlawful intent, MICH. COMP. LAWS § 750.226, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. Petitioner was sentenced to mandatory life imprisonment for the murder conviction, and to prison terms of 23-to-40 years for each of the four assault with intent to murder convictions, 3-to-5 years for the felon in possession of a firearm conviction, 3-to-5 years for the carrying a firearm conviction, and two years for the felony-firearm conviction.
The petition alleges that: 1) insufficient evidence was presented at trial to sustain Petitioner's convictions; 2) the prosecutor failed to produce a witness at trial; 3) the trial court erroneously allowed the dismissal of an African-American juror; 4) Petitioner was denied the effective assistance of trial counsel; 5) Petitioner was denied the effective assistance of appellate counsel; 6) the prosecutor committed misconduct; and 7) the trial court erroneously denied Petitioner's motion for relief from judgment.
Respondent filed an answer to the petition, asserting in part that the petition was filed after the expiration of the one-year statute of limitations applicable to habeas actions under 28 U.S.C. § 224(d). Petitioner has not filed a reply. The Court concludes that the petition must be dismissed because it was untimely filed, and Petitioner has not demonstrated entitlement to equitable tolling. The Court will also deny Petitioner a certificate of appealability and deny permission to appeal in forma pauperis.
Petitioner's convictions result from the shooting of five men who were sitting in a van. One of the men died. The prosecutor's theory was that Petitioner shot at the van because of an earlier confrontation at a residence between the individuals involved. The shooting was witnessed by several bystanders who identified Petitioner as the shooter. One such person testified that she had dated Petitioner and knew him for about ten years. She testified that she was standing a few feet away from the van when she saw Petitioner shooting at it. Petitioner presented another set of witnesses who testified that either they did not see Petitioner with a gun or he was at another location at the time of the shooting. The jury apparently chose to believe the prosecution's witnesses and found him guilty.
Following his convictions and sentencing, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claims:
I. Defendant is entitled to a fair trial where there was insufficient evidence to find for the offense of first-degree murder.
II. Defendant's conviction and sentence for assault with intent to murder as to Mr. Hubbard should be vacated because his due process rights were violated where Mr. Hubbard failed to appear for trial.
III. The evidence is insufficient to sustain Defendant's conviction of first-degree murder and assault with intent to murder; alternatively, the verdict is against the great weight of the evidence; it would be a denial of due process and a miscarriage of justice to allow Defendant's conviction to stand.
IV. The prosecutor denied Defendant a fair trial by failing to exercise due diligence to produce a crucial, endorsed witness; the trial court failed to conduct a due diligence hearing; and defense counsel was ineffective for failing to request hearing or dismissal of the case, and failing to object to the omission of the missing witness instruction.
V. Defendant is entitled to a new trial where the trial court abused its discretion on several occasions during the course of the proceeding; where impermissible racial prejudice was used to an alternate juror; allowing an alternate juror to start anew after he was instructed to; and foreclosing the rereading of testimony to alternate juror.
The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished decision. People v. Betts, No. 282399, 2009 WL 1099987 (Mich. Ct. App. April 23, 2009). Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, presenting the same claims. The Michigan Supreme Court denied the application on October 26, 2009. People v. Betts, 773 N.W.2d 692 (Mich. 2009).
On October 12, 2010, Petitioner filed a motion for relief from judgment in the trial court, and then a supplemental ...