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Duby v. Winn

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

October 4, 2016

RICHARD E. DUBY, JR., Petitioner,
v.
THOMAS WINN, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner Richard Duby, Jr. was convicted in Gladwin County Circuit Court by a jury of three counts of first-degree criminal sexual conduct, one count of second-degree criminal sexual conduct, one count of second-degree child abuse, and one count of accosting a child for immoral purposes. He was sentenced to a string of concurrent sentences, the longest of which is 30 to 60 years.

         The petition raises two claims: (1) whether Petitioner was denied his appeal of right when a corrections officer failed to file a notice for him, and (2) whether the trial court's determination that Petitioner waived his right to appeal was based on an unreasonable determination of the facts. For the reasons that follow, the petition will be denied for lack of merit.

         II. Background

         The facts relevant to Petitioner's claims as gleaned from the record follow.

         Petitioner was sentenced on August 24, 2011. At the conclusion of the sentencing hearing, he was given a “Notice of Right to Appellate Review and Request for Appointment of Attorney” form. The form states: “A request for the appointment of an attorney must be made in writing and sent directly to the court at the address noted above within 42 days.” See Mich. Ct. R. 7.204(A)(2). In Petitioner's case, the time for requesting appointment of counsel for filing a direct appeal was October 5, 2011, 42 days after August 24, 2011.

         The state court record contains a signed copy of this form bearing a date of August 29, 2011. The form also includes an affidavit bearing a notarization by Susan Walker, Notary Public, dated September 1, 2011. However, as will be explained, the trial court concluded that the form was not filed until after expiration of the 42-day period. The trial court found that Petitioner filed a notice of appeal when he sent a letter to the trial court dated October 25, 2011 in which he requested information on how to proceed with an appeal.

         Petitioner, through counsel, filed a motion in the trial court to reissue the judgment of sentence to reset the appellate deadline. As grounds for extending the deadline, Petitioner said that he attempted to file a timely appeal, but a corrections officer failed to file the paperwork, and a court clerk later turned Petitioner's mother away when she attempted to file the appeal.

         On October 8, 2012, the trial court held an evidentiary hearing on the motion. Kathie Duby, Petitioner's mother, testified that several weeks after her son's sentencing she found a signed copy of the appeal form among Petitioner's belongings that a friend picked-up from the Gladwin County Jail. Duby further testified that she took the appellate form to the courthouse, but she was told that it was too late to file. Duby did not remember the date she went to the courthouse.

         Petitioner testified that he intended to appeal his conviction after he was sentenced. He further testified that when he got back to the jail after sentencing, he read the forms, signed them, and handed them to a corrections officer named Powell. Petitioner testified that Powell brought the forms back to him and he told Petitioner that they needed to be notarized and that the notary would be available the next day. Petitioner testified that he obtained the notary's signature the next day and he asked a corrections officer named Grant to make copies. Petitioner testified that he “assumed” someone from the jail was also going to file the original form with clerk's office. Petitioner did not testify that he instructed Grant to file the appellate papers.

         Petitioner also testified that when he was transferred to the Michigan Department of Corrections, he was told that he should confirm that his appeal had been filed. He then called his mother and told her to take a copy of the form to the clerk's office and verify that it had been filed. Petitioner later learned from his mother that his appellate form would not be accepted for filing because it was late. As a result, Petitioner wrote a letter to the trial court, dated October 25, 2011, asking how he could initiate his appeal, and attaching copies of the previously signed forms.

         Matthew McGourty, a jail administrator with the Gladwin County Sheriff's Department, testified that he was familiar with Petitioner. McGourty testified that in accordance with Petitioner's request, his appeal paperwork was released to a person named Chad Auxier on September 8, 2011. McGourty also testified that deputies were prohibited from filing court documents on behalf of prisoners. He testified that appeal papers from prisoners are delivered to the courts using the jail's kite system, and inmates are made aware of the kite system.

         Gladwin County Clerk Laura Brandon-Maveal testified that it is her office's policy to accept all documents for filing, and that it was not part of her job or that of her staff to check whether filings were timely. The office will file such documents and leave it to the court to determine whether they were timely filed. Brandon-Maveal testified that a woman did approach the office with a filing in Petitioner's case, but then left without submitting it when they were told it lacked a ...


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