United States District Court, E.D. Michigan, Northern Division
ORDER TRANSFERRING THE HABEAS CORPUS PETITION TO THE
COURT OF APPEALS AS A SECOND OR SUCCESSIVE PETITION AND
DENYING AS MOOT PETITIONER'S MOTION FOR RELEASE FROM
CUSTODY AND HIS MOTION TO EXPEDITE REVIEW OF HIS CLAIM OF
L. Ludington United States District Judge
Olen Damon Womble, III, has filed a pro se habeas
corpus petition challenging his state convictions for
first-degree criminal sexual conduct and kidnapping.
Petitioner is serving a sentence of twenty-five to fifty
years in prison for the criminal sexual conduct and twenty to
forty years in prison for the kidnapping. He asserts that his
trial and appellate attorneys were ineffective, that he was
denied his right to an impartial jury, and that the trial
court deprived him of his right to present a defense.
Petitioner also claims to possess newly discovered evidence
demonstrating that he is actually innocent of the crimes for
which he was convicted. Because Petitioner challenged the
same convictions in a previous petition that was denied on
the merits, the Court will transfer the current petition to
the Court of Appeals for a determination of whether this
Court may adjudicate Petitioner's claims.
habeas petition and exhibits indicate that, in 1992,
Petitioner was convicted of two counts of criminal sexual
conduct in the first-degree and one count of kidnapping. The
state trial court sentenced Petitioner to concurrent terms of
twenty-five to fifty years in prison for the criminal sexual
conduct and twenty to forty years for the kidnapping.
appeal from his convictions, Petitioner argued that: (1) he
was denied due process and his right to present a defense by
the trial court's ruling that the prosecutor could
introduce evidence of Petitioner's prior “bad
acts” if the defense raised the issue of consent; (2)
there was insufficient evidence to support the kidnapping
conviction; and (3) the trial court erred when instructing
the jury. The Michigan Court of Appeals rejected these claims
and affirmed Petitioner's convictions. See People v.
Womble, No. 161092 (Mich. Ct. App. July 18, 1995). On
May 31, 1996, the Michigan Supreme Court denied leave to
appeal. See People v. Womble, 550 N.W.2d 532 (Mich.
1997, Petitioner filed a motion for relief from judgment in
which he alleged that: (1) his trial attorney was ineffective
for failing to challenge the impanelment of a biased juror;
(2) appellate counsel was ineffective for failing to assert
that trial counsel was ineffective; and (3) the trial court
erred when calculating the sentencing guidelines. The trial
court found no merit in Petitioner's claims and denied
his motion. The Michigan Court of Appeals denied leave to
appeal the trial court's decision, and on December 28,
1999, the Michigan Supreme Court denied leave to appeal
because Petitioner filed to establish entitlement to relief
under Michigan Court Rule 6.508(D). See People v.
Womble, 606 N.W.2d 656 (Mich. 1999) (table).
December of 2000, Petitioner filed his first habeas corpus
petition. He argued that: (1) appellate counsel was
ineffective for filing Petitioner's post-conviction
motion one year after the state supreme court denied leave to
appeal on direct review; (2) the trial court deprived him of
his right to present a defense when it ruled that the
prosecution could admit prejudicial evidence on rebuttal; and
(3) trial counsel was ineffective for failing to remove the
juror who informed the trial court of her inability to be
fair. United States District Judge Denise Page Hood summarily
dismissed the petition because Petitioner had failed to
comply with the statute of limitations. See Womble v.
Berghuis, No. 00-75601 (E.D. Mich. Mar. 27, 2001).
Petitioner appealed Judge Hood's decision, but the United
States Court of Appeals for the Sixth Circuit dismissed his
appeal for lack of jurisdiction. See Womble v.
Berghuis, No. 02-1320 (6th Cir. May 9, 2002).
October 19, 2016, Petitioner filed his current petition for
the writ of habeas corpus. The first few pages of the
petition mention Petitioner's unrelated convictions for
armed robbery, kidnapping, second-degree criminal sexual
conduct, assault with intent to commit sexual penetration,
and felony firearm. In the sections outlining the procedural
history and overview of the case, however, Petitioner refers
to his Wayne County convictions for two counts of criminal
sexual conduct and one count of kidnapping involving a victim
with the last name of Gordon. Petitioner's many exhibits
also indicate that the convictions being challenged here are
the convictions for two counts of first-degree criminal
sexual conduct and one count of kidnapping resulting from an
incident that occurred on February 27, 1992.
alleges as grounds for relief that: (1) he was deprived of
his right to effective assistance of counsel by (a)
counsel's failure to conduct an adequate pretrial
advice to waive certain witnesses, and (c) counsel's
failure to present a defense; (2) he was deprived of his
right to trial by an impartial jury because a juror
repeatedly informed the trial court that she would not be
able to render a fair verdict, and trial counsel was
ineffective for failing to challenge the juror for cause or
excuse her with a peremptory challenge; and (3) he was
deprived of his right to present a defense when the trial
court ruled that highly prejudicial “bad acts”
evidence could be admitted on rebuttal. Petitioner also
contends that his appellate attorney was ineffective, and he
claims to have newly discovered evidence, including police
reports and other documents, demonstrating that he is
actually innocent of the crimes for which he is incarcerated.
motion for release from custody on his own recognizance,
Petitioner claims to have a compelling and credible claim of
actual innocence. He also alleges that he has served
twenty-four years of his minimum sentence, that he could be
released on parole soon, and that he has asserted substantial
claims of law.
in his motion to expedite review of his case, Petitioner
asserts that he will not be considered for sexual-offender
therapy, which he needs to be released on parole, if he
continues to pursue a claim of actual innocence in this
Court. Consequently, Petitioner seeks to have the Court
expedite review of his claim of actual innocence and his
motion for release from custody. In the alternative,
Petitioner seeks a dismissal of his claims without prejudice.
noted above, this is Petitioner's second habeas corpus
action. The United States Court of Appeals for the ...