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Lewis v. Woods

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

December 2, 2016

MAURICE LEWIS, Petitioner,
v.
JEFFREY WOODS, Respondent.

         OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 6]; (2) DISMISSING WITH PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS; AND (3) DENYING PETITIONER A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE

         On March 18, 2016, Petitioner Maurice Lewis (“Petitioner”), a Michigan Department of Corrections prisoner, filed a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his no contest plea in the Circuit Court for Wayne County, Michigan, to two counts of assault with intent to commit murder and one count of commission of a felony with a firearm. The trial court sentenced Petitioner to 12 to 20 years for the assault convictions and a consecutive two years for the firearm offense. Petitioner raises two grounds in support of his request for habeas relief: (1) ineffective assistance of counsel when his attorney failed to advise him that by pleading no contest he was waiving his right to a trial, and (2) ineffective assistance of appellate counsel where his appellate attorney advised him to dismiss his direct appeal despite Petitioner's protestations of innocence.

         Respondent filed a motion to dismiss the habeas petition on August 29, 2016, arguing that Petitioner filed the petition beyond the applicable statute of limitations. (ECF No. 6.) Petitioner filed a response to the motion on October 12, 2016, asserting that he is entitled to equitable tolling because he is actually innocent. (ECF No. 9.) The Court is granting Respondent's motion and dismissing the petition with prejudice because Petitioner failed to comply with the applicable one-year limitations period set forth in 28 U.S.C. § 2244(d), and he fails to demonstrate entitlement to equitable tolling. The Court also is denying Petitioner a certificate of appealability and leave to proceed on appeal in forma pauperis.

         I. Background

         Petitioner's convictions arise from the shooting of Craig Brown and Katrease Grantham on the evening of August 25, 2007.

         At Petitioner's preliminary examination, Brown testified that he had bought a truck from Petitioner; however, Brown agreed to sell the truck back to Petitioner for $400 when Petitioner's wife told Brown it was her only means of transportation. (8/23/11 Tr. at 6-7, ECF No. 7-2 at Pg ID 134-35.) Petitioner's wife or her son had paid Brown $200 toward the purchase price. (Id. at 6-7, 28, ECF No. 7-2 at Pg ID 134-35, 156.) Petitioner agreed to pay the balance when he received his paycheck. (Id. at 8, ECF No. 7-2 at Pg ID 136.)

         On August 25, 2007, Petitioner and Brown were at a store and Petitioner gave Brown his cell phone to hold until the balance was paid. (Id.) At around six or seven o'clock that evening, Petitioner called Brown and instructed Brown to meet him at a particular location for the remaining payment. (Id. at 10-11, ECF No. 7-2 at Pg ID 138-39.) At the time, Brown was with his then-girlfriend, Grantham. (Id. at 11, ECF No. 7-2 at Pg ID 139.)

         At around 8:30 or 9:00 that evening, Brown and Grantham arrived at the location designated by Petitioner. (Id.) Petitioner already was there, sitting in the driver's seat of a two-door Ford Explorer. (Id. at 12, ECF No. 7-2 at Pg ID 140.) Petitioner blew the car horn and Brown and Grantham approached the Explorer. (Id.) Petitioner told Brown and Grantham to get in the car to go get Brown's money, and Petitioner exited the driver's seat to let them into the back seat. (Id. at 12-13, ECF No. 7-2 at Pg ID 140-41.) Someone named Ron was sitting in the front passenger seat of the Explorer. (Id. at 13, ECF No. 7-2 at Pg ID 141.)

         After Brown and Grantham were seated in the rear of the vehicle, Petitioner reached down, grabbed a gun from under the driver's seat, and began firing shots at Brown and Grantham. (Id. at 14, ECF No. 7-2 at Pg ID 142.) Ron jumped out of the car and ran. (Id. at 15, ECF No. 7-2 at Pg ID 143.) Petitioner then exited the Explorer and began to run down the street, with Petitioner following Brown and firing shots in Brown's direction. (Id. at 16-18, ECF No. 7-2 at Pg ID 144-46.) Petitioner eventually stopped pursuing Brown and Brown made it to his uncle's house, who transported Brown to the hospital. (Id. at 19, ECF No. 7-2 at Pg ID 147.) Brown was shot multiple times. (Id. at 21, ECF No. 7-2 at Pg ID 149.)

         Grantham also testified at the preliminary examination. She provided essentially the same description of the incident as Brown. (Id. at 43-47, ECF No. 7-2 at Pg ID 171-75.) Grantham further testified that when Brown got out of the Explorer and started running, with Petitioner chasing him, she jumped out of the vehicle and landed on the ground. (Id. at 48, ECF No. 7-2 at Pg ID 176.) Grantham could not feel her legs. (Id.) According to Grantham, after Petitioner stopped chasing Brown, he came back to where she was laying, demanded his cell phone, which was near her, pointed the gun at the back of her head, and pulled the trigger. (Id. at 48-49, ECF No. 7-2 at Pg ID 176-77.) The gun did not fire, but clicked. (Id.) Petitioner then fled the scene in the Explorer. (Id. at 49-50, ECF No. 7-2 at Pg ID 177-78.)

         Grantham was shot nine times. (Id. at 52, ECF No. 7-2 at Pg ID 180.) She was in a coma for two weeks following the incident and was left paralyzed from the waist down. (Id. at 51, ECF No. 7-2 at Pg ID 179.)

         On March 2, 2012, Petitioner pled no contest to two counts of assault with intent to commit murder and one count of felony firearm, with a sentencing agreement of twelve to twenty years' imprisonment for the assault convictions and a consecutive term of imprisonment of two years for the firearm charge. (3/2/12 Tr. at 5-7, ECF No. 7-8 at Pg ID 282-84.) On March 16, 2012, the trial court sentenced Petitioner under the terms of the plea agreement. (3/16/12 Tr., ECF No. 709.)

         Petitioner sought and received the appointment of appellate counsel. (See Register of Actions at 5, ECF No. 7-1 at Pg ID 122.) On August 1, 2012, however, Petitioner signed a stipulation allowing appellate counsel to withdraw and to discontinue direct appellate review. (Id.; see also ECF No. ...


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