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Willson v. Perry

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

February 21, 2017

MARK ANTHONY WILLSON, Petitioner,
v.
MITCH PERRY, Respondent.

          OPINION AND ORDER GRANTING MOTION TO DISMISS [5], DISMISSING PETITION FOR WRIT OF HABEAS CORPUS [1], AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

          STEPHEN J. MURPHY, III United States District Judge

         State prisoner Mark Anthony Willson seeks habeas relief pursuant to 28 U.S.C. § 2254. He challenges his convictions on three counts of criminal sexual conduct ("CSC"). Before the Court is Respondent's motion to dismiss the petition as untimely filed. For the following reasons, the Court will grant the motion, and dismiss the petition.

         BACKGROUND

         Willson was charged with four counts of first-degree CSC and one count of third-degree CSC. The charges arose from allegations that Willson sexually abused his adopted stepdaughter for a period of years. Willson was tried before a jury in Bay County Circuit Court. The prosecutor dismissed one of the first-degree CSC counts during trial, and on September 26, 2008, the jury found Willson guilty of two counts of first-degree CSC, Mich. Comp. Laws § 750.520b(1)(b), and one count of third-degree CSC, Mich. Comp. Laws § 750.520d(1)(d). The jury acquitted Willson of the remaining first-degree CSC count. On December 1, 2008, the trial court sentenced Willson to concurrent prison terms of 18 years and nine months to 30 years for the first-degree CSC convictions, and 10 to 15 years for the third-degree CSC conviction.

         Willson appealed his convictions on several grounds: (1) that he was not provided sufficient notice of the charges against him, and the trial court denied his motions for a bill of particulars; (2) the prosecutor committed misconduct by arguing matters not supported by the evidence; and (3) additional issues regarding the scoring of the state sentencing guidelines. The Michigan Court of Appeals affirmed Willson's conviction and his sentence for third-degree CSC, but remanded his case for re-sentencing on the first-degree CSC convictions. See ECF No. 6-25. Willson raised the issues regarding notice of the charges and the prosecutor's conduct in an application for leave to appeal to the Michigan Supreme Court, and the Supreme Court denied the application on May 25, 2010. See ECF No. 6-26.

         At a re-sentencing hearing on May 10, 2010, the trial court imposed the same sentence of 18 years and nine months to 30 years for the first-degree CSC convictions. Willson appealed his new sentence. On August 17, 2011, while that appeal was pending, he filed a motion for relief from judgment in which he alleged that the prosecutor committed misconduct, the trial court committed an evidentiary error, and his appellate counsel was ineffective. These issues now constitute Willson's grounds for habeas relief.

         The Michigan Court of Appeals affirmed Willson's re-sentence, see ECF No. 6-27, and on April 23, 2012, the trial court dismissed Willson's motion for relief from judgment because the court thought Willson's appeal from his re-sentencing was still pending in the Michigan Supreme Court. See ECF No. 6-17. But that same day, the Michigan Supreme Court denied Willson application for leave to appeal his re-sentencing. See ECF No. 6-28.

         On May 3, 2012, Willson filed another motion for relief from judgment, raising the same three issues that he presented to the trial court in his first motion for relief from judgment. The trial court held a hearing on Willson's motion and denied it. See 8/23/12 Tr. 22-26, ECF No. 6-21; see also Am. Order, ECF No. 6-20. Willson appealed the trial court's decision, but the Michigan Court of Appeals denied leave to appeal "for failure to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." Order 1, ECF No. 6-29. On December 23, 2013, the Michigan Supreme Court denied Willson's application for leave to appeal for the same reason. See ECF No. 6-30.

         On January 7, 2014, Willson filed a pro se motion for judgment notwithstanding the verdict. See ECF No. 6-22. He argued that he was convicted of first-degree CSC on the incorrect assumption that the victim was his blood relative. On March 20, 2014, the trial court denied the motion after concluding that it was a successive motion for relief from judgment, and thus barred by Michigan Court Rule 6.502(G). See ECF No. 6-23. On April 7, 2014, the trial court denied reconsideration. See ECF No. 6-24.

         On March 17, 2015, Willson filed the instant habeas petition on the following grounds: (1) the prosecutor engaged in severe outcome-determinative misconduct during trial; (2) the trial court admitted improper opinion testimony, which impermissibly bolstered the complaining witness's credibility; and (3) his appellate counsel, on direct appeal, failed to raise critical issues and neglected to properly raise other issues that would have been outcome-determinative.

         DISCUSSION

         I. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year period of limitation for state prisoners to file a federal habeas corpus petition. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C. § 2244(d)(1)). The period runs from the latest of the following four dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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