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Howard v. Brewer

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

March 1, 2017

BERNARD HOWARD, #243327, Petitioner,
v.
SHAWN BREWER, Respondent.

         OPINION & ORDER GRANTING RESPONDENT'S MOTION TO DISMISS, DENYING RELIEF ON POTENTIALLY-TIMELY CLAIM, DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING PETITIONER'S MOTION TO STAY PROCEEDINGS, DENYING A CERTIFICATE OF APPEALABILITY, & DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Michigan prisoner Bernard Howard (“petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in custody in violation of his constitutional rights. He was convicted of three counts of first-degree felony murder and one count of possession of firearm during the commission of a felony following a jury trial in the Recorder's Court for the City of Detroit (now part of the Wayne County Circuit Court) in 1995 and was sentenced to concurrent terms of life imprisonment without parole on the murder convictions and a consecutive term of two years imprisonment on the felony firearm conviction. The matter is before the Court on respondent's motion seeking dismissal of the petition as untimely under the one-year statute of limitations applicable to federal habeas actions, as well as Petitioner's subsequently filed motion to stay the proceedings. Having reviewed the matter, the Court concludes that the petition is untimely and must be dismissed for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d). Additionally, to the extent that one habeas claim may be timely, the Court concludes that the claim must nonetheless be dismissed for lack of merit. The Court further concludes a stay is unwarranted. Lastly, the Court concludes that a certificate of appealability and leave to proceed in forma pauperis on appeal should be denied.

         II. FACTS AND PROCEDURAL HISTORY

         Petitioner's convictions arise from his participation with co-defendants Kenneth McMullen and Ledon Salisbury in the robbery and shooting deaths of three people in Detroit, Michigan on July 16, 1994. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

Defendants' convictions stem from the July 16, 1994, robbery and shooting deaths of three individuals, Marcus Averitte, Reshay Winston, and John Thornton, each of whom died from multiple gunshot wounds. Testimony indicated that marijuana, cash, and other items of personal property were stolen from the victims. Witnesses at trial placed McMullen, Salisbury and a third unidentified individual at the scene of the crime near the time of the shootings. The police investigation produced evidence that the victims were shot with three different firearms. One witness heard a barrage of gunshots and then observed a van, which she later identified as belonging to codefendant Salisbury, pull away from the crime scene at a high rate of speed. A subsequent search of codefendant Salisbury's house led to the discovery and seizure of a Glock 9mm semi-automatic pistol that was later identified as one of the firearms used in the offense.
Shortly after the offense, the police obtained a written statement from defendant McMullen, wherein McMullen admitted assisting Howard and Salisbury in the commission of the offenses. However, McMullen claimed that it was Howard and Salisbury who shot the victims and McMullen denied either possessing a gun or shooting any of the victims himself. The police also obtained a written statement from defendant Howard, wherein Howard admitted assisting McMullen and Salisbury, but Howard denied possessing any gun himself and claimed that it was McMullen and Salisbury who shot the victims. Both statements were introduced at trial, but the jury was instructed that each statement was admissible only against the defendant who made the statement and could not be considered against the other defendant.
Following their arrests, McMullen, Howard and Salisbury were all placed in the Detroit Police Headquarters' jail where they allegedly met Joe Twilley, who was also an inmate at the jail, but had trustee status, thereby giving him the ability to move about the jail. Twilley claimed that McMullen and Salisbury both spoke to him about the charged offense and both told him that all three of them, McMullen, Howard and Salisbury, committed the offenses together and that all three of them were armed with guns and participated in shooting the victims. The statements by McMullen to Twilley and Salisbury to Twilley were both admitted at trial, not only against the defendant who made the statement, but also as substantive evidence against each of the other codefendants implicated in the statement.
McMullen and Howard both presented an alibi defense. Also, they each took the stand and denied any involvement in the offenses. Both admitted signing their respective police statements, but claimed they were coerced into doing so by the police, who, they claimed, fabricated the events described in the statements. McMullen and Howard both denied discussing the offense with Joe Twilley.

People v. Howard, No. 186972, 1997 WL 33354541, *1-2 (Mich. Ct. App. Jan. 17, 1997) (unpublished). At the close of the joint trial with one jury for petitioner and McMullen and a separate jury for Salisbury, petitioner's jury convicted him of three counts of first-degree felony murder, three counts of second-degree murder, three counts of armed robbery, and one count of felony firearm. The trial court vacated the second-degree murder convictions and sentenced petitioner to concurrent terms of life imprisonment without parole on the first-degree felony murder convictions, concurrent terms of life imprisonment on the armed robbery convictions, and a consecutive term of two years imprisonment on the felony firearm conviction.

         Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning the admission of the co-defendants' statements to fellow prisoner Joe Twilley, the admission of his own police statement, the denial of his request for a separate trial from both co-defendants or a separate jury from McMullen, the exclusion of certain testimony, and double jeopardy. The Michigan Court of Appeals vacated his armed robbery convictions and sentences on double jeopardy grounds, but denied relief on the other claims and affirmed his first-degree felony murder and felony firearm convictions and sentences. Id. at *2-6. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Howard, 456 Mich. 936, 575 N.W.2d 552 (Feb. 24, 1998).

         On September 6, 2013, petitioner filed a motion for relief from judgment with the state trial court asserting that: (1) he is entitled to a new trial based upon newly-discovered evidence, a July-August, 1998 letter (signed on April 2, 2001) and related November 28, 2012 affidavit from prisoner Jonathan Hewitt-El, which shows that Joe Twilley was a police informant who gave false testimony at trial and shows that he is actually innocent, (2) trial counsel was ineffective for failing to challenge the prosecution's case, for failing to show that petitioner's confession was false and move for dismissal, and for failing to contact an alibi witness, Tyiesha Washington (supported by a June 6, 2012 affidavit), (3) the prosecutor engaged in misconduct, (4) the prosecution presented insufficient evidence of guilt, and (5) appellate counsel was ineffective for failing to raise issues on appeal. The court denied the motion finding that petitioner raised the claim that Joe Twilley was a police informant on direct appeal and was denied relief thereby precluding further review, that affidavits from Jonathan Hewitt-El and Tyiesha Washington were not newly-discovered, were of doubtful credibility, and were not of such a nature as to render a different result on re-trial given the other evidence of guilt presented at trial, that petitioner failed to show that trial counsel or appellate counsel were ineffective, and that petitioner failed to establish good cause or actual prejudice under Michigan Court Rule 6.508(D)(3) for failing to raise his prosecutorial misconduct and insufficient evidence claims on direct appeal. People v. Howard, No. 94-08763-03 (Wayne Co. Cir. Ct. March 27, 2014). Petitioner filed a motion for reconsideration in which he attached a February 8, 1995 memo and related June 11, 2013 affidavit from former Wayne County Deputy Chief Assistant Prosecutor Robert Agacinski stating that certain defense attorneys had reported that certain prisoners, including Joe Twilley, were intentionally used as police informants and that Twilley's sentence was reduced due to his cooperation. The trial court denied reconsideration on June 2, 2014.

         Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied pursuant to Michigan Court Rule 6.508(D). People v. Howard, No. 322503 (Mich. Ct. App. Nov. 7, 2014). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Howard, 498 Mich. 871, 868 N.W.2d 901 (Sept. 9, 2015).

         Petitioner dated his federal habeas petition on September 29, 2015. He asserts the following claims as grounds for relief: (1) newly-discovered evidence of a Brady violation, (2) ineffective assistance of trial/appellate counsel for failure to investigate and present an alibi witness, (3) ineffective assistance of trial/appellate counsel for failure to file motion to dismiss (due to a false confession), and (4) insufficient evidence. Respondent seeks dismissal of the petition asserting that it is untimely. In reply, petitioner contends that the petition is timely and/or that he is entitled to equitable tolling of the one-year period. Petitioner also seeks to stay the proceedings asserting that he has newly-discovered evidence and that his petition contains exhausted and unexhausted claims.

         III. DISCUSSION

         A. ...


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