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Wells v. Brewer

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

March 20, 2017

DANTE ERIC WELLS, Petitioner,
v.
SHAWN BREWER, Respondent.

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY

          HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

         I. Introduction

         Petitioner Dante Eric Wells, a state prisoner currently incarcerated at the Parnall Correctional Facility in Jackson, Michigan, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his conviction for armed robbery, Mich. Comp. Laws § 750.529. Respondent has filed a motion to dismiss, arguing that the petition should be denied because it is untimely. The Court finds the petition for a writ of habeas corpus is untimely and grants Respondent's motion. The Court grants Petitioner a certificate of appealability.

         II. Procedural Background

         Petitioner's conviction arises from a robbery at a Subway Restaurant in West Olive, Michigan, on July 28, 2016. Several witnesses testified that a man wearing a ski mask and a hood pulled over his head and carrying what appeared to be a handgun entered the restaurant sometime between 5:00 p.m. and 7:00 p.m. that day. He took money from an employee and from the cash register and then attempted to leave the restaurant. An employee struck the robber with a baton. The perpetrator was able to flee the restaurant through the back staff entrance. He drove away in a white Dodge pickup truck. A couple of Subway employees chased the vehicle, one threw a baton at it and the other kicked it. Approximately fifteen minutes later, police located a vehicle matching the description of the getaway vehicle in a gas station parking lot a little over a mile from the Subway Restaurant. The next day, a gas station employee contacted police because a bag containing a gun, a hooded sweatshirt, and a hat was found in one of the gas station's outside trash cans. The hooded sweatshirt yielded the only sample sufficient for a DNA profile. The DNA profile from the sweatshirt did not match Petitioner's DNA profile.

         A jail informant testified that Petitioner provided him with numerous details about the crime. Petitioner's ex-girlfriend testified that in July 2006, Petitioner drove a white pickup truck owned by someone named Jordan. Petitioner told her that someone had chased him while he was driving the truck and hit the truck with a stick. Jason Jordan testified that he lent Petitioner his mother's white pickup truck on July 28, 2006 at approximately 11:00 a.m. Petitioner told Jordan that he needed $500 by 5:00 p.m. Jordan went to Petitioner's home at approximately 11:30 p.m. that night. Neither Petitioner nor the truck were there. Jordan called Petitioner who said that something had happened with the truck, but he had wiped it clean, and told Jordan to report it as stolen.

         Following a jury trial in Ottawa County Circuit Court, Petitioner was found guilty of one count of armed robbery. On August 20, 2007, he sentenced to 10 to 50 years' imprisonment.

         Petitioner filed an appeal of right in the Michigan Court of Appeals, claiming that the trial court erred in denying a motion to suppress custodial statements, the trial court improperly denied motion for mistrial, Petitioner's sentence violates state and federal constitutions, and Petitioner should have been given credit for time served in jail. The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Wells, 280910, 2009 WL 454955 (Mich. Ct. App. Feb. 24, 2009). Petitioner attempted to file an application for leave to appeal in the Michigan Supreme Court, but on April 22, 2009, the Michigan Supreme Court rejected the application because it was not timely filed. See 7/11/16 Affidavit of Larry Royster, Clerk, Michigan Supreme Court, ECF No. 7-14.

         On December 2, 2009, Petitioner filed a motion for relief from judgment in the trial court, raising several claims of prosecutorial misconduct, insufficient evidence, and ineffective assistance of counsel. The trial court denied the motion. 1/13/10 Opinion and Order, ECF No. 7-12. The Michigan Court of Appeals denied Petitioner's application for leave to appeal. 11/24/10 Order, ECF No. 7-15. The Michigan Supreme Court also denied leave to appeal. People v. Wells, 489 Mich. 990 (Mich. July 25, 2011).

         In 2014, Petitioner filed a motion for DNA testing in the trial court. The exact date Petitioner filed this motion is not clear from the record before the Court. It was filed sometime between April 22, 2014 (when Petitioner states he received documents supporting his claim) and June 4, 2014, when the trial court denied the motion. For purposes of this habeas petition, the Court assumes Petitioner filed the motion on the earliest possible date, April 22, 2014. The trial court denied the motion on June 4, 2014, and denied reconsideration on June 18, 2014. ECF No. 7-17, Pg. ID 958, 961. Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, which was denied on April 8, 2015. 4/8/15 Order, ECF No. 7-17, Pg. ID 935. The Michigan Supreme Court denied leave to appeal on November 24, 2015. 11/24/15 Order, ECF No. 7-18, Pg. ID 965.

         Petitioner filed the pending habeas petition on May 9, 2016.

         III. Discussion

         Respondent argues that the petition is barred by the one-year statute of limitations. Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, applies to all habeas petitions filed after its effective date, April 24, 1996, and imposes a one-year limitations period for habeas petitions. See 28 U.S.C. § 2244(d)(1). A prisoner must file a federal habeas corpus petition within one year of the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(A) & (D). The time during which a prisoner seeks state-court collateral review of a conviction does not count toward the limitation period. 28 U.S.C. § 2244(d)(2); Ege v. Yukins, 485 F.3d 364, 371-72 (6th Cir. 2007). A properly filed application for state post-conviction relief, while tolling the limitation period, does not reset the limitation period at zero. Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).

         Petitioner appealed his conviction to the Michigan Court of Appeals, but not to the Michigan Supreme Court. Michigan Court Rule 7.305(C)(2) allows a defendant fifty-six days from the date of the Michigan Court of Appeals' decision to file an application for leave to appeal. Petitioner's application for leave to appeal to the Michigan Supreme Court was rejected because it was not timely filed. Thus, his conviction became final when the time for seeking such review expired, April 21, 2009. See Gonzalez v. Thaler, - U.S. -, 132 S.Ct. 641, 653-54 (2012). The one-year limitations period commenced the following day, on April 22, 2009, and continued to run until December 2, 2009, when Petitioner filed a motion for relief from judgment in the trial court. The motion for relief from judgment tolled the limitations period with 141 days remaining. See 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation....”). ...


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