United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) GRANTING RESPONDENT'S
MOTION TO DISMISS [DKT. 5], (2) DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS, (3) GRANTING CERTIFICATE OF APPEALABILITY,
AND (4) GRANTING PERMISSION TO APPEAL IN FORMA
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Dinwiddie, (“Petitioner”), a Michigan Department
of Corrections prisoner serving a life sentence, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The petition challenges Petitioner's 1987
Recorder's Court for the City of Detroit jury trial
convictions of one count of first-degree murder, Mich. Comp.
Laws § 750.316, three counts of assault with intent to
commit murder, Mich. Comp. Laws § 750.83, and possession
of a firearm during the commission of a felony. Mich. Comp.
Laws § 750227b. As a result of these convictions,
Petitioner is serving a controlling sentence of life
imprisonment without possibility of parole. The petition
raises four claims: (1) Petitioner is entitled to a new trial
in light of new reliable evidence proving that he is actually
innocent, (2) Petitioner was denied the effective assistance
of trial counsel, (3) Petitioner's jury was erroneously
informed that two prosecution witnesses would be charged with
perjury if they did not testify truthfully, and (4) the
prosecutor committed misconduct by appealing to the religious
beliefs of the jurors.
matter is before the Court on Respondent's motion to
dismiss the petition as untimely filed. Petitioner has filed
a response to the motion asserting that the untimeliness of
his petition should be excused because he can demonstrate
that he is actually innocent. Petitioner supports his
contention with an affidavit from another prisoner who claims
that Petitioner was not with him when he committed the crime.
reasons stated below, the Court will grant Respondent's
motion and dismiss the case because Petitioner failed to
comply with the one-year limitations period under 28 U.S.C.
§2244(d), and Petitioner has failed to demonstrate
grounds for equitable tolling based on his claim of actual
innocence. The Court will, however, grant a certificate of
appealability and grant permission to proceed on appeal in
and his co-defendant, Samuel Green, were charged with crimes
related to an August 10, 1986, drive-by shooting occurring on
a Detroit residential street which resulted in the death of
an eight-year-old girl, Tanisha Baldwin. Three other children
who were playing in the house with the deceased victim
suffered non-fatal gunshot wounds.
evidence presented at trial indicated that two drug gangs,
one led by Charles Giles and the other by Gary Harris, were
involved in a territorial dispute. On the day of the shooting,
Darryl Bell, who was in Giles's gang, fired a shot at a
member of Harris's gang. Later that day, Giles called the
apartment of Pamela Foster, and spoke to her boyfriend,
Robert Thomas to ask him to gather a group of men to
Foster testified that after the call Thomas went into the
stairwell of her apartment building to gather gang members.
Petitioner accompanied Thomas back into her apartment from
the stairwell to retrieve weapons, and then Foster saw a
brown van pull in the front of the building. Several of the
men got into the van, but Foster could not identify which
ones did so. The van then drove away.
Hall testified that the van arrived at Giles's location
about half an hour after he called Thomas. Two men exited the
van with weapons in their hands. They were dressed with
hooded sweat suits, so Hall was unable to identify them. Hall
testified that Darryl Bell got into the van to give
directions to Harris's house. The van then drove away. As
it turned out, Bell was mistaken about the location of
Harris's house and directed the van to the house occupied
by the four children.
later a number of shots were fired at the house and struck
the young victims, killing one and injuring three others.
Bell testified under a grant of immunity that Petitioner was
among the men in the van, and he was armed with a long gun.
Bell also testified that Petitioner got out of the van and
was one of the men who fired shots at the house. Bell
testified that he fired a single shot at the house.
testified that she saw the van return to her apartment
building. Thomas and Petitioner were the only men who Foster
identified as coming back into her apartment with guns.
Foster testified that Thomas gave Petitioner clothes that he
had on, including a hooded sweatshirt. Foster asked Thomas
why he did this, and Thomas explained that Petitioner was
going to “take the rap” for being caught with
some cocaine. Thomas instructed Foster to get together some
clothes because they were leaving immediately for Atlanta.
after the shooting, police officers received an anonymous tip
and arrested Bell. Bell made statements to the police under a
grant of immunity. He led police officer's to
Foster's apartment. Police searched the apartment on
August 13th, where they found Petitioner and his co-defendant
Green present with the weapons that were used in the
shooting. A police officer testified that he questioned
Petitioner on August 14th about the shooting. Petitioner said
that he did not know anything about the incident other than
what he heard on the news.
on this evidence, Petitioner was convicted of the offenses
indicated above, and he was sentenced to a non-parolable life
term as well as lesser terms.
filed an appeal of right with the Michigan Court of Appeals.
On September 7, 1989, the Michigan Court of Appeals issued an
unpublished opinion affirming his convictions. People v.
Dinwiddie, No. 105190 (Mich. Ct. App. Sept. 7, 1989).
Petitioner filed an application for leave to appeal in the
Michigan Supreme Court. The Michigan Supreme Court denied ...