United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS AND DENYING CERTIFICATE OF APPEALABILITY
JOHN CORBETT O'MEARA UNITED STATES DISTRICT JUDGE.
Everett Dyson, a Michigan state prisoner, filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. He
challenges his conviction for second-degree murder, Mich.
Comp. Laws § 750.317. 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 denies Petitioner a certificate of appealability.
a jury trial in Recorder's Court for the City of Detroit,
Petitioner was convicted of second-degree murder in the
shooting death of Kevin Dubose. On October 30, 1990, he was
sentenced to a parolable life sentence.
filed an appeal of right in the Michigan Court of Appeals,
arguing that the trial court erred in admitting the
decedent's statements as dying declarations, the jury
should not have been instructed on first-degree murder, and
the sentence was disproportionate. The Michigan Court of
Appeals affirmed Petitioner's conviction and sentence.
People v. Dyson, No. 135802 (Mich. Ct. App. Aug. 8,
1994). Petitioner moved for rehearing, raising additional
claims that his trial attorney was ineffective, the verdict
was against the great weight of the evidence, and his
appellate attorney was ineffective. The Michigan Court of
Appeals denied rehearing. People v. Dyson, No.
135802 (Mich. Ct. App. Dec. 7, 1994). The Michigan Supreme
Court denied Petitioner's application for leave to
appeal. People v. Dyson, 450 Mich. 875 (Mich. 1995).
January 9, 1997, Petitioner filed a petition for writ of
habeas corpus in this Court. The Court dismissed the petition
without prejudice for failure to exhaust state court
remedies. Dyson v. Elo, No. 2:97-cv-70107 (E.D.
Mich. Nov. 26, 1997).
March 6, 1998, Petitioner filed a motion for relief from
judgment in the trial court. The trial court denied the
motion. 1/29/1999 Order, ECF No. 6-7, Pg. ID 214. In February
1999, Petitioner filed a timely motion for reconsideration.
The trial court did not address the motion until July 25,
2014, when it issued an order denying the motion for
reconsideration. 7/25/2014 Order, ECF No. 2, Pg. ID 117. The
Michigan Court of Appeals denied Petitioner's delayed
application for leave to appeal. People v. Dyson,
No. 325621 (Mich. Ct. App. June 22, 2015). On October 26,
2016, the Michigan Supreme Court also denied leave to appeal.
People v. Dyson, 500 Mich. 880 (Mich. 2016).
filed the pending habeas petition on January 3, 2017.
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).
pending case, Petitioner's conviction became final before
the AEDPA's effective date, April 24, 1996. Prisoners
whose convictions became final before the AEDPA's
effective date are allowed one year from the AEDPA's
effective date to file their federal habeas petitions.
See Jurado v. Burt, 337 F.3d 638, 640 (6th Cir.
2003). In this case, the one-year limitations period
commenced on April 24, 1996. Petitioner filed his first
habeas petition on January 9, 1997. Although the limitations
period ordinarily is not tolled while a federal habeas corpus
petition is pending, Griffin v. Rogers, 308 F.3d
647, 651 (6th Cir. 2002) (citing Duncan v. Walker,
533 U.S. 167 (2001)), the Court will assume for purposes of
this case that the limitations period was tolled while
Petitioner's first habeas corpus petition was under
consideration in federal court. The limitations period, thus,
commenced on April 24, 1996, and continued to run until 260
days later, January 9, 1997, when it was tolled by the filing
of Petitioner's first habeas petition. The limitations
period, of which 105 days remained, resumed running on
November 26, 1997, when the Court dismissed the habeas
petition without prejudice. The limitations period continued
to run, uninterrupted, until it expired on March 12, 1998.
Petitioner's state court motion for relief from judgment,
filed March 26, 1998, did not toll or reset the expired
admits that his petition was not timely filed, but argues
that his showing of actual innocence excuses the
untimeliness. The Supreme Court has held that a showing of
actual innocence overcomes AEDPA's statute of
limitations. McQuiggin v. Perkins, 133 S.Ct. 1924,
1928 (2013). To determine whether a petitioner has satisfied
the requirements for establishing a cognizable claim of
actual innocence to warrant equitable tolling, the court
applies “the same actual innocence standard developed
in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851
(1995), for reviewing a federal habeas applicant's
procedurally defaulted claim.” McCray v.
Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007), citing
Souter, 395 F.3d at 596. A valid claim of actual
innocence requires a petitioner “to support his
allegations of constitutional error with new reliable
evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness account, or critical physical evidence
- that was not presented at trial.” Schlup,
513 U.S. at 324. “The Schlup standard is
demanding and permits review only in the
‘extraordinary' case.” House v.
Bell, 547 U.S. 518, 538 (2006) (citation omitted). A
court presented with new evidence must consider it in light
of “all the evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily
be admitted under rules of admissibility that would govern at
trial.” Id. (citation omitted). “Based
on this total record, the court must make ‘a
probabilistic determination about what reasonable, properly
instructed jurors would do.'” Id.
(quoting Schlup, 513 U.S. at 329). This standard
does not require absolute certainty about the
petitioner's guilt or innocence:
A petitioner's burden at the gateway stage is to
demonstrate that more likely than not, in light of the new
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt - or, to remove the double negative, that
more likely ...