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Brockman v. McCullick

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

September 15, 2017

OMAR ODALE BROCKMAN, Petitioner,
v.
MARK MCCULLICK, Respondent.

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [8], DISMISSING THE HABEAS PETITION [1], AND DENYING PETITIONER'S MOTIONS TO APPOINT COUNSEL [7] AND TO COMPEL DISCOVERY [11]

          LINDA V. PARKER, U.S. DISTRICT JUDGE

         This matter came before the Court on Petitioner Omar Odale Brockman's pro se habeas corpus petition under 28 U.S.C. § 2254. Also pending before the Court are Petitioner's motions for appointment of counsel and to compel discovery and Respondent Mark McCullick's motion to dismiss the petition for failure to comply with the statute of limitations. For the reasons given below, the Court is granting Respondent's motion, denying Petitioner's motions, and dismissing the petition with prejudice.

         I. Background

         Petitioner and his brother were tried jointly before a judge in Wayne County Circuit Court. The evidence at trial established:

Both [Petitioner] and his brother Kendale Brockman went to the victim's house ostensibly to collect a debt. They entered the house. They beat the victim for twenty to thirty minutes. During the course of the beating they kept asking, “Where's my money?” The[] eyewitness testified that the victim may have been punched fifty times. The witness then testified that both defendants kicked and punched the victim, who did not fight back. The witness testified that there was blood on the victim and the walls of the house. That evidence matched the evidence presented from the autopsy that the victim suffered a laceration to the back of his head and other abrasions.
After the assault ended both defendants left the house. Omar removed the victim from inside the house to the outside of the house. The victim jumped in a car to flee from the scene. Five or six gunshots were fired at the victim. There was no evidence of close range firing. An eyewitness testified that Omar held a gun when he re-entered the house after the shooting.

         Op. and Order Den. Def.'s Mot. for Relief from J, People v. Brockman, No. 07-004028-01, (Wayne Cty. Cir. Ct. Apr. 8, 2014) (unpublished) (ECF No. 9-9.) The victim died of a gunshot wound to his left hip. (4/25/07 Trial Tr. at 70, ECF No. 9-3 at Pg ID 395.)

         At the conclusion of the trial on April 30, 2007, the trial judge found Petitioner guilty of second-degree murder, Mich. Comp. Laws § 750.317, assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and felony firearm, Mich. Comp. Laws § 750.227b. On May 25, 2007, the trial court sentenced Petitioner as a third felony offender to two years in prison for the felony- firearm conviction, followed by concurrent prison terms of twenty-five to seventy years for the murder conviction, twelve to twenty years for the assault conviction, and five to ten years for the felon-in-possession conviction.

         Petitioner appealed his convictions through appointed counsel, arguing: (1) there was insufficient evidence at trial to support his murder and firearm convictions; (2) he received ineffective assistance of trial counsel; (3) his Fifth Amendment right not to be placed in double jeopardy was violated when he was convicted of second-degree murder and assault with intent to commit great bodily harm; and (4) his sentence for second-degree murder was based on inaccurate information. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Brockman, No. 278616, 2008 WL 4291668 (Mich. Ct. App. Sept. 16, 2008) (unpublished). On February 24, 2009, the Michigan Supreme Court denied Petitioner's pro se application for leave to appeal. People v. Brockman, 760 N.W.2d 478 (Mich. 2009) (table).

         Over four and a half years later, on December 3, 2013, Petitioner filed a motion for relief from judgment in the trial court. He raised thirteen claims, including several challenges to the state trial and appellate courts' jurisdiction, the admission of certain evidence, and his trial and appellate attorneys' representation of him. The trial court denied Petitioner's motion, and the Michigan Court of Appeals denied leave to appeal because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Brockman, No. 322657 (Mich. Ct. App. Sept. 4, 2014). On June 30, 2015, the Michigan Supreme Court denied Petitioner leave to appeal for the same reason. People v. Brockman, 865 N.W.2d 27 (Mich. 2015) (table).

         On September 15, 2016, Petitioner signed and dated his federal habeas corpus petition, and on September 20, 2016, the Clerk of the Court filed the petition. Petitioner subsequently moved for appointment of counsel and to compel discovery. In his petition, Petitioner raises the following as grounds for relief: (1) the state district court and circuit court lacked jurisdiction, (2) the improper admission of expert testimony deprived him of a fair trial and due process of law, (3) trial counsel was ineffective for failing to object to the admission of expert testimony, and (4) appellate counsel deprived him of effective assistance on direct appeal. (See ECF No. 1 at Pg ID 10.)

         Respondent filed a motion to dismiss on March 27, 2017, arguing that Petitioner's claims are time-barred. Petitioner replies that his petition is timely because he did not become aware of the factual predicate for his claims until he acquired a copy of his criminal file in April of 2013.

         II. Analysis

         A. The Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year limitations period for state prisoners to file their federal habeas corpus petitions. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C. § 2244(d)(1)); Holbrook v. Curtin, 833 F.3d 612, 615 (6th Cir. 2016), cert. denied sub nom. Woods v. ...


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