United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS , DISMISSING THE HABEAS PETITION , AND DENYING
PETITIONER'S MOTIONS TO APPOINT COUNSEL  AND TO COMPEL
V. PARKER, U.S. DISTRICT JUDGE
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
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
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2014) (unpublished) (ECF No. 9-9.)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.)
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.
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)
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)
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.)
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.
The Statute of Limitations
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.