United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY
J. Tarnow Senior United States District Judge
Dion Armstead has filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254. Armstead
challenges his convictions for first-degree felony murder and
possession of a firearm during the commission of a felony.
Respondent, through the Attorney General's Office, has
filed a Motion for Dismissal of Petition for Habeas Corpus on
the ground that the petition was not timely filed. The Court
finds that the petition was not timely filed and that
Armstead is not entitled to equitable tolling of the
limitations period. Respondent's motion is granted.
convictions arise from the killing of Antonio Farris during
an armed robbery in Detroit on July 6, 1995. The Michigan
Court of Appeals summarized the circumstances leading to
Armstead's convictions as follows:
At trial, evidence showed that defendant and one or two other
unidentified men approached the vehicle in which Farris,
Ecckles, Williams and Nealy were sitting, pointed guns at the
occupants of the vehicle and at Reed, and demanded their
purses. The act of pointing guns at the occupants establishes
an assault, since it would have placed the occupants in
reasonable apprehension of receiving an immediate battery.
Moreover, Ecckles testified to being frightened at having a
gun pointed at him. While this assault was occurring, a man
with defendant grabbed a purse from Nealy. When the car drove
away, defendant fired a shot into it, striking and killing
Farris. Subsequently, defendant and another man walked Reed
down the street at gunpoint, then took a necklace and
saddlebags from him. The robbery of Reed was part of a
continuing felony transaction during which Farris was shot.
... The evidence established that defendant was armed with a
weapon, feloniously took property from Reed's person, and
participated in the robbery of the purse from Nealy.
People v. Armstead, No. 195945, *2, 1998 WL 2016549
(Mich. Ct. App. 1998).
was convicted by a jury in Recorder's Court for the City
of Detroit of first-degree felony murder, second-degree
murder, armed robbery, and possession of a firearm during the
commission of a felony. On April 10, 1996, Armstead was
sentenced to life imprisonment for the murder conviction, 240
months to life for the second-degree murder conviction, 120
to 240 months for the armed robbery conviction, and two years
imprisonment for the felony-firearm conviction.
filed an appeal of right in the Michigan Court of Appeals,
arguing that his convictions for first-degree felony murder
and second-degree murder violated double jeopardy, prosecutor
failed to establish an independent basis for the tainted
in-court identifications, insufficient evidence was presented
to establish the elements of armed robbery, and ineffective
assistance of counsel. The Michigan Court of Appeals vacated
Armstead's conviction and sentence for second-degree
murder and affirmed the convictions in all other respects.
Id. The Michigan Supreme Court denied Armstead's
application for leave to appeal. People v. Armstead,
459 Mich. 890 (Mich. Oct. 26, 1998).
11, 2012, Armstead filed a motion for relief from judgment in
the trial court raising these claims: (i) expert
witness's failure to disclose cause of death denied
Petitioner a fair trial; (ii) inadequate jury instructions;
(iii) photo line-up procedure unduly suggestive; (iv)
prosecutorial misconduct; and (v) conviction for felony
murder was against the great weight of the evidence. The
trial court denied the motion. See 10/9/12 Order
(ECF No. 9-4). Armstead did not file an application for leave
to appeal in the Michigan Court of Appeals. See
7/11/17 Affidavit of Jerome W. Zimmer, Jr., Chief Clerk.
filed the pending habeas petition on June 13, 2017. He raises
I. The unduly suggestive line-up procedure resulted in
Petitioner being misidentified, denied him a fair trial, and
convicted him of crimes he did not commit.
II. Prosecutor's statements denied Petitioner a fair
III. The weight of the armed robbery evidence was not great
enough to sustain a felony-murder conviction.
IV. The weight of the evidence that Petitioner killed the
victim was not great enough to sustain a ...