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Armstead v. Winn

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

March 15, 2018

DION ARMSTEAD, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY

          Arthur J. Tarnow Senior United States District Judge

         Petitioner 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.

         I. Background

         Armstead's 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).

         Armstead 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.

         Armstead 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).

         On July 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.

         Armstead filed the pending habeas petition on June 13, 2017. He raises these claims:

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 trial.
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 ...

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