United States District Court, E.D. Michigan, Southern Division
AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE
HABEAS PETITION, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
AND ORDER GRANTING PETITIONER'S MOTION TO AMEND OR EXPAND
THE HABEAS PETITION, AND DENYING PETITIONER'S MOTION FOR
AN EVIDENTIARY HEARING
BERNARD A. FRIEDMAN, SENIOR U.S. DISTRICT JUDGE
matter is before the Court on petitioner's pro se
petition for a writ of habeas corpus brought under 28 U.S.C.
§ 2254; respondent's motion to dismiss the petition,
to which petitioner has responded; and petitioner's
motions to amend or to expand the habeas petition and for an
evidentiary hearing. Petitioner is challenging his state
convictions for armed robbery, Mich. Comp. Laws §
750.529, and bank robbery, Mich. Comp. Laws § 750.531.
He asserts claims of insufficient evidence, prosecutorial
misconduct, and ineffective assistance of trial and appellate
counsel. Petitioner also asserts that he is actually innocent
of the crimes for which he is incarcerated. Respondent argues
in his motion to dismiss the petition that petitioner failed
to comply with the applicable statute of limitations and that
petitioner is not entitled to equitable tolling of the
statute. For the reasons stated below, respondent's
motion shall be granted, and the habeas petition shall be
dismissed with prejudice. In addition, petitioner's
motion to amend or expand his petition shall be granted, but
his motion for an evidentiary hearing shall be denied.
was charged with aiding and abetting an armed robbery and
bank robbery on April 24, 2006, in Muskegon Township,
Michigan. Petitioner waived his right to a jury trial and was
tried before a judge in Muskegon County Circuit Court. The
Michigan Court of Appeals summarized the trial testimony as
Defendant's convictions arise from the robbery of a bank
by his cousin Keith Eastling, who passed a note to a teller
that stated, “I have a gun, 20's and 50's
only.” The teller gave Eastling $900 in twenty dollar
bills that included “bait money.” Eastling fled
from the bank and entered a truck across the street that
pulled into traffic, cutting off several cars. One of the
drivers followed the truck into a parking lot and saw the
passenger pull a shirt off the truck's license plate. The
truck then stopped at another parking lot, where police
apprehended both Eastling and defendant, who was driving.
Defendant had 14 twenty dollar bills in his pocket, including
five bait bills. The remainder of the money was either with
Eastling or had been stuffed between the seats of the truck.
Defendant initially claimed that he obtained the money by
selling scrap metal. Inside the truck the police found a bag
from a fast food restaurant that had a piece torn out; the
torn piece matched the robbery note. The police also
discovered the shirt and hat worn by Eastling during the
Defendant denied planning the robbery or knowing that
Eastling was planning a robbery. He also denied seeing
Eastling tear the bag or write a note. Defendant testified
that he went into an optical store near the bank to browse
for sunglasses while Eastling went into the bank purportedly
to cash a check. Defendant claimed that afterward Eastling
paid him $280 that he had loaned to Eastling.
People v. Frees, No. 275095, 2008 WL 376411, at *1
(Mich. Ct. App. Feb. 12, 2008).
close of the trial, the trial court determined that the
prosecutor had proved the elements of armed robbery and bank
robbery because it was clear that Eastling had committed the
charged offenses. The court stated that the real issue was
petitioner's state of mind before the robbery and when
leaving the scene of the robbery. The court concluded that
petitioner assisted Eastling in committing the robbery by
driving Eastling to the bank, waiting for him, and driving
him away. The court also opined that petitioner knew Eastling
intended to commit the robbery at the time petitioner gave
assistance. The court found petitioner's testimony to be
incredible because petitioner fled from the scene of the
crime at a high rate of speed and his statement to the
investigating detective conflicted with his trial testimony.
The court also found it unlikely that petitioner did not know
what Eastling intended to do because the two men were seated
next to each other in the vehicle that was used in the
robbery. Accordingly, the court convicted petitioner, as
charged, of armed robbery and bank robbery. 10/04/06 Trial
Tr. at 106-14 (PageID.356-64).
November 7, 2006, the trial court sentenced petitioner to two
concurrent terms of twenty-five to thirty-eight years in
prison. The Michigan Court of Appeals affirmed
petitioner's convictions and sentence, Frees,
2008 WL 376411, and on May 27, 2008, the Michigan Supreme
Court denied leave to appeal because it was not persuaded to
review the questions presented to it. People v.
Frees, 748 N.W.2d 856 (Mich. 2008). Petitioner did not
apply for a writ of certiorari in the United States Supreme
Court, and the deadline for doing so expired on August 25,
2008. See Sup. Ct. R. 13.1 (providing ninety days
from the entry of a judgment by a state court of last resort
to file a petition for a writ of certiorari).
six years later, on September 24, 2014, petitioner filed a
motion for relief from judgment. He claimed, among other
things, that he had newly discovered evidence to support his
allegations that he had no prior knowledge of Eastling's
intent to commit a bank robbery and that he was not involved
in an unarmed robbery of a market on the previous
On January 28, 2015, the trial court denied petitioner's
motion for relief from judgment because petitioner had not
shown good cause for his failure to raise his claim of actual
innocence in his pro se brief on appeal. People v.
Frees, No. 06-53214-FC (Muskegon Cty. Cir. Ct. Jan. 28,
2015); see docket entry 9-8.
April 4, 2016, the Michigan Court of Appeals denied leave to
appeal because petitioner had failed to establish that the
trial court erred in denying his motion for relief from
judgment. People v. Frees, No. 331752 (Mich. Ct.
App. Apr. 4, 2016); see docket entry 9-9. On
November 30, 2016, the Michigan Supreme Court denied leave to
appeal because petitioner had failed to establish entitlement
to relief under Michigan Court Rule 6.508(D). People v.
Frees, 887 N.W.2d 398 (Mich. 2016).
August 4, 2018, petitioner signed his habeas petition. He
claims that he placed his petition in the prison mailing
system on September 4, 2018. The Clerk of Court received and
filed the petition on September 7, 2018. The Court
understands the grounds for relief asserted in the petition
I. Newly discovered or newly presented evidence
Affidavits from a co-defendant and another inmate state that
Mr. Frees had no knowledge of the bank robbery.
II. Inaccurate and insufficient evidence
404B evidence brought out at trial was insufficient and was
more prejudicial than probative because (1) the eyewitness
did not identify Mr. Frees, only the vehicle, and (2) the
co-defendant's out-of-court statement exculpated Mr.
Frees. The co-defendant also admitted to owing Frees money,
thereby, accounting for the bait money.
III. Prosecutorial abuse/misconduct
Affidavits from Keith Eastling and Sean Ellesin show
misconduct by ...