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Frees v. Winn

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

June 6, 2019

GERALD FRANKLIN FREES, 623134, Petitioner,
v.
THOMAS WINN, Respondent.

         OPINION 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

         This 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.

         I. Background

         Petitioner 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 follows:

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 robbery.
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).

         At the 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).

         On 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).

         Over 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 day.[1] 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.

         On 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).

         On 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 to be:

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 ...

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