United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING THE MOTION FOR EQUITABLE
TOLLING, DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
prisoner Isaiah DeeQuan Clark (“Petitioner”) has
filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 asserting that he is being held in
violation of his constitutional rights. He has also filed a
motion for equitable tolling of the one-year statute of
limitations applicable to federal habeas actions. ECF No. 4.
Petitioner was convicted of second-degree murder, carrying a
firearm or other dangerous weapon with unlawful intent, felon
in possession of a firearm, three counts of assault with
intent to murder, and six counts of possession of a firearm
during the commission of a felony following a joint jury
trial with several co-defendants in the Saginaw County
Circuit Court. He was sentenced as a third habitual offender
to concurrent terms of 60 to 90 years on the murder and
assault convictions, concurrent terms of six to 10 years
imprisonment on the carrying a firearm or other dangerous
weapon with unlawful intent and felon in possession
convictions, and concurrent terms of two years imprisonment
on the felony firearm convictions, to be served consecutively
to the other sentences, in 2014. In his habeas petition, he
raises claims concerning the denial of a severance motion,
the admission of gang affiliation evidence, an upward
sentencing departure, and the trial court's questioning
of him during trial.
following reasons, the Court concludes that the habeas
petition is untimely and that the motion for equitable
tolling lacks merit. The Court also concludes that a
certificate of appealability and leave to proceed in forma
pauperis on appeal should be denied.
convictions arise from a shooting that occurred at a high
school pre-prom event in Saginaw, Michigan on May 23, 2013.
The Michigan Court of Appeals described the relevant facts,
which are presumed correct on habeas review, see 28
U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009), as follows:
These cases arise out of a May 23, 2013 shooting that
occurred shortly before 6:00 p.m. in the parking lot of
Saginaw's Florence Event Hall, where Saginaw High School
students had gathered with friends and family for an informal
pre-prom party. The prosecution theorized that animosity
between those associated with Sheridan Park neighborhood and
those associated with Saginaw's east side precipitated
the shooting. Evidence indicated that defendants Thomas and
McGee were from the east side, while defendant Clark, Keon
Bowens, a fourth defendant who was acquitted of all charges,
and Anterio Patton, the presumed target of the shooting, were
from Sheridan Park.
Pamela Jordan reported that, shortly before the shooting
began, Thomas, McGee, and several other young men approached
Patton, Clark, Bowens, and others gathered around the black
Caprice that Patton had driven to the pre-prom party. The
witness recounted that Thomas's group approached
Patton's group as if “they were wanting
trouble.” After she had taken a picture of Patton and
his date and was walking away, she heard someone from
Thomas's group said to someone in Patton's group,
“I heard you was looking for me. I got nine rounds for
you.” Malik Jordan testified that the men by the
Caprice were flashing weapons and gang signs, while Trenika
Shivers, Patton's aunt, said she saw McGee standing
beside Thomas, and saw Thomas flash his gun. Shivers opined
that Thomas's was not an aggressive move, nor was it much
noticed by Patton's group. According to Malik, Thomas
pulled his gun, held it by his side, and started to back up.
Shaquana Reid indicated that McGee was at Thomas's side,
acting as if he were about to draw his gun.
Several witnesses testified to a sense that something was
going to happen. Tangela Owens said she was walking around
taking pictures when her daughter, Tonquinisha
“Ne-Ne” McKinley, approached her and told her
they had to leave because something was “getting ready
to go down.” Pamela Jordan said that, just after she
heard the threatening words spoken toward Patton's group,
her son, Malik, approached her and said, “mom, it's
about to be some stuff, ” and began pushing her along,
away from the area where the black Caprice was parked.
Trenika Shivers said she sensed there was about to be a fight
and started to get in the Caprice to drive it out of the way
when defendant Clark pushed her all the way in the car and
said, “ma, get out the way.” According to Malik
Jordan, after Thomas pulled his weapon, held it by his side,
and started backing up, defendant Clark emerged from the
Caprice and started shooting. Marguerie Johnson recalled that
she was standing by defendants Thomas and McGee when the
shooting started, and she saw them shooting back in the
direction of Patton and defendant Clark. Several witnesses
said that it sounded like shots were coming from everywhere.
A firearms expert from the Michigan State Police testified
that police recovered 36 cartridge casings fired from five
semiautomatic weapons. Ne-Ne McKinley was fatally shot in the
face, while three other innocent bystanders were wounded.
People v. Clark, No. 323369, 20016 WL 4645822, *1-2
(Mich. Ct. App. Sept. 6, 2016) (unpublished)
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals essentially raising
the same claims presented on habeas review. The court denied
relief on those claims and affirmed his convictions and
sentences. Id. at *2-7, 14-16. Petitioner then filed
an application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v.
Clark, 500 Mich. 982, 893 N.W.2d 620 (May 2, 2017).
filed his undated federal habeas petition and his motion for
equitable tolling with the Court on February 22, 2019.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides a one-year period of
limitations for habeas petitions brought by prisoners
challenging state court judgments. The statute provides:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The