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Clark v. Horton

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

June 26, 2019

ISAIAH DEEQUAN CLARK, #632964, Petitioner,
v.
CONNIE HORTON, Respondent.

          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

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         Michigan 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.

         For the 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.

         I.

         Petitioner's 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)

         Following 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).

         Petitioner filed his undated federal habeas petition and his motion for equitable tolling with the Court on February 22, 2019.

         II.

         The 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 ...

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