United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
J. MICHELSON UNITED STATES DISTRICT JUDGE
Jackson is currently in the custody of the Michigan
Department of Corrections. He is there because, back in 2012,
he pled guilty to, among other things, second-degree murder.
Now Jackson challenges his conviction by way of a petition
for a writ of habeas corpus. However, Jackson acknowledges
his petition is untimely. Hoping to proceed despite his late
filing, he says he has new evidence to establish his actual
innocence, evidence that a competent lawyer would have
discovered at the time of his plea. In response, the Warden
moves to dismiss, believing Jackson's new evidence does
not establish actual innocence, leaving Jackson's
petition time barred. The Court agrees with the Warden.
2012, Jackson was charged with first-degree murder and felony
firearm. Prior to trial, his counsel secured a plea deal that
would have had Jackson serve 15 years on the murder charge
and then two years on the felony firearm charge. (ECF No. 7,
PageID.497, 499.) Jackson turned down the offer and went to
trial. (Id.) Yet while the jury was deliberating,
Jackson asked his lawyer to see if the plea deal was still
available. (Id. at PageID.500.) It was-but with more
prison time. The state offered a minimum sentence of 25 years
if Jackson pleaded guilty to second-degree murder.
(Id.) Jackson agreed. (Id.)
plea hearing, Jackson made some consequential admissions. To
understand the admissions requires two bits of context. One,
Donnell Howard was shot and killed in a Flint, Michigan party
store. Two, Jackson said he had known Howard for years. (ECF
No. 7, PageID.478.) On the day of Howard's death, Jackson
admitted that he was inside that party store, arguing with
Howard. (ECF No. 7, PageID.478-479.) At the time, Jackson had
a firearm in his possession. (Id. at PageID.479,
482.) And during the argument, Jackson drew the pistol and
shot Howard once in the leg. (Id. at PageID.480.)
Jackson was sure he only shot Howard once. He even disputed
witness testimony suggesting multiple shots were fired.
(Id.) In the aftermath, Jackson saw that Howard was
injured and watched Howard bleed to death. (Id. at
PageID.481.) All of the above was captured by the store's
surveillance camera. (Id.)
on Jackson's admissions, the judge accepted Jackson's
guilty plea. (Id. at PageID.482.) In August 2012,
the trial court sentenced Jackson to consecutive terms of 25
to 50 years for the murder conviction and two years for the
firearm conviction. (ECF No. 7-23, PageID.508.)
sentencing, Jackson tried to relitigate his plea. Through
counsel, he filed a post-judgment motion to withdraw the
guilty plea, which was denied. (ECF No. 7-24.) Then he sought
leave to appeal in the Michigan Court of Appeals, again
challenging the validity of his plea, which was, again,
denied. (ECF No. 7-25, Page.ID.517.) And finally, Jackson
filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims, which, on October 28,
2013, led to a final denial. (ECF No. 7-26, Page ID.587.) At
no point did Jackson ever claim he was innocent.
three years later, Jackson first advanced a claim that he was
actually innocent. In an October 2016 motion for relief from
judgment, Jackson claimed to have discovered new evidence.
(ECF No. 10, PageID.965.) Jackson produced an affidavit from
Daniel Swopes (ECF No. 1, PageID.61-62), someone Jackson says
was in the store when Howard was shot (id. at
PageID.66). Swopes, too, says he was at the store when the
shooting happened, and Swopes says Jackson was not the
shooter. (Id.) But beyond that, Swopes is no help
because once the shooting began, Swopes says he ran for his
adds his own affidavit. He describes his trial lawyer's
alleged poor performance leading up to his guilty plea.
(Id. at PageID.64-66.) According to Jackson, his
lawyer refused to present an alibi defense and refused to let
Jackson stand on his right to testify. (Id.)
Instead, the lawyer berated Jackson until Jackson agreed to
plead guilty, lest Jackson face a jury conviction for
first-degree murder. (Id.) So the lawyer's
tirade, coupled with side-effects from an anxiety medication,
left Jackson out of his “right state of mind”
when he agreed to plead guilty. (Id. at
PageID.64-66.) All told, Jackson's affidavit attempts to
cast doubt on the validity of his plea.
December 2016, the state court denied Jackson's motion.
The state court found, in part, that Jackson's claim of
actual innocence did not square with the facts Jackson
admitted to at the plea hearing. (ECF No. 10-3.) From there,
Jackson exhausted his avenues for relief in the state courts,
culminating in the Michigan Supreme Court denying his
application for leave to appeal on May 29, 2018. (ECF No.
7-27, Page ID.627; ECF No. 7-28, Page ID.864.)
long after the Michigan Supreme Court denied his application,
but almost six years after he pleaded guilty, Jackson
petitioned this Court for a writ of habeas corpus. (ECF No.
and the Warden agree the petition is untimely. (ECF No. 9,
PageID.945.) And because it is untimely, the Warden says
Jackson's petition should be dismissed. (ECF No. 8.) But
Jackson urges the Court to reach the merits, believing he
should be allowed to pass through the actual-innocence
gateway. (ECF No. 9, PageID.945-946.)
Antiterrorism and Effective Death Penalty Act sets a one-year
limitations period for habeas corpus petitions. 28 U.S.C.
§ 2244(d)(1). The default limitations period starts the
day the petitioner's judgment becomes final by the
conclusion of direct review or the day when the time for
seeking such review expires. 28 U.S.C. § 2244(d)(1)(A).
But § 2244(d) is subject to equitable tolling,
Holland v. Florida, 560 U.S. 631, 645 (2010),
including where a petitioner makes a “credible
showing” of actual innocence. Souter v. Jones,
395 F.3d 577, 599 (6th Cir. 2005).
actual-innocence gateway for equitable tolling is exceedingly
narrow. See Souter, 395 F.3d at 600 (reasoning that
the actual-innocence exception is “limited to the rare
and extraordinary case”). To squeeze through, Jackson
needs to present new evidence making it “more likely
than not that no reasonable juror would have found [him]
guilty beyond a reasonable doubt[.]” Souter,
395 F.3d at 596. And his new evidence must be
“‘reliable evidence-whether it be exculpatory
scientific evidence, trustworthy ...