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Dennis v. Burt

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

September 16, 2019

WILLIAM EDWARD DENNIS, Petitioner,
v.
SHERRY L. BURT, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S MOTION TO LIFT THE STAY [DKT. #12], DENYING THE MOTIONS TOAMEND THE HABEAS PETITION [DKT. #13 AND #19], DISMISSING THE HABEAS PETITION [DKT. #1] WITH PREJUDICE, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          SEAN F. COX U.S. DISTRICT JUDGE

         On July 13, 2018, petitioner William Edward Dennis filed a pro se habeas corpus petition challenging his Michigan convictions for criminal sexual conduct. His sole ground for relief was that his trial attorney was ineffective for failing to present an adequate alibi defense. Petitioner subsequently asked the Court to hold his petition in abeyance, and after the Court denied Petitioner's requests for a stay, Petitioner moved to amend his petition to add more claims and to lift what he thought was a stay of the case. Respondent Sherry L. Burt then filed an answer to the petition in which she argued that Petitioner's claim about trial counsel was both time-barred and meritless and that Petitioner's proposed new claims also would be barred by the statute of limitations. The Court directed Respondent to file a supplemental brief, and after Respondent filed her supplemental brief, Petitioner filed another motion to amend his petition. The Court agrees with Respondent that Petitioner's initial claim and his proposed new claims are barred by the statute of limitations. Accordingly, the Court will dismiss the petition and deny Petitioner's pending motions to lift the stay and to amend the petition to add more claims.

         I. Background

         A. The Conviction, Sentence, and Direct Appeal

         Petitioner was charged in Wayne County, Michigan with three counts of first-degree criminal sexual conduct and three counts of third-degree criminal sexual conduct. The charges arose from allegations that he engaged in sexual activity with his niece from approximately June 14, 2001, when the girl became thirteen years old until sometime in 2003 when she was fifteen years old. The complainant did not disclose the abuse at the time because Petitioner intimidated her, and she was afraid of him. She ultimately told a boyfriend and a psychologist about the abuse and then went to the police in 2012. At Petitioner's trial in Wayne County Circuit Court,

the jury heard testimony from, among others: the victim, her brother, her cousin, [1]and defendant himself. The victim told the jury that defendant molested her at her grandmother's house multiple times over a period of years, and that the molestation followed a pattern. Defendant would provide alcohol and marijuana to her, her brother, and her cousin, and thereafter would sexually assault her. On at least one occasion, defendant put his penis in her mouth and raped her.
The victim's brother and cousin largely corroborated the victim's testimony. Both explained that defendant gave them alcohol and drugs, and that they witnessed defendant behaving suspiciously around the victim.[2] The victim's cousin also stated that defendant told her he had extensive sexual contact with the victim, but he defended his conduct by stating that: (1) the victim was supposedly 17 at the time; and (2) “I was drunk, she was drunk, [and] she was taking her clothes off.” Defendant testified on his own behalf and denied that he had any sexual contact with the victim. He also asserted that he never supplied alcohol or marijuana to the victim, her brother, or her cousin. Defendant further implied that he could not have committed the alleged molestation because his work schedule at the time required him to be away from his mother's house during most evenings.

People v. Dennis, No. 321191, 2015 WL 4990874, at *1 (Mich. Ct. App. Aug. 20, 2015) (footnotes in original).

         The trial court dismissed one count of third-degree criminal sexual conduct during the trial, and on March 6, 2014, the jury found Petitioner found guilty of two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(b), and one count of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1). The jury acquitted Petitioner of the remaining counts (one count of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct). On March 20, 2014, the trial court sentenced Petitioner to concurrent terms of seventeen and a half to thirty years in prison for the first-degree convictions and seven to fifteen years for the third-degree conviction.

         Petitioner appealed his convictions, raising two claims of ineffective assistance of trial counsel. In his first claim, he argued that trial counsel was ineffective for (a) failing to file a notice of alibi, (b) failing to request the alibi jury instruction, (c) ignoring critical alibi evidence, and (d) failing to properly cross-examine his daughter regarding his alibi of not being present in Michigan at the time of the alleged events. In his second claim, Petitioner argued that the trial court erred by not dismissing all the third-degree criminal-sexual-conduct charges on the basis that the ten-year statute of limitations had run on those claims. Petitioner also claimed that trial counsel was ineffective for failing to move for a directed verdict of acquittal on the third-degree charges. The Michigan Court of Appeals found no merit in Petitioner's claims and affirmed his convictions in an unpublished, per curiam opinion. See Dennis, 2015 WL 4990874. On March 8, 2016, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Dennis, 875 N.W.2d 214 (Mich. 2016) (table decision).

         B. The Motion for Relief from Judgment, Appeal to the Michigan Court of Appeals, and First Habeas Corpus Petition

         On March 9, 2017, Petitioner raised six issues in a motion for relief from judgment. He argued through counsel that: (1) the trial court improperly classified the complainant as a victim; (2-5) trial counsel was ineffective for (a) failing to conduct any pretrial investigative interviews of prosecution witnesses, (b) failing to investigate and introduce exculpatory records that he resided in Pennsylvania from September 2000 through at least May 2002, (c) failing to introduce a photograph on which the complainant expressed her love for him, and (d) admitting that “something must have happened;” and (6) appellate counsel was “cause” for failing to raise these constitutional violations on direct appeal.

         The trial court denied Petitioner's motion after concluding that it was precluded from considering Petitioner's claims about trial counsel because he raised those issues on appeal and that Petitioner's claims about the trial court and appellate counsel lacked merit. The court also stated that Petitioner had not shown “good cause” under Michigan Court Rule 6.508(D)(3) for not raising all his claims on appeal and “actual prejudice” from the claimed errors. See Op. and Order, People v. Dennis, No. 13-009869-01 (Wayne Cty. Cir. Ct. Aug. 10, 2017).

         On March 28, 2018, Petitioner filed a pro se delayed application for leave to appeal the trial court's decision. While the delayed application was pending in the Michigan Court of Appeals, Petitioner filed a habeas corpus petition that was assigned to another judge in this District. Petitioner signed that petition on April 15, 2018. In a subsequent letter to the Court, Petitioner asked the assigned judge to disregard his petition because his mother had mistakenly filed the petition before he could exhaust his state remedies. He also stated that he would be filing another petition once he exhausted all his state remedies. See Dennis v. Burt, No. 2:18-cv-11336, Letter from William E. Dennis, Dkt. #3 (E.D. Mich. May 3, 2018). The case was summarily dismissed on May 10, 2018, at Petitioner's request. See id., Order, Dkt. #4, and Judgment, Dkt. #5.

         On May 22, 2018, the Michigan Court of Appeals dismissed Petitioner's appeal because he failed to file his delayed application within the time required by Michigan Court Rule 7.205(G)(3). See People v. Dennis, No. 343697 (Mich. Ct. App. May 22, 2018). On June 5, 2018, the Michigan Court of Appeals filed a similar order dismissing the delayed application for leave to appeal the trial court's decision. See People v. Dennis, No. 343973 (Mich. Ct. App. June 5, 2018).

         C. The Appeal to the Michigan Supreme Court, the Current Petition, Respondent's Answer and Supplemental Brief, , Petitioner's Replies, and Petitioner's Second Motion to Amend Petitioner did not appeal the June 5, 2018, order of the Michigan Court of Appeals. See Affidavit of Larry Royster, Clerk for the Michigan Supreme Court, Dkt. #15-13. He did appeal the May 22, 2018, order of the Michigan Court of Appeals, and while that appeal was pending in the Michigan Supreme Court, this Court received Petitioner's current habeas corpus petition. The petition was signed on April 15, 2018, but it was received and filed by the Clerk of Court on July 13, 2018.

         Petitioner subsequently filed two applications to hold his habeas petition in abeyance while he continued to exhaust state remedies for the issues that he raised in his motion for relief from judgment. See Applications, Dkt. #7 and #9. While those applications remained pending, the Michigan Supreme Court denied Petitioner's application for leave to appeal the Michigan Court of Appeals decision dated May 22, 2018. See People v. Dennis, 919 N.W.2d 785 ...


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