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Barnes v. Harry

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

November 12, 2019

DOUGLAS A. BARNES, Petitioner,
v.
SHIRLEE HARRY, Respondent.

          OPINION AND ORDER DISMISSING THE HABEAS PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL [1]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Michigan prisoner Douglas Barnes (“Petitioner”), through counsel, filed a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. (ECF No. 1.) Following a no-contest plea in the Wayne County Circuit Court, Petitioner was convicted under M.C.L. § 750.520b(1)(a) of first-degree criminal sexual conduct involving a person under 13 years old. (ECF Nos. 1-2, PageID.59; 1-3, PageID.61-62.) Petitioner was sentenced to 7 to 20 years imprisonment in 2006. (Id.)

         In his habeas petition, Petitioner raises the following claims:

The state trial and appellate courts erred in denying [Petitioner's] motion for relief from judgment because he was denied the effective assistance of trial counsel and he had good cause for failing to file an application for leave to appeal based upon the ineffective assistance of appellate counsel.

(ECF No. 1, PageID.12.) The government, in its response, asserts that Petitioner's habeas petition is untimely under the one-year statute of limitations applicable to federal habeas actions. (ECF No. 8, PageID.254-55.) The government additionally asserts that Petitioner's claims are procedurally defaulted and/or lack merit. (Id.)

         After careful review, the Court concludes that the habeas petition is untimely and must be dismissed. The Court also concludes that a certificate of appealability and leave to proceed in forma pauperis on appeal must be denied.

         II. FACTS AND PROCEDURAL HISTORY

         Petitioner's conviction arises from his guilty plea to the sexual assault of a five-year-old girl at a residence in Romulus, Michigan in 2005. (ECF No. 3-1, PageID.241-243.) Petitioner pleaded guilty to acts of fellatio, cunnilingus, and sexual penetration. (Id.) The victim, in her testimony, described areas in the home where she spit out Petitioner's semen. (Id. at PageID.242.) The government tested samples from these areas and found that the samples contained Petitioner's DNA. (Id.)

         On May 12, 2006, Petitioner pleaded guilty to one count of first-degree criminal sexual conduct in exchange for the dismissal of additional charges and an agreement that he would be sentenced to a term of 7 to 20 years imprisonment, which was below the recommended minimum sentence guideline range of 9 to 15 years imprisonment and the possible maximum sentence of life imprisonment. (Id. at PageID.241-243.) On June 14, 2006, the trial court sentenced Petitioner to 7 to 20 years imprisonment as agreed upon in his plea agreement. (ECF No. 9-4, PageID.414.)

         Following sentencing, Petitioner requested appellate counsel. (ECF No. 2-3, PageID.129.) On August 3, 2006, the trial court appointed Daniel Rust (“Rust”) as appellate counsel. (ECF No. 1-7, PageID.72.) On May 10, 2007, Rust visited Petitioner in prison and informed him that he did not have a legal basis to challenge his plea or sentence. (Id.) On May 23, 2007, Rust moved to withdraw as counsel. (Id.) On May 31, 2007, the trial court granted that motion and appointed Ronald Ambrose (“Ambrose”) as second appellate counsel. (ECF No. 1-8, PageID.76.)

         On October 1, 2007, Ambrose visited Petitioner. (ECF No. 2-6, PageID.142.) According to Petitioner, Ambrose later mailed Petitioner a letter stating that Petitioner had no arguable issues and encouraging Petitioner not to appeal. (Id.) On December 19, 2007, Ambrose moved to withdraw as counsel, stating that that “counsel is of the opinion that there are no arguable issues on appeal.” (ECF No. 10, PageID.556.) Two days later, Petitioner wrote Judge Ewell a letter stating that he was “not willing to give up [his] right to appeal, ” inquiring as to how much time remained to file an appeal, and asking that new counsel be appointed. (ECF No. 2-6, PageID.142.)

         On January 8, 2008, the trial court granted Ambrose's motion to withdraw. On January 16, 2008, the court appointed Phillip Comorski (“Comorski”) as third appellate counsel. (ECF No. 1-9, PageID.78.) On August 2, 2008, Comorski visited Petitioner to discuss his case and subsequently prepared an affidavit for Petitioner's signature. (ECF No. 1-10, PageID.80-81.) The affidavit raised claims about trial counsel's alleged coercive and ineffective conduct during the plea proceedings. (Id.) However, on November 1, 2008, Petitioner sent a letter to Comorski stating that he would not sign the affidavit because he was “preparing other issues for his case” and needed more time to do so. (Id. at PageID.81.) On February 3, 2009-after three months without communication from Petitioner-Comorski moved to withdraw as counsel because he was “unable to ascertain [] what these ‘issues' [were]” and he “[could] not determine whether [Petitioner] wishe[d] to pursue his appeal in this case.” (Id.) On March 11, 2009, the trial court granted that motion and appointed Frederick Finn (“Finn”) as fourth appellate counsel. (ECF No. 1-11, PageID.85.)

         On March 24, 2009, Finn visited Petitioner to discuss the case. (ECF No. 1-12, PageID.87.) On March 30, 2009, Finn moved to withdraw as counsel, stating that he told Petitioner he “[found] no legitimate grounds for a plea withdrawal or an appeal of the sentence imposed . . . [Petitioner] refused to sign a withdrawal form, and refused to advise defense counsel as to how he wished to proceed in this case. [Petitioner] further stated that he intended to pursue this case with another attorney.” (ECF No. 10, PageID.559.) Sometime thereafter, the trial court apparently granted that motion and appointed Lawrence Bunting (“Bunting”) as fifth appellate counsel. (See ECF No. 1-13, PageID.91-92.)

         On June 23, 2009, Petitioner signed an affidavit alleging that trial counsel was ineffective and coercive during the plea proceedings, that his plea was involuntary, and that he was innocent and wanted a trial. (ECF No. 9-11, PageID.520-521.) Though Petitioner later attached this affidavit to his 2014 filing in the Michigan Court of Appeals, (id.), it is unclear what became of this affidavit immediately after it was executed in 2009. Additionally, the record shows no action by Petitioner from July 2009 to May 2011.

         On June 21, 2011, Bunting filed a motion for relief from judgment with the state trial court on the following grounds: 1) trial counsel was ineffective for failing to investigate Petitioner's case or inform him of the elements of the offense, rendering Petitioner's plea involuntary; 2) Petitioner is actually innocent because the DNA evidence against him may not have been reliable; and 3) Petitioner's appellate attorneys refused to pursue his appeal in a timely manner. (ECF No. 1-13.) On November 14, 2011, the trial court denied Petitioner's motion. (ECF No. 1-14, PageID.110.) The trial court held that Petitioner had failed to show that either trial or appellate counsel was ineffective.[1] (Id. at PageID.108-109.) The court further held that Petitioner had failed to present evidence of his actual innocence under Michigan Court Rule 6.508(D), noting that this issue could have been raised on appeal. (Id. at PageID.105-106.)

         Bunting did not pursue a timely appeal of the trial court's decision. Bunting's failure to appeal on Petitioner's behalf earned him a reprimand from the Michigan Appellate Assigned Counsel System in November 2013. (ECF No. 2, PageID.112-113.)

         On January 8, 2014, the trial court removed Bunting as counsel. (ECF No. 9-7, PageID.450.) On February 3, 2014, the trial court appointed Lee Somerville (“Somerville”) as sixth appointed counsel. (ECF No. 2-1, PageID.115.) Somerville moved for re-issuance of the trial court's order denying relief from judgment, which the trial court granted. (ECF No. 9-7, PageID.447-448.) On October 21, 2014, the trial court re-issued its order. (ECF No. 9-9, PageID.469.) On November 7, 2014, Somerville then filed an application for leave to appeal the denial of relief with the Michigan Court of Appeals. (ECF No. 2-3, PageID.136.) On December 19, 2014, the Court of Appeals denied leave because Petitioner “failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D).” The Court of Appeals noted that Petitioner “allege[d] grounds for relief that could have been raised previously, ” that he “failed to establish good cause for failing to previously raise the issues, ” and that he “has not established that good cause should be waived” under M.C.R. 6.508(D)(3)(a). (ECF No. 2-4, PageID.138.) Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied on November 24, 2015. (ECF No. 2-5, PageID.140.) The Supreme Court noted that Petitioner “failed to meet his burden of establishing entitlement to relief under M.C.R. 6.508(D).” (Id.)

         Petitioner, through counsel, filed his federal habeas petition on November 7, 2016. (ECF No. 1.) Respondent filed an answer to the habeas petition and the ...


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