Abela v. Martin

• Decision Date: 30 October 2002
• Docket Number: No. 00-2430.,00-2430.
• Citation: 309 F.3d 338
• Parties: Kevin Mark ABELA, Petitioner-Appellant, v. William MARTIN, Director, Michigan Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

309 F.3d 338

Kevin Mark ABELA, Petitioner-Appellant, v. William MARTIN, Director, Michigan Department of Corrections, Respondent-Appellee.

No. 00-2430.

United States Court of Appeals, Sixth Circuit.

Argued: July 30, 2002.

Decided and Filed: October 30, 2002.

James Sterling Lawrence (argued and briefed), Detroit, MI, for Petitioner-Appellant.

Raina I. Korbakis (argued), Office of the Attorney General, Habeas Corpus Division, Lansing, MI, for Appellee. William C. Campbell (briefed), Office of the Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent-Appellee.

Before SILER, COLE, and CLAY, Circuit Judges.

OPINION

COLE, Circuit Judge.

This action arises from a state manslaughter conviction and a subsequent petition for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the habeas petition on its merits, and Petitioner-Appellant Kevin Mark Abela has appealed. Abela argues that his habeas petition was timely filed and not procedurally defaulted. For that reason, he urges us to reverse the judgment of the district court and grant his petition on the grounds that his Fifth Amendment rights were violated by his post-arrest interrogation and the admission of statements from that interrogation at trial, because of prosecutorial conduct at trial, and because of ineffective assistance of trial and appellate counsel.

Although several issues were raised in this appeal, we need address only two: (1) whether Abela's habeas petition is moot and thus not within our Article III jurisdiction; and (2) whether Abela's habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Because Abela's § 2254 habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1), we do not address the procedural default issue or the remainder of Abela's claims on the merits. Accordingly, we AFFIRM the judgment of the district court in denying Abela's § 2254 habeas petition because such petition was filed outside the applicable statute of limitations.

BACKGROUND

A. Factual Background

Abela's underlying conviction stems from the stabbing death of Stanley Underwood at a party in the early morning hours of May 19, 1990. Abela arrived at a party at the home of Allen Howard in Rochester Hills, Michigan, sometime during the evening of May 18. At approximately 1 a.m. on May 19, Abela and a friend noticed a man, Jacob Sullivan, pushing a car out of the driveway of the home. Abela confronted Sullivan and an argument ensued, which then erupted into a fistfight. After the fight broke up, Sullivan ran into the house to tell his older brother, Jerry, that someone had beaten him up.

A second fight began when Jerry Sullivan and Howard ran outside to confront Abela. Abela's nose was broken in the fight, which ended with Howard holding Abela down on the ground. Howard promised Abela that he would release him if he left the party immediately. Abela then left the party with his friend Ronald Wright.

Upon reaching the car, Wright realized he had forgotten his jacket and returned to retrieve it. Abela was waiting for Wright at the edge of the driveway when he was attacked by several guests from the party. Abela was knocked to the ground and surrounded by several assailants, who kicked and punched him about the face and body. Among this group of attackers was Stanley Underwood, who, during the course of the brawl, straddled Abela's chest. Abela thereupon drew a knife from a sheath on his belt and stabbed Underwood in the chest and left arm three times. Underwood died shortly afterwards.

Abela fled to a friend's house, where he called 911 and admitted to the operator that he had stabbed someone. After meeting the police at Howard's house, Abela was taken to a hospital emergency room for treatment. While at the emergency room, but before being treated for his injuries, Oakland County Police Sergeant Michael McCabe questioned Abela about the events leading up to the stabbing. Abela responded by stating, "[M]aybe I should talk to an attorney by the name of William Evans," and handed Sergeant McCabe Evans's business card. Sergeant McCabe promised Abela that he would contact Evans, and left the room. Upon returning, McCabe made no mention of the fact that he had been unable to contact Evans, and proceeded to read Abela his Miranda rights. Abela signed a waiver form indicating that he had been informed of his Miranda rights and began giving a statement to Sergeant McCabe — beginning with the phrase, "I'll tell you everything." It does not appear that Sergeant McCabe took any steps toward contacting Evans before taking Abela's statement.

Abela gave a second statement to the police after his release from the hospital. In both statements, Abela admitted to stabbing Underwood, but claimed that he had done so in self-defense.

B. Procedural History

Abela was charged with second degree murder and carrying a concealed weapon in the stabbing death of Underwood. Before trial in the Oakland County Circuit Court, Abela's counsel sought dismissal of the weapons charge because the knife was not concealed — it was carried in a sheath attached to the outside of Abela's belt. The trial judge granted that motion on September 12, 1990. On November 5, 1990, the prosecution filed a motion — outside the applicable 14-day time limit — seeking reconsideration of the dismissal. Mich. Ct. R. 2.119(F)(1). Abela's counsel did not object to this motion. On June 3, 1991, the judge granted the motion for reconsideration and reinstated the weapons charge.

The trial commenced in June 1991. During closing arguments, the prosecutor referred to a conversation between Abela and co-defendant Ronald Wright, a conversation that does not appear anywhere in the trial record. The prosecutor stated:

Do you think when they got back to that car they were mad as hell? Both of them got shot down, pretty damn drunk, they are pretty pissed off. They've lost the fight. They've been thrown out. They've been humiliated. They've been embarrassed.

Not only that, Ron Wright says, "My damn coat's back there. Let's go get it." [Abela then replied,] "Ronnie, better take this [Abela's knife] when we go back. Ain't nobody going to kick our ass anymore. Let's go back."

Abela was convicted by a jury of voluntary manslaughter and carrying a concealed weapon on July 24, 1991. He was sentenced to a term of seven to fifteen years for voluntary manslaughter, and a concurrent forty months to five years of incarceration for carrying a concealed weapon.

Abela appealed his conviction by raising three issues in the Michigan Court of Appeals on February 17, 1992. The three issues were: (a) that his sentence was disproportionate to the crime; (b) that the trial court erred by reinstating the weapons charge; and (c) that the trial court erred by allowing the prosecution to present rebuttal testimony not raised in its case in chief. The Michigan Court of Appeals affirmed Abela's conviction and sentence in an unpublished disposition. People v. Abela, No. 144005 (Mich.Ct.App. July 22, 1994). The Michigan Supreme Court denied Abela's delayed application for leave to appeal these issues on March 31, 1995. People v. Abela, 448 Mich. 901, 533 N.W.2d 313 (Mich.1995).

On August 20, 1996,¹ Abela filed a motion for relief from judgment in the Oakland County Circuit Court, raising six claims: (a) Abela's statement at the hospital was involuntary because Sergeant McCabe ignored Abela's request for an attorney; (b) Abela's statement at the hospital was involuntary because he was injured and under the influence of alcohol and pain medication; (c) the trial court improperly granted the prosecution's untimely motion to reconsider the dismissal of the concealed weapon charge; (d) the prosecutor unfairly prejudiced Abela by presenting witness testimony in his closing argument that was unsupported by the record; (e) Abela's trial counsel provided ineffective assistance; and (f) Abela's appellate counsel provided ineffective assistance. The motion was denied "for lack of merit on the grounds presented." People v. Abela, No. 90-101083 (Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the same six issues on appeal to the Michigan Court of Appeals, which also denied leave to appeal and a motion to remand. People v. Abela, No. 200930 (Mich.Ct.App. July 22, 1997). On August 9, 1997, Abela again raised these six issues in his delayed application for leave to appeal to the Michigan Supreme Court, which likewise denied his petition. People v. Abela, 457 Mich. 880, 586 N.W.2d 923 (Mich.1998). On August 3, 1998, Abela filed a petition for certiorari with the United States Supreme Court, which was denied on October 19, 1998. Abela v. Michigan, 525 U.S. 948, 119 S.Ct. 374, 142 L.Ed.2d 309 (1998).

Abela was released to parole status on March 16, 1998, and discharged from parole on March 16, 2000 — terminating his seven to fifteen year sentence for manslaughter. Abela's three to five year sentence for carrying a concealed weapon ended on October 22, 1995.

On April 26, 1999, before his parole term had ended, Abela sought a writ of habeas corpus pursuant to § 2254, raising the same claims as in his motion for relief from judgment (except for his claim regarding the trial court's decision to reconsider its dismissal of the concealed weapon charge). The district court issued a memorandum opinion and denied the petition for habeas relief on October 31, 2000. On December 28, 2000, the district court denied Abela's motion for a certificate of appealability.

Abela appealed his denial of the motion to this Court. We granted his certificate of appealability on the issues before us on April 20, 2001.

DISCUSSION

1. STANDARD OF REVIEW

In an appeal of a district court's decision denying habeas relief under 28 U.S.C. § 2254, this Court's review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-32, ...