Kelley v. Burton

• Decision Date: 31 January 2022
• Docket Number: CIVIL 2:18-CV-11161
• Parties: MARCUS MANDELLE KELLEY, Petitioner, v. DEWAYNE BURTON, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

MARCUS MANDELLE KELLEY, Petitioner, v. DEWAYNE BURTON, Respondent.

CIVIL No. 2:18-CV-11161

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

January 31, 2022

OPINION AND ORDER ON REMAND (1) GRANTING THE MOTION TO AMEND THE PETITION FOR A WRIT OF HABEAS CORPUS AND (2) CONDITIONALLY GRANTING THE AMENDED PETITION FOR A WRIT OF HABEAS CORPUS

DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

This case is on remand from the United States Court of Appeals for the Sixth Circuit. Marcus Mandelle Kelley (“Petitioner”), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his attorney Phillip D. Comorski, challenging his convictions for two counts of delivery of 50 grams or more, but less than 450 grams, of cocaine, M.C.L. § 333.7401(2) (a)(iii), two counts of delivery of less than 50 grams of cocaine, M.C.L § 333.7401(2)(a)(iv), and one count of conspiracy to deliver 50 grams or more, but less than 450 grams, of cocaine, M.C.L. § 750.157a; M.C.L. § 333.7401(2)(a)(iii). For the reasons that follow, the Court GRANTS petitioner's motion to amend the petition for a writ of habeas corpus. See ECF No 24, PageID.1365-1369. The amended petition for a writ of habeas corpus is GRANTED.

I. Procedural History

Petitioner was convicted following a jury trial in the Oakland County Circuit Court. Petitioner's conviction was affirmed on direct appeal. People v. Kelley, No. 310325, 2013 WL 5763056 (Mich. Ct. App. Oct. 24, 2013); lv. den. 495 Mich. 950, 843 N.W.2d 516 (2014); reconsideration den. 497 Mich. 857, 852 N.W.2d 160 (2014).

Petitioner then filed a post-conviction motion for relief from judgment with the trial court, pursuant to M.C.R. 6.500, et. seq., which was denied. People v. Kelley, No. 11-236105-FH (Oakland County Circuit Court, Jan. 5, 2016); reconsideration den. No. 11-236105-FH (Oakland County Circuit Court, Feb. 2, 2016). The Michigan appellate courts denied petitioner leave to appeal. People v. Kelley, No. 334239 (Mich. Ct. App. Dec. 21, 2016); lv. den. 501 Mich. 924, 903 N.W.2d 563 (2017); reconsideration den. 501 Mich. 1041, 908 N.W.2d 895 (2018).

Petitioner filed a petition for a writ of habeas corpus. This Court granted the petition, finding that the prosecutor or the police violated Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 153 (1972) by withholding or failing to disclose that the officer in charge of the case, Detective Mark Ferguson, lied in a prior drug matter and was being investigated by the Oakland County Sheriff's Department and that appellate counsel had been ineffective for failing to raise a Brady claim on petitioner's appeal of right. Kelley v. Burton, 377 F.Supp.3d 748 (E.D. Mich. 2019).

The Sixth Circuit reversed and remanded the case to this Court, finding that this Court erred in recasting petitioner's perjury claim as a Brady claim, because the original petition did not contain a Brady withholding claim. Kelley v. Burton, 792 Fed.Appx. 396, 397 (6th Cir. 2020). Significantly, the Sixth Circuit indicated that they “express no views as to the viability of such a claim (including whether, as the state suggests, it is procedurally defaulted).” Id., at 397, n. 2.

On remand, the case was reopened and the parties were ordered to file supplemental briefs. Petitioner's counsel filed a supplemental brief which is construed in part as a motion to amend the petition to include a Brady claim. (ECF No. 24). Respondent filed a response to the supplemental brief. (ECF No. 25).

II. Discussion

A. The amended petition was timely filed. The motion to amend is GRANTED.

Petitioner filed a supplemental brief, in which he specifically argues that the prosecutor or the police violated Brady v. Maryland, 373 U.S. 83, 87 (1963) by withholding or failing to disclose that Detective Mark Ferguson lied in a prior drug matter and was being investigated by the Oakland County Sheriff's Department and that appellate counsel had been ineffective for failing to raise a Brady claim on the appeal of right. He requests to file an amendment to the original petition.

Respondent objects to the amendment of the petition. Respondent acknowledges that petitioner's original habeas petition, including the perjury claim contained in the original petition, was filed in compliance with the one year statute of limitations for filing habeas petitions, but argues that the amended petition should be denied because petitioner's counsel filed the amended petition after the one year period for filing habeas petitions elapsed.

In the statute of limitations context, “dismissal is appropriate only if a complaint clearly shows the claim is out of time.” Harris v. New York, 186 F.3d 243, 250 (2d Cir.1999); see also Cooey v. Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007).

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year statute of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a state court. The one year statute of limitation shall run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

The parties all agree that the original habeas petition, which included a claim that petitioner was denied Due Process when Detective Ferguson committed perjury by failing to disclose that he was the subject of an ongoing investigation in that he had lied in a prior drug matter, was filed in compliance with the one year limitations period. Petitioner argues that his new Brady claim and the related ineffective assistance of appellate counsel claim should relate back to the original timely filed habeas petition. Respondent disagrees.

When a habeas petitioner files an original petition within the one-year deadline, and later presents new claims in an amended petition that is filed after the deadline passes, the new claims will relate back to the date of the original petition only if the new claims share a “common core of operative facts” with the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005).

Petitioner's Brady claim alleges that the prosecutor or the police withheld information that Detective Ferguson was under investigation by the Oakland County Sheriff's Department for lying in a prior drug case and that appellate counsel was ineffective for failing to raise this claim on the appeal of right. Petitioner's Brady claim shares a “common core of operative facts” with his perjury claim that he raised in his earlier petition and the related ineffective assistance of appellate counsel claim that he raised in that petition. The Court believes that petitioner's amended claim relates back to his earlier perjury claim “because, in the language of Rule 15(c), it clarified or amplified a claim alleged in the original petition. That is, the amended [Brady] claim. ..arose out of the same set of operative facts as the original [perjury] claim. Hill v. Mitchell, 842 F.3d 910, 924 (6th Cir. 2016)(citing Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001)).

This Court permits petitioner to amend his petition because his Brady claim and the related ineffective assistance of appellate counsel claim relate back to the timely filed perjury claim. Petitioner's proposed amended habeas petition should also be granted because it advances a new claim that may have arguable merit. See e.g. Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016).

B. Petitioner's Brady claim was properly exhausted with the state courts.

Respondent argues that petitioner's Brady claim, even if timely, was never exhausted with the state courts and is now procedurally defaulted because pursuant to M.C.R. 6.502(G), petitioner is prohibited from bringing a second post-conviction motion for relief from judgment to exhaust such a claim.

If a habeas petitioner fails to present his claims to the state courts and is now barred from pursuing relief there, the petition should not be dismissed for lack of exhaustion because there are simply no remedies available for the petitioner to exhaust. However, the petitioner will not be allowed to present claims never before presented in the state courts unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal. Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir. 1995).

A state prisoner who seeks federal habeas relief must first exhaust his available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U.S. 270, 275-78 (1971). Although exhaustion is not a jurisdictional matter, “it is a threshold question that must be resolved” before a federal court can reach the merits of any claim contained in a habeas petition. See Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). Therefore, each claim must be reviewed by a federal court for exhaustion before any claim may be reviewed on the merits by a federal court. Id.

A claim may be considered “fairly presented” only if the petitioner asserted both...