Robinson v. Brown

• Decision Date: 25 October 2021
• Docket Number: 1:20-cv-878
• Parties: TRON ROBINSON, Petitioner, v. MIKE BROWN, Respondent.
• Court: U.S. District Court — Western District of Michigan

TRON ROBINSON, Petitioner,
v.
MIKE BROWN, Respondent.

No. 1:20-cv-878

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

October 25, 2021

REPORT AND RECOMMENDATION

SALLY J. BERENS, U.S. Magistrate Judge

Petitioner Tron Robinson is incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility (KCF) in Kincheloe, Michigan. On September 4, 2020, ^[1] Petitioner filed his habeas corpus petition raising four grounds for relief, as follows:

I. Defense counsel was ineffective for failing to challenge a bias[ed] juror

II. Defense counsel was ineffective in failing to stipulate to an undisclosed felony conviction

III. Defense counsel was ineffective for failing to move for [a] mistrial

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IV. [The] trial court violated [Petitioner's] due process rights . . . [by permitting] jurors to ask questions of witnesses during trial.

V. Trial counsel failed to object to the constitutionally defective complaint and information brought by the state, and failed to object to the due process violation nature of the habitual offender enhancement of the sentence imposed against Petitioner.

(Pet., ECF No. 1, PageID.6-10, 16.)^[2]

Respondent has moved to dismiss the petition as untimely. (ECF No. 8.) I find that the petition is untimely because more than one year passed after Petitioner's judgment became final, even taking into account statutory tolling for the time Petitioner's motion for collateral review was pending. But I also recommend that the Court equitably toll the period of limitation such that the actual mailing of the petition on September 4, 2020, would be deemed timely. Therefore, I recommend that Respondent's motion to dismiss the petition as untimely be denied.

Addressing the merits of the petition, upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), 1 find that the grounds are meritless. Accordingly, I recommend that the petition be denied.

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Discussion

I. Factual allegations

According to Petitioner, “the prosecution claimed to the jury that Mr. Robinson and an accomplice, Tiffany Plushnik, broke into the residence of Gregory Katz through a second story window, that Petitioner shot the complainant's dog, and that Mr. Robinson and this Accomplice stole a compound hunting bow.” (Pet'r's Br., ECF No. 2, PageID.72.) Petitioner does not challenge the sufficiency of the evidence; thus a more detailed recitation of the facts is not necessary to address Petitioner's habeas grounds.

Following a two-day jury trial in the Calhoun County Circuit Court, Petitioner was convicted of first-degree home invasion, in violation of Mich. Comp. Laws § 750.110a(2); felon in possession of a firearm (felon-in-possession), in violation of Mich. Comp. Laws § 750.224f; killing an animal without just cause, in violation of Mich. Comp. Laws § 750.50b(2)(a); and possession of a firearm during the commission of a felony (felony firearm), in violation of Mich. Comp. Laws § 750.227b(1). Petitioner was initially sentenced on October 22, 2012. Then, following a remand from the Michigan Court of Appeals, he was resentenced on August 23, 2013. Finally, following a remand from the Michigan Supreme Court, Petitioner was sentenced one last time on February 1, 2016. Ultimately, the court sentenced Petitioner to concurrent prison terms of 16 years, 8 months to 40 years for first-degree home invasion; 4 years, 9 months to 10 years for felon-in-possession; and 3 years, 7 months to 8 years for killing an animal without just cause. The court also sentenced Petitioner to a consecutive sentence of 2 years for the felony-firearm conviction.

Petitioner made three complete trips through the Michigan appellate process after his resentencing on August 23, 2013. The Michigan Court of Appeals rejected the challenges to his convictions-challenges that are presented here as habeas grounds I through IV-and a challenge

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to his sentence based on Alleyne v. United States, 570 U.S. 99 (2013). (Mich. Ct. App. Op., ECF No. 9-12, PageID.494-498.) Thereafter, Petitioner filed an application for leave to appeal to the Michigan Supreme Court. That court denied leave as to all issues except the Alleyne sentencing claim. (Mich. Order, ECF No. 9-13, PageID.784.) With regard to that claim, the court reversed the sentence and remanded the case to the trial court for resentencing in light of the court's recent decision in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). (Id.)

After Petitioner was resentenced the second time, he took another pass through the Michigan appellate courts. Petitioner challenged the scoring of one offense variable, and he raised ineffective assistance of counsel claims, including the claims he raises here as habeas ground V. The court of appeals rejected Petitioner's sentencing guidelines scoring challenge and refused to consider his other claims because they were outside “the scope of the remand.” (Mich. Ct. App. Op., ECF No. 9-14, PageID.917.) Petitioner again filed an application for leave to appeal to the Michigan Supreme Court. That court denied leave by order entered January 3, 2018. (Mich. Order, ECF No. 9-15, PageID.1034.)

Petitioner then filed his first petition in this Court. Robinson v. MacLaren, No. 2:18-cv-203 (W.D. Mich.) (Robinson I) (Pet., ECF No. 1). The Court dismissed the petition because present habeas ground V had not been exhausted in the state courts because Petitioner presented in a procedural context that rendered consideration on the merits unlikely. Robinson I (Op., ECF No. 4.) The Court advised Petitioner to return to the state trial court to file a motion for relief from judgment and, if that motion were denied, to pursue appeals through the Michigan Supreme Court. Robinson I (Id.) Because Petitioner still had more than 60 days remaining in his period of limitation, the Court declined to stay Robinson I pending Petitioner's exhaustion of the unexhausted claim.

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Petitioner returned to the trial court and, on February 4, 2019, filed a motion for relief from judgment raising habeas ground V. (Pet'r's Mot. for Relief from J., ECF 9-10.) By order entered February 20, 2019, the trial court denied the motion because it was “found to be without merit.” (Calhoun Cnty. Cir. Ct. Order, ECF No. 9-11, PageID.493.) Petitioner sought leave to appeal that decision in the Michigan Court of Appeals and then the Michigan Supreme Court. Those courts denied leave by orders entered September 24, 2019, and June 17, 2020, respectively. (Mich. Ct. App. Order, ECF No. 9-16, PageID.1073; Mich. Order, ECF No. 9-17, PageID.1138.)

Petitioner then returned to this Court; but instead of filing a new habeas petition, he filed a motion to reopen Robinson I. Because that petition had been dismissed, rather than stayed, the Court denied the motion to reopen and instructed Petitioner to file a new petition. In his motion to reopen, Petitioner represented that he had filed his motion for relief from judgment on January 14, 2019. Robinson I (Pet'r's Mot., ECF No. 7, PageID.106.) Because the filing of the motion tolled the running of the period of limitation, 28 U.S.C. § 2244(d)(2), based on the filing date provided by Petitioner, the Court determined Petitioner's period of limitation would expire on September 5, 2020. Robinson I (Order, ECF No. 9, PageID.111-112) (“Petitioner is advised, however, that based upon his description of the proceedings in the state court, . . . he must file his new petition on or before September 5, 2020.”).

Petitioner misstated the date he filed his motion for relief from judgment. In the present petition he represents-and the state court docket reflects-that the motion was filed on February 4, 2019. Accordingly, the petition was not due on September 5, 2020, it was due three weeks earlier. On that ground, Respondent has moved to dismiss the petition as untimely.

II. Habeas statute of limitations

The one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the AEDPA, provides:

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(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period 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).

In most cases, Section 2244(d)(1)(A) provides the operative date from which the one-year limitations period is measured. Under that provision, the one-year limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed the eventual last judgment of conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Supreme Court denied his application on January 3, 2018. Petitioner did not petition for certiorari to the United States Supreme Court. The one-year limitations period, however, did not begin to run until the ninety-day period in which Petitioner could have sought review in the United...