Willis v. Trierweiler

• Decision Date: 14 September 2021
• Docket Number: 2:17-cv-10390
• Parties: DORIAN DELBERT-GERALD WILLIS, Plaintiff, v. TONY TRIERWEILER, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

DORIAN DELBERT-GERALD WILLIS, Plaintiff, v. TONY TRIERWEILER, Defendant.

No. 2:17-cv-10390

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

September 14, 2021

OPINION AND ORDER GRANTING MOTION FOR RECONSIDERATION AND ALLOWING AMENDED PETITION [25], DENYING PETITION FOR WRIT OF HABEAS CORPUS [1, 24], DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE

After attempting to start a fire at his girlfriend's residence Dorian Delbert-Gerald Willis (“Willis”) was convicted of arson, domestic violence, and being a fourth felony habitual offender, following a jury trial in the Macomb County Circuit Court. Willis has now filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions.

Having reviewed the pleadings and state-court record, the Court finds that the state courts reasonably concluded that the claims raised in Willis' original petition were without merit. The Court summarily dismisses the claims raised in the amended petition because they are conclusory and wholly unsupported. The Court will thus deny Willis's petition.

I. Background

The following facts as recited by the Michigan Court of Appeals are presumed correct on habeas review. Wagner v Smith, 581 F.3d 410, 413 (6th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)).

Defendant's convictions arise from a fire that was started in the closet of Vickie Lynn Danski's residence. Defendant and Danski were involved in a romantic relationship. On October 23, 2012, after drinking alcohol, the couple got into an argument. Defendant choked Danski, but she managed to run out of the home. Defendant followed and again assaulted her. She convinced him to let her go. Defendant returned to the porch of Danski's residence and instructed her to return to the home or he would kill her three ferrets. Danski remained outside her home and later heard someone running. When the person got to an illuminated area, she could see that it was defendant, who was yelling on a phone and asking someone to pick him up. Danski returned to her home, found that it was locked, but entered with her front door key. She was in the home for two minutes when she smelled smoke. When she opened a closet, flames rose out from inside. Danski managed to retrieve her three ferrets and went to a neighbor's home for help. Arson investigators determined that the fire originated inside the closet. There was no evidence that an accelerant was used to start the fire, but a propane torch was discovered inside the closet where the fire started. Investigators ruled out electrical, mechanical, gas, or other accidental causes of the fire. They concluded from the burn pattern that the fire was intentionally set with the propane torch.

Defendant testified that he was in a paranoid state and believed that Danski had called the police. Before the police arrived, he went into the closet to smoke crack cocaine with the propane torch because he did not want to be caught with it or seen through the windows. He denied intentionally starting the fire.

People v. Willis, No. 319616, 2015 WL 4064268, at *1 (Mich. Ct. App. July 2, 2015). The conviction was affirmed on appeal. Id., lv. den., 873 N.W.2d 583 (2016).

Willis filed his original petition seeking a writ of habeas corpus on February 9, 2017. (ECF No. 1.) He seeks relief on seven grounds, which the Court refers to as his “2017 Claims”:

I. [Willis] is entitled to entry of a judgment of acquittal on the arson charge as there was insufficient evidence to support the charge.

II. [Willis] is entitled to habeas relief where the verdict is against the great weight of the evidence; due to the prosecutor withholding of discovery materials until the second day of trial.

III. [Willis] is entitled to habeas relief where he was denied the right of self-representation, and the trial court failed to make a mandatory inquiry as established by the United States Constitution Sixth and Fourteenth Amendments.

IV. [Willis] is entitled to habeas relief where jury's instructions on presumption of innocence was omitted; trial counsel was ineffective where he failed to specifically request (a) corrected jury instruction on presumption of innocence.

V. [Willis'] Fourth Amendment right to be free from illegal search and seizure was violated; where the fire marshals failed to obtain a warrant to search [Willis'] premises. Trial court failed to provide [Willis] with an adequate remedy to address [Willis'] Fourth Amendment claim.

VI. [Willis] was denied his Sixth Amendment right to proceed to trial with counsel of his choice; violating his right to due process of law protected under both state and federal constitutions.

VII. [Willis] is illegally detained; where the affidavit submitted to the magistrate judge for an arrest warrant was false and composed of inaccurate information, trial attorney was ineffective for failing to challenge issuance of the [arrest] warrant.

(Id.)

On May 31, 2018, the Court granted Willis's motion to hold the petition in abeyance so that he could return to the state courts to exhaust additional claims, which the Court refers to as his “2018 Claims.” (ECF No. 16.). Willis filed a postconviction motion for relief from judgment with the Macomb County Circuit Court in 2018, which was denied. The Michigan appellate courts denied leave to appeal. People v. Willis, No. 347549 (Mich. Ct. App. June 19, 2019); lv. den., 937 N.W.2d 651 (2020); reconsideration den. 943 N.W.2d 117 (2020). So Willis successfully exhausted the 2018 claims on May 26, 2020. See People v. Willis, 943 N.W.2d 117 (Mich. 2020).

Rather than filing an amended petition to add his 2018 claims, Willis then requested an extension of the stay to exhaust a third set of claims based on newly discovered evidence, which he claimed he only learned about after the conclusion of his first state post-conviction proceedings. (ECF No. 18.) The Court denied the request to exhaust a third set of claims, concluding that Willis had failed to demonstrate that his latest proposed claims were meritorious; nor did he show good cause for failing to raise them sooner (ECF No. 19.) The Court allowed Willis two further extensions to file an amended petition to add the 2018 claims (ECF No. 19, 21), with a final deadline of July 28, 2021 (ECF No. 21, PageID.1274).

The Court did not receive an amended petition by that date, so on July 28, 2021, the Court lifted the stay and ordered that it would only consider Willis's original 2017 claims. (ECF No. 22.)

But a month later, mail from Willis arrived at the Court, indicating that Willis had in fact met the deadline. On August 19th, the Court received an Amended Petition dated June 24th. (ECF No. 24, PageID.1354-1355.) On September 7, 2021, the Court received another copy of the Amended Petition and a Motion for Reconsideration of the Court's order lifting the stay and reopening the case for the 2017 claims only. (ECF Nos. 25, 26.)

The Court will first address the motion for reconsideration, and then turn to the merits of Willis's habeas petition.

II. The Motion for Reconsideration

To prevail on a motion for reconsideration, a movant must show the existence of a palpable defect that misled the parties and court and the correction of such defect would result in a different disposition of the case. E.D. Mich. L.R. 7.1(h)(3). A defect is palpable if it is “obvious, clear, unmistakable, manifest, or plain.” Olson v. Home Depot, 321 F.Supp.2d 872, 874 (E.D. Mich. 2004).

Willis asks the Court to accept his Amended Petition, which adds the 2018 claims. (ECF No. 25.) He states that he met the Court-imposed deadline for filing the amended petition. (Id.). Willis has attached documentation showing that he placed the amended petition into the prison mail system for mailing on June 24, 2021. (Id., PageID.1364, 1366-67).

Under the “prison mailbox rule, ” submissions by pro se petitioners are considered filed at the moment of delivery to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 271-72 (1988). While the Court did not timely receive Willis's amended petition, that does not appear to be the fault of Willis. He has presented evidence of timely filing and thus, the Court GRANTS Willis's motion for reconsideration (ECF No. 25) and accepts the Amended Petition (ECF No. 24).

III. The Habeas Petitions

The Court therefore turns to the merits of Willis's petition for a writ of habeas corpus. Willis's Amended Petition adds eight new grounds for relief in addition to the seven originally raised. (See ECF Nos. 1, 24.) The Court will address the two sets of claims separately because Willis has submitted very different briefing for each.

A. The New 2018 Claims

Despite the additional time he was given, Willis's Amended Petition simply lists the new claims. It contains no evidentiary support or legal argument.

But “habeas corpus petitions must meet heightened pleading requirements.” McFarland v. Scott, 512 U.S 849, 856 (1994). A § 2254 petition has to “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.” Rules Governing § 2254 Cases, Rule 4, Rule 2(c). A district court must dismiss a habeas petition without ordering a responsive pleading “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rules Governing § 2254 Cases, Rule 4. Thus, “Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland, 512 U.S. at 856; see also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has duty to “screen out” petitions that lack merit on their face). A...