Woodley v. Maclaren

• Decision Date: 31 May 2016
• Docket Number: Case No. 2:13-cv-350
• Parties: DEREK WOODLEY, Petitioner, v. DUNCAN MACLAREN, Respondent.
• Court: U.S. District Court — Western District of Michigan

DEREK WOODLEY, Petitioner, v. DUNCAN MACLAREN, Respondent.

Case No. 2:13-cv-350

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

May 31, 2016

HON. R. ALLAN EDGAR

MEMORANDUM AND ORDER

Petitioner Derek Woodley, filed this petition for writ of habeas corpus challenging his December 17, 2008, convictions for first degree murder, Mich. Comp. Laws § 750.316(1)(a), assault with intent to commit murder, Mich. Comp. Laws § 750.83, and two counts of use of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to mandatory life imprisonment without parole on his first degree murder conviction, a 25 to 50 year term of imprisonment on his assault conviction and consecutive two year terms of imprisonment on his felony firearm convictions.

Petitioner argues that he is actually innocent because his shotgun accidently discharged while he was reloading after shooting at the police officers outside of his bedroom who had entered his residence to conduct a check of Lindsay Knight, at the request of her mother. The police officers entered the residence after two house guests let them inside. Petitioner asserts that when his gun discharged he shot Lindsay Knight at close range in the head, accidentally killing her. Petitioner was arrested after a seven hour stand-off when he surrendered the next morning. Petitioner claimed that the shooting was an accident. The jury did not believe Petitioner's assertion of an accidental discharge of his shotgun and convicted Petitioner of first degree premeditated murder. Petitioner submitted a December 2000, recall notice from the manufacturer of his shot gun showing that the gun was under recall because it could accidentally discharge during loading. PageID.45

Petitioner asserts:

I. Petitioner was denied the effective assistance of trial counsel.

II. The prosecution failed to disclose evidence necessary for Petitioner to establish the truth.

III. Petitioner's convictions for first degree murder and assault with intent to commit murder are against the great weight of the evidence.

IV. Petitioner was denied his right to have a properly instructed jury when the trial court failed to give a jury requested re-instruction.

V. Petitioner was denied his right to allocution at sentencing.

VI. The prosecution's use of post-Miranda silence during closing argument as substantive evidence of guilt violated Petitioner's right against self-incrimination.

VII. The trial court abused its discretion in refusing to admit relevant evidence that the victim's parents had a child protective case for abusing and neglecting the victim.

VIII. The Petitioner was denied due process of law when the prosecutor elicited testimony that the Petitioner had allegedly made threats toward the victim.

IX. The Petitioner was denied the effective assistance of appellate counsel.

Respondent asserts that Petitioner's application is barred by 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 Antiterrorism and Effective Death Penalty Act, PUB. L. NO. 104-132, 110 STAT. 1214 ("AEDPA"). The one-year statute of limitations provided in § 2244(d)(1) is new, as there previously was no defined period of limitation for habeas actions.¹ Section 2244(d)(1) provides:

(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). The running of the statute of limitations is tolled when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); see also Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120 (2001) (limiting the tolling provision to only State, and not Federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining "properly filed").

The one-year limitations period applicable to § 2254 is a statute of limitations subject to equitable tolling. See Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009); Keenan v. Bagley, 400 F.3d 417, 420 (6th Cir. 2005). A petitioner bears the burden of showing that he is entitled to equitable tolling. See Keenan, 400 F.3d at 420; Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Sixth Circuit repeatedly has cautioned that equitable tolling should be applied "sparingly" by this Court. See Sherwood v. Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009); Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). A petitioner seeking equitable tolling of the habeas statute of limitations has the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Lawrence, 549 U.S. at 335 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Akrawi, 572 F.3d at 260.

Petitioner concedes that without equitable tolling his petition would be considered filed late. On December 20, 2010, the Michigan Supreme Court denied Petitioner leave to appeal the judgment of the Michigan Court of Appeals, affirming his convictions. PageID.2247. Petitioner filed a motion for relief from judgment in the Allegan County Circuit Court on April 27, 2011. The Circuit Court denied Petitioner's motion on June 9, 2011. PageID.2066. Petitioner asserts that he did not receive that order until after he inquired with the court on June 1, 2012, and on June 27, 2012. Petitioner asserts that he received a letter dated July 2, 2012, informing him for the first time that his motion for leave to appeal was denied. Petitioner filed a motion for re-issuance of the June 9, 2011, order. Petitioner never received a response from the trial court.

Petitioner filed leave to appeal in the Michigan Court of Appeals which was denied for lack of jurisdiction on September 5, 2012. Petitioner's application for leave to appeal in the Michigan Supreme Court was filed on September 24, 2012. The Michigan Supreme Court deniedthe application on September 3, 2013. PageID.2617. This petition was filed on November 18, 2013.

The one-year limitations period applicable to § 2254 is a statute of limitations subject to equitable tolling. See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010); Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009); Keenan v. Bagley, 400 F.3d 417, 420 (6th Cir. 2005). A petitioner bears the burden of showing that he is entitled to equitable tolling. See Keenan, 400 F.3d at 420; Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Sixth Circuit repeatedly has cautioned that equitable tolling should be applied "sparingly" by this Court. See Hall v. Warden, No. 09-3372, slip op. at 5 (6th Cir. Nov. 30, 2011); Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010); Sherwood v. Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009); Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). A petitioner seeking equitable tolling of the habeas statute of limitations has the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Holland, 2010 WL 2346549, at *12 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Lawrence, 549 U.S. at 335; Hall, slip op. at 7; Akrawi, 572 F.3d at 260.

Crediting Petitioner's assertion that he did not find out about the June 5, 2012, denial of his motion for relief from judgment until July 2012, equitable tolling would be appropriate. Petitioner was acting pro se during this time period. Further, Petitioner filed his appeals soon after he allegedly first learned of the denial of his motion for relief from judgment. If the court credits Petitioner's assertions and accepts that he was diligent in pursuing his rights then equitable tolling would apply in this case and the petition may be considered timely filed. The petition, however, fails on the merits of the claims presented.

In April of 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective. Because this petition was filed after the effective date of the AEDPA, this Court must follow the standard of review established in that statute. Pursuant to the AEDPA, an application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This provision marks a "significant change" and prevents the district court from looking to lower federal court decisions in determining whether the state decis...