Carter v. Klee, Case Number 14–14792

286 F.Supp.3d 846

Jeffrey Durk CARTER, Petitioner,

v.Paul KLEE, Respondent.

Case Number 14–14792

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

Signed February 5, 2018

Jeffrey Durk Carter, Pro se.

Andrea M. Christensen–Brown, Laura Moody, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

DAVID M. LAWSON, United States District Judge

Michigan prisoner Jeffrey Durk Carter was convicted in 1987 of multiple counts of sexual assault, robbery, and weapons offenses and sentenced to lengthy prison terms. His convictions became final after completion of his direct appeals in 1990. In 2004, he began several rounds of post-conviction litigation in the state courts, mainly looking to have DNA evidence tested. However, he was unsuccessful, because the evidence was destroyed according to the routine practice at the time. Carter filed a petition for a writ of habeas corpus in this Court in December 2014. The warden contends, among other things, that the petition is untimely. The Court agrees, and will dismiss the petition.

I.

The Michigan Court of Appeals summarized the relevant facts of the case in its opinion on direct review:

The charges stemmed from offenses committed in Detroit against a woman and her two male friends in the early morning hours of June 1, 1986. The threesome had returned to their vehicle in the Joe Louis Arena parking structure after a Bob-lo midnight cruise, when they were approached by a uniformed man (defendant) who identified himself as a police officer. Defendant performed a field sobriety test on the driver of the vehicle, Jim Reynolds, and also informed Reynolds that a warrant was issued for his arrest due to outstanding parking tickets. Reynolds became suspicious because he did not have any outstanding tickets.

Reynolds started to walk away but defendant drew a gun. Defendant then ordered all three individuals to put their hands on the wall. Defendant stole the men's wallets and other valuables, and took the woman's purse. Defendant forced the woman into Reynolds' vehicle and drove to a remote area where he forced the woman to engage in various sexual acts. Defendant then drove to a motel where he again forced the woman to engage in sexual acts involving penetration. Afterwards, defendant drove the woman to an area near Woodward Avenue and dropped her off.

Reynolds' vehicle was recovered four days later. Items found inside the vehicle included a police-type jacket with defendant's name inscribed on it, pieces of paper and handwritten business cards with defendant's name on them, handcuffs, a starter pistol, several rounds of live ammunition for other weapons, and a police-type walkie-talkie. Defendant was arrested a short time later and transported to police headquarters. After defendant exited the police vehicle, Reynolds' wallet was found in that vehicle.

At trial, all three victims identified defendant as the perpetrator. Defendant's primary defense was the reliability of the victims' identification. Defendant, who testified on his own behalf, claimed that he was home in bed, alone, on the night in question.

People v. Carter , No. 99440, *1–2 (Mich. Ct. App. Aug. 14, 1989).

Carter filed a direct appeal in the Michigan Court of Appeals raising claims concerning the jury instructions, the admission of certain expert testimony, the prosecutor's reference to his post-arrest assertion of his rights to silence and counsel, improper rebuttal testimony, the admission of other acts testimony, the prosecutor's closing argument, the prosecutor's comments on his testimony, the sufficiency of the evidence, trial counsel's failure to seek suppression of the victims' pretrial identifications, and the validity of his sentence. The court affirmed his convictions and sentences, id. at *2–12, and the Michigan Supreme Court denied leave to appeal, People v. Carter , No. 87341 (Mich. S.Ct. May 30, 1990).

In 2004, Carter filed the first in a series of post-conviction motions, beginning with a motion to produce DNA evidence in the state trial court. The trial court conducted a hearing, found that the potential evidence was destroyed before the enactment of a 2001 law requiring biological evidence to be retained for the period of a convict's incarceration, ruled that there was no bad faith by the prosecution, and dismissed the motion. See People v. Carter , No. 86–04185, Hrg. Tr. at 9 (Wayne Co. Cir. Ct. Nov. 10, 2004). The court stated that the dismissal was without prejudice to the petitioner filing a motion for new trial. Id. at 9–10.

In 2006, Carter filed a motion for new trial in the state trial court raising claims concerning the effectiveness of trial counsel, the legality of his arrest, and the legality of the search and seizure of evidence. The trial court denied the motion, holding that Carter did not demonstrate good cause and prejudice under Michigan Court Rule 6.508(D)(3). People v. Carter , Nos. 86–04185, 86–04186 (Wayne Co. Cir. Ct. April 24, 2007). The court of appeals denied Carter's ensuing delayed application for leave to appeal because he "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Carter , No. 281571 (Mich. Ct. App. Feb. 15, 2008). The supreme court denied leave to appeal on July 29, 2008. People v. Carter , 482 Mich. 894, 753 N.W.2d 206 (2008).

In 2009, Carter filed a motion to introduce DNA evidence and for an evidentiary hearing in the state trial court to explore allegations of ineffective assistance of counsel. The court construed it as a motion for relief from judgment. Carter raised claims concerning DNA evidence from the crime scene, the effectiveness of trial counsel in several respects, the legality of his arrest, and the validity of the search and seizure of evidence. The trial court denied the motion, finding that because the claims lacked merit, Carter failed to establish prejudice under Michigan Court Rule 6.508(D)(3). People v. Carter , No. 86–04185 (Wayne Co. Cir. Ct. Jan. 8, 2010). The record does not show that Carter appealed that decision.

In 2010, Carter filed a motion for discovery in the state trial court seeking records, which was denied because the state trial record was given to appellate counsel during direct appeal. People v. Carter , No. 86–4185 (Wayne Co. Cir. Ct. July 12, 2010).

In 2011, Carter filed another motion for a new trial in the trial court under Michigan Court Rule 6.431, and a motion under Michigan Compiled Laws § 770.16 for DNA testing of blood and semen found on the victim's panties. The court denied the request for DNA testing because the evidence was no longer available for testing and was destroyed between 1986 and 2001 before the law required its preservation. The court denied the motion for new trial because it was untimely under state law. People v. Carter , Nos. 86–04185, 86–04186 (Wayne Co. Cir. Ct. June 23, 2011).

In 2013, Carter filed a motion for investigation by a state court administrator under Michigan Court Rule 8.113, which was denied. People v. Carter , No. 86–04185 (Wayne Co. Cir. Ct. December 18, 2013). Also in 2013, he filed a complaint for superintending control in the Michigan Court of Appeals, which was denied. In re Carter , No. 318809 (Mich. Ct. App. Jan. 23, 2014). He did not appeal that decision.

On December 15, 2014, Carter signed and dated the present federal habeas petition; it was deem filed on that date. Ingram v. Barrett , No. 15-11074, 2015 WL 1966470, at *1 (E.D. Mich. Apr. 29, 2015) ("Under the ‘prison mailbox rule,’ papers mailed to the Clerk by a prisoner are deemed to be filed on the day they are dated and signed even if received and docketed on a later date.") (citing Williams v. Birkett , 670 F.3d 729, 732 n.1 (6th Cir. 2012) ; Hudson v. Martin , 68 F.Supp.2d 798, 800 n.2 (E.D. Mich. 1999) ). The Warden says, among other things, that the filing was too late.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became effective on April 24, 1996 and governs the filing date for this action because the petitioner filed his petition after the AEDPA's effective date. See Lindh v. Murphy , 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA amended 28 U.S.C. § 2244 to include a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Vroman v. Brigano , 346 F.3d 598, 601 (6th Cir. 2003). The one-year statute of limitations runs 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). A habeas petition filed outside the prescribed time period must be dismissed. See Isham v. Randle , 226 F.3d 691, 694–95 (6th Cir. 2000) (case filed 13 days after limitations period expired dismissed for failure to comply); Wilson v. Birkett , 192 F.Supp.2d 763, 765 (E.D. Mich. 2002).

Carter argues that a few of the limitations period triggers apply here. The Court will discuss each of them in turn.

A. Finality of the Conviction

Carter's convictions became final in 1990 when his direct appeal came to an end. Because that occurred before the AEDPA was enacted, he was entitled to a one-year grace period, beginning on April 24, 1996, to file his habeas petition or a motion for post-conviction relief that would toll the...