Harris v. Morrison

1

LARRY DEVONTE HARRIS, Petitioner, v. BRYAN MORRISON, Respondent.

No. 1:22-cv-820

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

January 5, 2023

OPINION

Paul L. Maloney United States District Judge

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (discussing that the district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).

The Court may sua sponte dismiss a habeas action as time-barred under 28 U.S.C. § 2244(d). Day v McDonough, 547 U.S. 198, 209 (2006). After undertaking the review required by Rule 4, the Court concluded that the petition appeared to be untimely-more than two months late-and, thus, barred by the one-year statute of limitations. Nonetheless, the Court permitted Petitioner, by way of an opinion and order to show cause (ECF Nos. 6 and 7), an opportunity to demonstrate why his petition should not be dismissed as untimely.

Petitioner has filed a response to the order to show cause, arguing that he was hampered in his efforts to file his petition by restrictions put in place because of the COVID-19 pandemic and by the eventual closure of his facility and transfer from the Michigan Reformatory to the Lakeland Correctional Facility. He characterizes the restrictions and transfers as state-created impediments that stood in the way of the timely filing of his habeas petition.

As set forth fully below, upon further examination, the Court determines that the petition was not more than two months late as set forth in the previous opinion; it was about two weeks late. Moreover, the Court finds that Petitioner has failed to demonstrate any reason to equitably toll the period of limitation, nor has he supported his claim that a state-created impediment stood in the way of his timely filing of the petition. Accordingly, the Court concludes that the petition is properly dismissed as untimely.

Nonetheless because a delay of about two weeks presents a much closer question than a delay of months, the Court will also, in the alternative, conduct a Rule 4 preliminary review of the petition on the merits. Considering the petition on the merits, it is properly dismissed for failure to raise a meritorious federal claim.

Discussion

I. Statute of limitations

Petitioner Larry Devonte Harris is incarcerated with the Michigan Department of Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. On March 7, 2018, following a three-day jury trial in the Kent County Circuit Court, Petitioner was convicted of domestic violence, in violation of Mich. Comp. Laws § 750.814 interfering with electronic communications, in violation of Mich. Comp. Laws § 750.540, and felonious assault, in violation of Mich. Comp. Laws § 750.82. On May 1, 2018, the court sentenced Petitioner as a fourth-habitual offender, Mich. Comp. Laws § 769.12, to concurrent sentences of 12 to 70 years for domestic violence, 4 to 15 years for felonious assault, and 2 to 15 years for interfering with electronic communications. Those sentences, in turn, were to be served consecutively to sentences for which Petitioner was on parole when he committed the present offenses.

On September 1, 2022, Petitioner filed his habeas corpus petition. The instant petition, however, was not Petitioner's first. On June 3, 2021, Petitioner filed his first habeas corpus petition raising four grounds for relief, as follows:

I. An arrest warrant was issued in violation of the Fourth Amendment. Affiant knowingly falsified a material fact in her affidavit warrant which was necessary to the finding of probable cause, to prosecute one who is actually innocent.

II. Petitioner was deprived of effective assistance of counsel [because] defense trial counsel failed to investigate and present Fourth Amendment claim and file proper pretrial motions.

III. Petitioner was maliciously prosecuted in violation of the Fourth and Fourteenth Amendments. [P]olice detective and prosecutor manufactured probable cause by fabricating evidence and using false testimony to arrest, try, and convict one who is actually innocent.

IV. Trial counsel deprived Petitioner of effective assistance of counsel [because] trial counsel failed to impeach the state's witness[‘s] false testimony on the material fact[s] with impeachment evidence and prosecutor's false and misleading information.

Pet., Harris v. Skipper, No. 1:21-cv-460 (W.D. Mich.), (ECF No. 1, PageID.6-10.) Petitioner supplemented his initial four habeas grounds with two additional grounds:

V. Prosecutors misrepresented evidence (photo of knife). Investigating officers took pictures of a knife and a bathroom door with holes in it because the allege[d] victim reported that the petitioner stabbed the door with [the] knife, but prosecutors represented to the courts and jury that the photo of [the] knife was taken because it was used to assault the victim by holding it to her throat.

VI. Trial counsel deprived petitioner of effective assistance of counsel . . . [because counsel] fail[ed] to adequately investigate and compare photographic evidence and elicit testimony or make arguments about discrepancies in evidence, and for failure to challenge the prosecution's proof on an element of the crime.

Suppl., Harris v. Skipper, No. 1:21-cv-460 (W.D. Mich.), (ECF No. 4, PageID.28-29.)

Based on Petitioner's representations in the petition, the Court concluded that Petitioner had not exhausted his state court remedies with regard to any of the issues raised in the petition. He had raised at least two-habeas grounds I and III-by way of a motion for relief from judgment that the trial court denied on March 29, 2021. When the Court reviewed the petition, the time for Petitioner to file an application for leave to appeal in the Michigan Court of Appeals had not yet expired.

The Court considered whether the petition should be held in abeyance while Petitioner exhausted his state court remedies. The propriety of that relief depended on the time remaining in Petitioner's period of limitation. Because Petitioner had several months remaining in the period of limitation, the Court dismissed the petition without prejudice so that Petitioner might exhaust his state court remedies. Op., Harris v. Skipper, No. 1:21-cv-460 (W.D. Mich. June 15, 2021), (ECF No. 6, PageID.37-38.)

After the Court dismissed the petition, on July 9, 2021, Petitioner filed his application for leave to appeal to the Michigan Court of Appeals. See https://www.courts.michigan.gov/c/courts/coa/case/357773 (last visited Dec. 27, 2022). By order entered August 13, 2021, the court of appeals denied leave to appeal. Petitioner then filed an application for leave to appeal to the Michigan Supreme Court. That court denied leave by order entered January 31, 2022. People v. Harris, 969 N.W.2d 42 (Mich. 2022).

Petitioner then returned to this Court. On September 1, 2022, Petitioner filed his present habeas petition raising two grounds for habeas relief, as follows:

I. A warrant was secured in violation of the Fourth Amendment of the U.S. Const.

II. Perjured testimony was used to obtain a conviction and to create probable cause.

(Pet., ECF No. 1, PageID.5-7.)

As the Court explained in the September 22, 2022, opinion, Petitioner's application appeared to be 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). 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).

In most cases, § 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 judgment of conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Supreme Court denied his application on April 29 2020. Petitioner did not petition...