Opinion

Beamon v. Brown

Court
District Court, E.D. Michigan
Filed
Jun 20, 2023
Cited by
0 cases
Authority
More cited than 23.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RANDALL LAMONT BEAMON,

Petitioner, CASE NO. 2:22-CV-12178

v. HONORABLE NANCY G EDMUNDS

MIKE BROWN,

Respondent.

_________________________________/

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR A WRIT OF

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Randall Lamont Beamon, (“Petitioner”), confined at the Kinross Correctional

Facility in Kincheloe, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. §

2254. In his pro se application, petitioner challenges his conviction for three counts of

assault with intent to commit murder, M.C.L.A. § 750.83, assaulting, resisting, or

obstructing a police officer causing serious impairment of a body function, M.C.L.A. §

750.81d(3), third-degree fleeing and eluding, M.C.L.A. § 257.602a(3), carrying a

concealed weapon, M.C.L.A. § 750.227, two counts of assaulting, resisting, or obstructing

a police officer, M.C.L.A. § 750.81d(1), and possession of a firearm during the

commission of a felony (felony-firearm, second offense), M.C.L.A. § 750.227b.

Respondent filed an answer to the petition. As part of the answer, respondent

argues that the petition should be dismissed, on the ground it was not timely filed in

accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1).

For the reasons that follow, the petition is SUMMARILY DIMISSED WITH

PREJUDICE.

I. Background

Petitioner was convicted of the above charges following a jury trial in the Wayne

County Circuit Court. Petitioner was also convicted of a charge of felon in possession of

a firearm. Petitioner was sentenced as a third habitual offender to concurrent prison terms

of 30 to 60 years for his assault with intent to murder convictions; 15 to 30 years for his

assaulting an officer causing serious impairment conviction; 5 to 10 years for his fleeing

and eluding, carrying a concealed weapon, and felon in possession convictions; and 2 to

4 years for each of his assaulting an officer convictions, along with a consecutive 5 year

term for his felony-firearm conviction.

The Michigan Court of Appeals affirmed all but one of petitioner’s convictions. The

Michigan Court of Appeals vacated petitioner’s felon in possession of a firearm conviction.

People v. Beamon, No. 336229, 2018 WL 3129686 (Mich. Ct. App. June 26, 2018).

Direct review of petitioner’s conviction ended on September 30, 2019, when the

Michigan Supreme Court denied petitioner leave to appeal following the affirmance of his

conviction by the Michigan Court of Appeals. People v. Beamon, 504 Mich. 971, 933

N.W.2d 298 (2019).

On September 15, 2020, the trial judge entered an amended judgment of sentence

to reflect that the felon in possession of a firearm conviction and sentence had been

vacated by the Michigan Court of Appeals. (ECF No. 9-20).

On December 9, 2019, petitioner filed a petition for a writ of habeas corpus with

the federal court. On December 22, 2020, petitioner moved to voluntarily dismiss his

petition so that he could return to the state courts to exhaust additional claims. The Court

granted the motion on January 26, 2021, and dismissed the case without prejudice. See

Beamon v. Winn, No. 4:19-CV-13615 (E.D. Mich. Jan. 26, 2021).

On September 16, 2021, petitioner filed a motion for DNA testing and a new trial,

pursuant to M.C.L.A. § 770.16. (ECF No. 9-21). The trial court denied the motion. People

v. Beamon, No. 15-010482-01-FC (Wayne Cty. Cir. Ct. Oct. 8, 2021)(ECF No. 9-23). The

Michigan Court of Appeals denied petitioner leave to appeal on March 17, 2022. People

v. Beamon, No. 359322 (Mich. Ct. App. Mar. 17, 2022)(ECF No. 9-26, PageID.1598).

The petition is signed and dated September 8, 2022.1

II. Discussion

The Court dismisses the petition because it is untimely.

In the statute of limitations context, “dismissal is appropriate only if a complaint

clearly shows the claim is out of time.” Harris v. New York, 186 F.3d 243, 250 (2nd

Cir.1999); see also Cooey v. Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007).

28 U.S.C. § 2244(d) imposes a one-year statute of limitations upon petitions for

habeas relief:

(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;

1 Under the prison mailbox rule, this Court will assume that petitioner actually filed his

habeas petition on September 8, 2022, the date that it was signed and dated. See

Towns v. U.S., 190 F.3d 468, 469 (6th Cir. 1999).

(C) the date on which the constitutional right asserted was originally

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.

Although not jurisdictional, the one year limitations period “effectively bars relief

absent a showing that the petition’s untimeliness should be excused based on equitable

tolling and actual innocence.” See Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009).

A petition for a writ of habeas corpus must be dismissed where it has not been filed within

the one year statute of limitations. See Holloway v. Jones, 166 F. Supp. 2d 1185, 1187

(E.D. Mich. 2001).

Petitioner’s direct appeal of his conviction ended when the Michigan Supreme

Court denied petitioner leave to appeal on September 30, 2019. Petitioner’s conviction

became final, for purposes of the limitations period, on the date that the 90 day time period

for seeking certiorari with the U.S. Supreme Court expired. See Jimenez v. Quarterman,

555 U.S. 113, 119 (2009). Petitioner’s judgment therefore became final on December 29,

2019, when he failed to file a petition for a writ of certiorari with the U.S. Supreme Court.

Holloway, 166 F. Supp. 2d at 1188. Absent state collateral review, petitioner was required

to file his petition for a writ of habeas corpus with this Court no later than December 29,

2020, in order for the petition to be timely filed. See Corbin v. Straub, 156 F. Supp. 2d

833, 836 (E.D. Mich. 2001).

The Court recognizes that the trial court entered an amended judgment of

sentence on September 15, 2020, which reflected that petitioner’s conviction and

sentence for felon in possession of a firearm had been reversed on appeal.

When a state court conducts a full resentencing, “the resulting sentence is a new

“judgment” that restarts § 2244(d)(1)’s timeclock.” Freeman v. Wainwright, 959 F.3d 226,

229 (6th Cir. 2020). The imposition of a new, less favorable sentence, upon a limited

resentencing, likewise amounts to a new “judgment” that restarts the one-year limitations

period for filing a federal habeas petition. Id. at 229-30. However, where a limited re-

sentencing actually benefits the habeas petitioner, such a modification does not disturb

the underlying judgment and thus does not delay the commencement of the limitations

period. Id. at 229-30 (citing Crangle v. Kelly, 838 F.3d 673, 678 (6th Cir. 2016). Moreover,

where the state court does not conduct a re-sentencing hearing and the state court does

not issue a new sentencing entry or a new judgment, a sentence modification does not

restart the one year statute of limitations. Id. at 230.

The amended judgment of sentence in this case did not delay the start of §

2244(d)(1)’s limitations period because the judge did not conduct a re-sentencing hearing.

Instead, the amended judgment simply reflected the fact that the Michigan Court of

Appeals reversed petitioner’s felon in possession of a firearm conviction. This ruling by

the Michigan Court of Appeals, and its subsequent reflection in the amended judgment,

actually benefited petitioner and hence did not amount to a new judgment that would

delay the start of the limitations period. The removal of the felon in possession conviction

by the Wayne County Circuit Court, even if it did not change petitioner’s overall sentence,

“was certainly a more beneficial outcome than retaining the conviction.” See Wright v.

Adams, No. CV 19-90-REW-CJS, 2020 WL 1536167, at *4 (E.D. Ky. Feb. 24, 2020),

report and recommendation adopted sub nom. Wright v. Adams, No. 2:19-CV-90-REW-

CJS, 2020 WL 1531377 (E.D. Ky. Mar. 30, 2020). “What is even more clear is that the

removal of this conviction did not make his sentence a ‘worse-than-before sentence.’” Id.

Accordingly, as mentioned above, petitioner’s conviction became final on December 29,

2019, and he was required to file his petition within one year of this date for it to be timely.

Petitioner filed his first habeas petition with this Court on December 9, 2019. On

December 22, 2020, he moved to voluntarily dismiss his petition so that he could return

to the state courts to exhaust additional claims. This petition was dismissed without

prejudice on January 26, 2021.

A petition for federal habeas review is not “an application for state post-conviction

or other review” within the meaning of 28 U.S.C. § 2244(d)(2) that would toll the one year

statute of limitations for habeas cases found in 28 U.S.C. § 2244(d)(1). See Duncan v.

Walker, 533 U.S. 167, 181-82 (2001). The statute of limitations was therefore not

statutorily tolled during the time that petitioner’s first habeas petition was pending in the

federal court.

Petitioner filed a motion for DNA testing and a new trial, pursuant to M.C.L.A. §

770.16 with the trial court on September 16, 2021. The trial court denied the motion and

the Michigan Court of Appeals affirmed the denial.

28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly

filed application for state post-conviction relief or other collateral review is pending shall

not be counted towards the period of limitations contained in the statute. An application

for state post-conviction relief is considered “properly filed,” for purposes of triggering the

tolling provisions of § 2244(d)(2), when “its delivery and acceptance are in compliance

with the applicable laws and rules governing filings, e.g. requirements concerning the

form of the document, the court and office in which it must be lodged, payment of a filing

fee, and applicable time limits upon its delivery.” Israfil v. Russell, 276 F.3d 768, 771 (6th

Cir. 2001).

A motion for DNA testing and/or a new trial on that basis, pursuant to M.C.L.A. §

770.16, does not toll the limitations period pursuant to § 2244(d)(2) unless the motion for

DNA testing is granted and exculpates the petitioner. Kares v. Horton, No. 2:19-CV-7,

2021 WL 3361664, at *3 (W.D. Mich. Aug. 3, 2021). “If the motion for DNA testing is

denied, or if the testing does not exculpate the defendant, then the motion for a new trial

under section 770.16 is not “properly filed” and thus does not toll the statute of limitations.”

Id.

In the present case, petitioner’s motion for DNA testing was denied. It was not a

properly filed post-conviction motion within the meaning of § 2244(d)(2) that would toll the

limitations period.

Assuming that petitioner’s motion for DNA testing qualified as a properly filed post-

conviction motion, it would not render petitioner’s habeas petition timely because it was

filed on September 16, 2021, some nine months after the limitations period expired on

December 29, 2020. A state court post-conviction motion that is filed after the limitations

period expired does not toll that period pursuant to 28 U.S.C. § 2244(d)(2) because there

is no period left to be tolled. See Jurado v. Burt, 337 F.3d 638, 641 (6th Cir. 2003); see

also Hargrove v. Brigano, 300 F.3d 717, 718, n. 1 (6th Cir. 2002); The petition is untimely.

The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate

cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A habeas petitioner is entitled to

equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way’” and prevented the timely filing

of the habeas petition. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

Petitioner is not entitled to equitable tolling of the one-year limitations period; he failed to

argue or show that the facts of his case support equitable tolling. See Giles v.

Wolfenbarger, 239 F. App’x 145, 147 (6th Cir. 2007).

The Court recognizes that petitioner previously filed a habeas petition on

December 9, 2019, that was dismissed without prejudice on January 26, 2021.

Although a petition for federal habeas review is not “an application for state post-

conviction or other review” within the meaning of 28 U.S.C. § 2244(d)(2) that would toll

the one year statute of limitations for habeas cases found in 28 U.S.C. § 2244(d)(1), See

Duncan v. Walker, 533 U.S. at 181, Justice Stevens indicated in a concurring opinion that

neither the Supreme Court’s “narrow holding” in Duncan nor anything in the text or the

legislative history of the AEDPA would prevent a federal court from tolling the limitations

period for a habeas petition as “a matter of equity.” Id. at 183.

In cases in which a stay and abeyance procedure is not employed, a habeas

petitioner is entitled to equitable tolling of the limitations period during the time that his

original habeas petition was filed in the federal court, provided that the habeas petitioner

filed his state post-conviction motion with the state courts within thirty days of the federal

court’s dismissal of the original habeas petition and returned to federal court no later than

thirty days after the conclusion of state post-conviction review. See Griffin v. Rogers, 308

F.3d 647, 653 (6th Cir. 2002)(citing Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002)).

Petitioner is not entitled to equitable tolling of the limitations period for the time that

his first habeas petition was pending in the federal court because he waited more than 30

days following the dismissal of the first petition to file his motion for DNA testing in the

state court and more importantly, waited over thirty days following the denial of his post-

conviction appeal by the Michigan Court of Appeals to file his current habeas petition.

See Palmer, 276 F.3d at 781-82.

The one year statute of limitations may be equitably tolled based upon a credible

showing of actual innocence under the standard enunciated in Schlup v. Delo, 513 U.S.

298 (1995). McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The Supreme Court has

cautioned that “tenable actual-innocence gateway pleas are rare[.]” Id. “[A] petitioner

does not meet the threshold requirement unless he persuades the district court that, in

light of the new evidence, no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.” Id. (quoting Schlup, 513 U.S., at 329). For an actual

innocence exception to be credible under Schlup, such a claim requires a habeas

petitioner to support his allegations of constitutional error “with new reliable evidence--

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence--that was not presented at trial.” Schlup, 513 U.S. at 324.

Petitioner is not entitled to tolling of the limitations period; he presented no new,

reliable evidence to establish that he was actually innocent of the crimes charged. See

Ross v. Berghuis, 417 F.3d 552, 556 (6th Cir. 2005). Petitioner’s sufficiency of evidence

claim does not establish his innocence, so as to toll the limitations period. For purposes

of tolling the limitations period, “actual innocence means factual innocence, not mere legal

insufficiency.” Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005)(quoting Bousley v.

United States, 523 U.S. 614, 623 (1998)). Any insufficiency of evidence claim cannot be

considered by this Court in determining whether an actual innocence exception exists for

purposes of tolling the statute of limitations period. Grayson v. Grayson, 185 F. Supp. 2d

747, 752 (E.D. Mich. 2002).

III. Conclusion

The Court determines that the current habeas petition is barred by the AEDPA’s

one year statute of limitations contained in § 2244(d)(1). The Court will summarily dismiss

the current petition. The Court will also deny petitioner a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A) and F.R.A.P. 22(b) states that an appeal from the district court’s

denial of a writ of habeas corpus may not be taken unless a certificate of appealability

(COA) is issued either by a circuit court or district court judge. If an appeal is taken by an

applicant for a writ of habeas corpus, the district court judge shall either issue a certificate

of appealability or state the reasons why a certificate of appealability shall not issue.

F.R.A.P. 22(b). To obtain a certificate of appealability, a prisoner must make a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

When a district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claims, a certificate of appealability

should issue, and an appeal of the district court’s order may be taken, if the petitioner

shows that jurists of reason would find it debatable whether the petitioner states a valid

claim of the denial of a constitutional right, and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S.

473, 484 (2000). “The district court must issue or deny a certificate of appealability when

it enters a final order adverse to the applicant.” See Rules Governing § 2254 Cases, Rule

11(a), 28 U.S.C. foll. § 2254.

The Court will deny petitioner a certificate of appealability, because reasonable

jurists would not find it debatable whether this Court was correct in determining that

petitioner had filed his habeas petition outside of the one year limitations period. Grayson

v. Grayson, 185 F. Supp. 2d at 753. The Court will also deny petitioner leave to appeal

in forma pauperis, because the appeal would be frivolous. Myers v. Straub, 159 F. Supp.

2d 621, 629 (E.D. Mich. 2001).

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

Petitioner will be DENIED leave to appeal in forma pauperis.

s/ Nancy G. Edmunds

NANCY G. EDMUNDS

Dated: June 20, 2023 U.S. DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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