Petition for Writ of Certiorari — Jermaine Stevenson, Petitioner v. Jeffrey Woods, Warden

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No. 19-1224

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JERMAINE STEVENSON,

Petitioner-Appellant,

v.

JEFFREY WOODS, Warden,

Respondent-Appellee.

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May 30, 2019

DEBORAH S. HUNT, Clerk

ORDER

Jermaine Stevenson, a pro se Michigan prisoner, appeals the district court’s denial of his

petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. He moves for a

certificate of appealability (“COA”), see Fed. R. App. P. 22(b)(2), and to proceed in forma pauperis

on appeal, see Fed. R. App. P. 24(a)(5).

In 1993, a jury convicted Stevenson of first-degree murder, in violation of Michigan

Compiled Laws § 750.316; assault with intent to commit murder, in violation of Michigan

Compiled Laws § 750.83; and possessing a firearm in the commission of a felony, in violation of

Michigan Compiled Laws § 750.226. Stevenson committed the crimes for which he was convicted

when he was eighteen years old. The trial court sentenced him to an effective term of life

imprisonment plus two years. His convictions and sentence were affirmed on direct appeal. See

People v. Stevenson, 552 N.W.2d 176 (Mich. 1996) (table). Stevenson’s state motion for relief

from judgment was denied. See People v. Stevenson, 881 N.W.2d 484 (Mich. 2016) (mem.).

In April 2016, Stevenson filed a § 2254 petition in the United States District Court for the

Western District of Michigan. See Stevenson v. Woods, No. 2:16-CV-90, 2016 WL 5334601, at

No. 19-1224

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* 1 (W.D. Mich. Sept. 23,2016). The Western District dismissed the first petition as untimely, and

this court denied Stevenson a COA. Stevenson v. Woods, No. 16-2460 (6th Cir. May 30, 2017)

(order). Eleven days before the Western District dismissed the first petition, Stevenson filed

another § 2254 petition in the United States District Court for the Eastern District of Michigan, in

which he raised claims that (1) he was actually innocent because the trial court lacked jurisdiction

over him due to his classification as a juvenile; (2) his due-process rights were violated because

he was tried as an adult despite the juvenile court failing to waive its jurisdiction; (3) trial and

appellate counsel performed ineffectively by failing to argue that Stevenson was still under the

jurisdiction of the juvenile court; and (4) his life sentence was no longer constitutional in light of

Miller v. Alabama, 567 U.S. 460 (2012). After the district court denied the second petition as

duplicative, this court determined that the second petition should have been transferred from the

Eastern District to the Western District for consideration as a motion to amend the first petition.

See In re Stevenson, 889 F.3d 308, 309 (6th Cir. 2018). The second petition was transferred back

to this court for consideration as an application to file a second or successive habeas petition, and

this court once again remanded for the district court to consider the second petition as a motion to

amend the first petition. Id.

In addition to the second petition, Stevenson filed a “Brief in Support of Petitioner’s

Motion for Leave to Amend/Supplement 28 USC § 2254 Habeas Corpus Petition” on May 21,

2018. The district court granted the motion to amend, designating the second petition as the

operative amended petition. A magistrate judge recommended denying the amended petition,

concluding that it was barred by the one-year statute of limitations contained in 28 U.S.C.

§ 2244(d)(1).

Over Stevenson’s objections, the district court adopted the report and

recommendation, denied the petition, and declined to issue a COA.

Stevenson now seeks a COA from this court. In his application, he argues that the district

court erred by beginning to run the statute of limitations from the date that Miller was decided. He

claims that the “factual predicate of his claim” did not become discoverable until August 4, 2016,

when the trial court notified him that it would not resentence him pursuant to Michigan Compiled

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Laws § 769.25a. He argues that his claim is not premised on Miller, but is instead based on the

trial court’s decision not to resentence him under section 769.25a, which he claims violated his

equal-protection and due-process rights. He also argues that he was a juvenile at the time of his

crime, despite having already turned eighteen years old, and that he is actually innocent because

the court of general jurisdiction in Michigan lacked jurisdiction over him.

To obtain a CO A, an applicant must make a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2253(c)(2). If the petition was denied on procedural grounds,

the petitioner must show “that jurists of reason would find it debatable whether the petition 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 Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of

limitations for filing a federal habeas corpus petition. See 28 U.S.C. § 2244(d)(1). The limitations

period begins to run on 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.

See 28 U.S.C. § 2244(d)(1). The district court found that Stevenson’s claims that the trial court

lacked jurisdiction and that counsel performed ineffectively are time-barred because he did not

raise them within one year of the conclusion of the time for seeking direct review of his

convictions, or by October 28, 1997. Stevenson presents no reason why he could not have raised

these claims at that time, and reasonable jurists could not debate that they are barred.

Stevenson’s claims based on Miller are also time-barred. Miller was decided on June 25,

2012, see 567 U.S. at 460, but the district court gave Stevenson the benefit of having first

No. 19-1224

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discovered the factual predicate for his claim on November 31, 2012, when the Michigan

Department of Corrections issued him a new Basic Information Sheet informing him of the

decision in Miller. Stevenson therefore had, at the latest, until November 31,2013, to file a habeas

corpus petition based on Miller or otherwise toll the statute of limitations. He did not file his

motion for relief from judgment until April 2, 2014. Reasonable jurists could not debate that the

deadline to raise a federal habeas claim based on Miller had already expired. See also Dodd v.

United States, 545 U.S. 353, 357 (2005) (finding that, under the nearly identical 28 U.S.C.

§ 2255(f)(3) standard, the statute of limitations begins to run from the date on which the Supreme

Court initially recognized the right asserted, and not the date that the right was made retroactively

applicable).

Stevenson, however, claims in his COA application that he “never argued that he was

denied resentencing pursuant to Miller,” and contends that his claim is based on Michigan

Compiled Laws § 769.25a, which went into effect prior to the Supreme Court’s decision in

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (making Miller's holding retroactively applicable

on collateral review). That statute provides:

If the state supreme court or the United States supreme court finds

that... Miller. .. applies retroactively to all defendants who were under the age of

18 at the time of their crimes,... the determination of whether a sentence of

imprisonment [pursuant to Michigan Compiled Laws § 750.316] shall be

imprisonment for life without parole eligibility or a term of years . . . shall be made

by the sentencing judge or his or her successor ....

Mich. Comp. Laws § 769.25a(2). The statute also lays out a procedure for the resentencing of

defendants who would be affected by the retroactive application of Miller. Mich. Comp. Laws

§ 769.25a(4).

Stevenson sent a letter to the trial court on July 25, 2016, inquiring about

resentencing under the statute. Stevenson argues that the trial court’s response informing him that

he was not eligible for resentencing because he was eighteen at the time of the offense violated his

rights to equal protection and due process. He claims this is so in spite of the fact that he was

eighteen at the time of his crime because he was purportedly still under the jurisdiction of the

juvenile court and thus classified as a juvenile under Michigan law. See Mich. Comp. Laws

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-5§§ 712A.2(b), 712A.2a(l), (3) (1991). Therefore, Stevenson argues that the statute of limitations

should have begun to run on August 4, 2016, the date the trial court responded to his letter.

The district court concluded that this argument was an attempt “to sidestep the bar on his

constitutional claim arising out of Miller v. Alabama.” Although Stevenson attempts to couch this

claim as a violation of his rights to due process and equal protection, he is essentially arguing that

the Michigan courts wrongly interpreted their own statute by concluding that he did not qualify

for resentencing under section 769.25a. The interpretation of a Michigan statute by the Michigan

courts is a matter of Michigan law, and is not cognizable on federal habeas review. See Estelle v.

McGuire, 502 U.S. 62, 67 (1991). Moreover, section 769.25a merely lays out the procedure for

resentencing defendants who would be affected by the retroactive application of Miller, and any

claim based on Miller is time-barred, as previously discussed. This claim does not deserve

encouragement to proceed further.

Lastly, Stevenson asserts that the district court erroneously determined that he had not

established his actual innocence. The one-year limitation period may be overcome if a petitioner

can “demonstrate that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). To show a fundamental miscarriage

of justice, the petitioner must make a “convincing showing” of actual innocence. McQuiggin v.

Perkins, 569 U.S. 383, 386 (2013).

This “requires 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 v. Delo, 513 U.S. 298, 324 (1995). “[Ajctual innocence means factual innocence, not mere

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

States, 523 U.S. 614, 623 (1998)).

Stevenson argues actual innocence by asserting that the trial court allegedly lacked

jurisdiction over him, and its judgment was therefore void. He asserts that this is more than a mere

“legal insufficiency” because it affected his constitutional rights, and he presents documents that

he claims show that the juvenile court did not waive its jurisdiction over him. But even if

No. 19-1224

-6Stevenson is correct that the juvenile court did not waive its jurisdiction, this does not implicate

whether or not he factually committed the crime, and is thus “not the sort of claim contemplated

by the ‘actual innocence’ exception as justifying equitable tolling.” Casey v. Tennessee, 399 F.

App’x 47, 48-49 (6th Cir. 2010). Reasonable jurists could not debate the district court’s rejection

of this argument.

Accordingly, the application for a CO A is DENIED. The motion to proceed in forma

pauperis on appeal is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

Jermaine Stevenson,

Petitioner,

-vJeffrey Woods,

Respondent

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No. 2:16-cv-90

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HONORABLE PAUL L. MALONEY

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OPINION

Petitioner Jermaine Stevenson filed a second petition in die Eastern District of

Michigan under 28 U.S.C. § 2254 while his original petition was pending before diis Court.

On September 23, 2016, the Court found that the first petition was time-barred and denied

a Certificate of Appealability'. Three weeks later, the petition filed in the Eastern District was

transferred to tins Court The Court issued an order transferring the subsequent petition as

Second or Successive, but the Sixth Circuit remanded, finding diat because die second

petition was filed before the first petition was resolved, die second petition should have been

treated as a motion to amend the original petition, ignoring diat die Court had issued a

judgment prior to obtaining jurisdiction over die second petition.

On July 9, 2018, die magistrate judge issued an R & R recommending diat the second

petition be dismissed as time-barred. Petitioner filed objections, and then a second set of

objections, styled as a motion to amend or supplement his objections. That motion is

GRANTED and die Court will address die arguments made in bodi filings (ECF Nos. 2526.)

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Statement of Facts

Petitioner was convicted in Wayne County Circuit Court of first-degree murder and

felony firearm. He was sentenced to life without die possibility of parole and two years on

die respective counts. His date of birdi is August 23, 1973, and die offense occurred on

November 15, 1991. He had dius attained 18 years of age at die time he committed first

degree murder.

On April 8, 2016, Petitioner filed his original habeas petition, which was found to be

time-barred on September 23, 2016. But 11 days before die Court did so, Petitioner filed a

second § 2254 Petition, diis time in die Eastern District of Michigan. That court dismissed

die second petition as duplicative. The Sixdi Circuit examined die second petition, found

diat it raised different claims dian die first petition, and vacated die Eastern District’s

dismissal widi instructions to transfer die Petition to die Western District to consider it as a

motion to amend. Those amended claims, first presented in die Eastern District, are now

before die Court.

Petitioner’s Amended Habeas Petition asserted four claims for relief. The magistrate

judge’s Report and Recommendation focused largely on Petitioner’s fourth claim—diat the

sentence he received was unconstitutional. Ultimately, die magistrate judge found die petition

time-barred and concluded diat neither equitable tolling or actual innocence applied to

overcome die statute of limitations.

Legal Framework

Widi respect to a dispositive motion, a magistrate judge issues a report and

recommendation, radier dian an order. After being served widi a report and

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recommendation (R & R) issued by a magistrate judge, a party has fourteen days to file written

objections to die proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R.

Civ. P. 72(b). A district court judge reviews de novo die portions of die R & R to which

objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only diose

objections diat are specific are entided to a de novo review under die statute. Mira v.

Marshall, 806 F.2d 636, 637 (6di Cir. 1986) (per curiam) (holding die district court need not

provide de novo review where die objections are frivolous, conclusive or too general because

die burden is on die parties to “pinpoint diose portions of the magistrate’s report that die

district court must specifically consider”). Failure to file an objection results in a waiver of

die issue and die issue cannot be appealed. United States v. Sullivan, 431 F.3d 976, 984 (6di

Cir. 2005); see also Thomas v. Am, 474 U.S. 140, 155 (upholding die Sixdi Circuit’s

practice). The district court judge may accept, reject, or modify, in whole or in part, die

findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R.

Civ. P. 72(b).

Discussion

Petitioner raises four claims for relief in his Amended Petition under § 2254.

However, die first diree claims (arguing diat die state court lacked jurisdiction and diat he

received ineffective assistance of counsel) are time-barred for die reasons given in die Court’s

prior opinions addressing Petitioner’s first § 2254. (See ECF No. 3, 8.) The statute of

limitations expired on diese claims on October 28, 1997. 28 U.S.C. § 2244(d)(1).

Petitioner’s fourdi claim implicates a newly-announced retroactively applicable rule

of constitutional law, and it is dierefore subject to a different statute of limitations. Plaintiff

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asserts that his sentence to mandatory life widiout parole violated his Eighth Amendment

right to be free from cruel and unusual punishment because he was a juvenile. The Supreme

Courtheld such sentences unconstitutional in Miller v. Alabama, 567 U.S. 460 (2012). Miller

was decided on June 25, 2012, so Petitioner had one year from that date to file this claim.

He did not do so.

[Petitioner argues that his failure to do so was excused because he did not become ^

[aware of 'Miller until the MDOC issued a Basic Information sheet to. all juvenile offenders

Serving a life sentence without parole in November of 2012. Even giving Plaintiff die benefit

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of die doubt, Petitioner had until November 30, 2013 to file his petition. Again, he did not

do so. The magistrate judge thus concluded diat Petitioner’s Miller claim was time:barred.f?

The magistrate judge furdier evaluated whedier equitable tolling or actual innocence

could excuse Petitioner’s failure to timely file his petition. The court first concluded that

Petitioner had not raised any grounds diat would support equitable tolling. It dien concluded

diat he had not established actual innocence of his crime of his conviction.

Between Petitioner’s objections and his supplemental objections, Petitioner raises

diree principle arguments.

First, he argues diat Miller was not retroactively applicable until die Supreme Court

decided Montgomery v. Louisiana on January 25, 2016, so his petition was timely. See 136

S. Cl 718 (2016).

Tliis argument is unavailing. The statute of limitations runs from die day die Supreme

Court announces a newly-recognized constitutional right, wliich occurred when Miller was,

decided. Montgomery' says as much: “The Court now holds diat Miller annowiced a

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substantive rule of constitutional law.” 136 S. Ct at 736 (emphasis added). Petitioner is

incorrect when he asserts that die right announced in Miller was, not retroactively applicable

until Montgomery' was decided. Thus, die magistrate judge did not err in concluding diat

Petitioner’s Miller claim was time-barred.

^Petitioner’s second objection relates to actual innocence. The magistrate judge found1

''diat Petitioner had not established actual innocence because he offered no evidence diat r

made it more likely than not diat no reasonable juror could vote to convict liun. Petitioner f

fnow argues that die Wayne' County Circuit Court lacked jurisdiction over him and therefore /

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his conviction is void.

It is a habeas petitioner’s burden to show actual innocence. Bousley v. United States,

523 U.S. 614,621 (1998). However, die Court made clear in Bousleythat “‘actual innocence’

means factual innocence, not merely legal insufficiency.” Id. at 623.

Here, Petitioner’s 'attack 'on his -conviction is one of “legal (] sufficiency” alone.

jTPetitioner’sL attack on die adequacy of the juvenile court proceedings is simply not die sore

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of claim .contemplated by die “actual innocence” exception!.]”. Casey v. Tennessee, 399 F. App’x 47,,49 (6th Cir. 2010). Accordingly, diis objection will be overruled, t

Finally, in his supplemental objections, Petitioner offers a new dieory for why his

petition is timely. [For die first time, he asserts diat die state courts did not recognize diat he

was sentenced to life as a juvenile offender. Specifically, he says diat die trial judge, “off die

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record,” refused to resentence him and subsequendy wrote a letter saying as much. The letter

indicates diat die state trial judge considered Petitioner to be 18 at die time of die offense,

since his birdiday was August 23, 1973 and die offense date was November 15, 1991. The

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r judge tlius reasoned diat Petitioner was not eligible for re-sentencing under Miller.

Petitioner has merely attempted to sidestep die bar on his constitutional claim arising

put of Miller v. Alabama. Because diis claim still relies on a newly announced retroactive (i

constitutional decision, Petitioner’s claim is time-barred, regardless of when die state trial A

judge informed him diat he was ineligible for die relief he sought on die merits. Even if the

claim were not time-barred, die Court finds diat Petitioner was not a juvenile at die time of

die offense, and dius he has no claim under Miller.

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f In sum, Petitioner’s petition for a writ of habeas corpus lacks merits and will be denied

yvitiiout a certificate of appealability.

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ORDER

Petitioner’s motion to supplement his objections is GRANTED, and die Court has

considered die arguments contained widiin.

For die reasons given in the accompanying opinion, die Court ADOPTS the Report

and Recommendation of die Magistrate Judge as die opinion of die Court (ECF No. 23.)

Petitioner’s objections are OVERRULED (ECF Nos. 25, 26) and Petitioner’s Amended

Habeas Corpus Claim is DENIED.

Certificate of Appealability

The Court must determine whedier a certificate of appealability should be granted.

28 U.S.C. § 2253(c)(2). A certificate should issue if petitioner has demonstrated a “substantial

showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixdi Circuit Court

of Appeals has disapproved issuance of blanket denials of a certificate of appealability.

Murphy v. Ohio, 263 F.3d 466 (6di Cir. 2001). Radier, die district court must “engage in a

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reasoned assessment of each claim” to determine whether a certificate is warranted. Id. at

467. Each issue must be considered under die standards set forth by die Supreme Court in

Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467.

Under Slack, to warrant a grant of die certificate, “[t]he petitioner must demonstrate

diat reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” 529 U.S. at 484. “A petitioner satisfies diis standard by demonstrating

diat.. . jurists could conclude die issues presented are adequate to deserve encouragement

to proceed furdier.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying diis

standard, die Court may not conduct a full merits review, but must limit its examination to a

direshold inquiry into die underlying merit of petitioner’s claims. Id.

Examining Petitioner’s claims under die standard in Slack, die Court finds diat

reasonable jurists would not conclude diat diis Court’s denial of Petitioner’s claims is

debatable or wrong. The Court dius DENIES Petitioner a Certificate of Appealability.

IT IS SO ORDERED.

JUDGMENT TO FOLLOW.

Is/ Paul L. Maloney

Paul L. Maloney

United States District Judge

Date: February 5. 2019

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Certified an a True Copy n

By ho.-v^dA^ E.I

Deputy Clerk

U.S. District Court

Western DisL of Michigan

2 - s - 7-0 in

Date

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

Jermaine Stevenson,

Petitioner,

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Jeffrey Woods,

Respondent

HONORABLE PAUL L. MALONEY

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JUDGMENT

In accordance with the accompanying Opinion and Order entered on this, and

pursuant to Fed. R. Civ. P. 58, JUDGMENT hereby enters.

IT IS SO ORDERED.

Date: February 5. 2019

/s/ Paul L. Maloney

Paul L. Maloney

United States District Judge

Certified an a True Copy

By A : )C'yAj/ej

Deputy Clerk

U.S. District Court

Western Dist. of Michigan

Z - S - lo I °i

Date

Case 2:16-cv-00090-PLM-TPG ECF No. 23filed 07/09/18 PagelD.381 Page lot9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JERMAINE STEVENSON.

Petitioner,

v.

Case No. 2:16-cv-90

Honorable Paul L. Maloney

JEFFREY WOODS,

Respondent.

REPORT AND RECOMMENDATION

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) (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, I

conclude that the petition is barred by the one-year statute of limitations.

Case 2:16-cv-00090-PLM-TPG ECF No. 23 filed 07/09/18 PagelD.382 Page 2 of 9

Petitioner Jermaine Stevenson is incarcerated with the Michigan Department of

Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County,

Michigan. Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of

first-degree murder and felony firearm. On January 26, 1993, the court sentenced Petitioner to

respective prison terms of life without the possibility of parole and 2 years.

On April 8, 2016, Petitioner initiated this action by filing an application for habeas

corpus relief. Under Sixth Circuit precedent, the application is deemed filed when handed to prison

authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).

Petitioner signed his original application on April 4, 2015. (Pet., ECF No. 1, PageID.20.) The

petition was received by the Court on April 8, 2016.

For purposes of this Report and

Recommendation, I have given Petitioner the benefit of the earliest possible filing date. See Brand

v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document

is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders,

206 F. App’x 497, 498 n.l (6th Cir. 2006)).

Following the filing of this action, the Court reviewed Petitioner’s application and

determined that his claims were barred by the pertinent statute of limitations. Petitioner’s action

was dismissed on September 23, 2016. (ECF Nos. 8 and 9.) The Sixth Circuit Court of Appeals

subsequently denied Petitioner a certificate of appealability.

(ECF No. 16.)

Petitioner’s

subsequent attempts to obtain relief from the federal courts were summarized by the Sixth Circuit

on May 4, 2018:

In April 2016, Stevenson filed a § 2254 petition in the United States District

Court for the Western District of Michigan. See Stevenson v. Woods, No. 2:16CV-90, 2016 WL 5334601, at *1 (W.D. Mich. Sept. 23, 2016). The Western

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Case 2:16-cv-00090-PLM-TPG ECF No. 23 filed 07/09/18 PagelD.383 Page 3 of 9

District dismissed the first petition as untimely, and we denied Stevenson a

certificate of appealability. Eleven days before the Western District dismissed the

first petition, Stevenson filed another § 2254 petition in the United States District

Court for the Eastern District of Michigan. The Eastern District, upon learning of

Stevenson’s earlier petition, dismissed the second as “duplicative,” finding that it

“raise[d] the same claims.”

Noting that the second petition sought to raise three grounds not mentioned

in the first petition, we granted a certificate of appealability to consider whether the

Eastern District should have construed the second petition as a motion to amend

the first petition. By order dated September 18, 2017, we determined that the

Eastern District abused its discretion by failing to transfer the second petition to the

Western District because a subsequent § 2254 petition filed while the petitioner’s

initial petition is still pending should be construed as a motion to amend the initial

petition under Federal Rule of Civil Procedure 15. See In re Deal, No. 15-6023

(6th Cir. May 9, 2016) (citing United States v. Sellner, 773 F.3d 927, 931-32 (8th

Cir. 2014)); Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008); Whab v. United

States, 408 F.3d 116, 119 (2d Cir. 2005)); see also Clark v. United States, 764 F.3d

653, 658 (6th Cir. 2014) (“A motion to amend [pursuant to Rule 15] is not a second

or successive [habeas] motion when it is filed before the adjudication of the initial

§ 2255 motion is complete. ...”). We thus vacated the Eastern District’s dismissal

order and remanded the case for transfer to the Western District of Michigan with

instructions to consider the second petition as a motion to amend Stevenson’s first

petition. Stevenson v. Woods, No. 16-2577 (6th Cir. Sept. 18, 2017).

The Eastern District transferred the case to the Western District as directed

by our September 18, 2017, order. The Western District did not follow our

instructions, however, and instead transferred the case back to this court for

consideration as an application to file a second or successive habeas petition

pursuant to 28 U.S.C. § 1631 and In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

Stevenson v. Horton, No. 2:17-CV-177 (W.D. Mich. Jan. 9, 2018). Because we

have already determined that the second petition was not second or successive—

but instead should be construed as a motion to amend the first petition—the proper

disposition is to remand the case to the Western District for consideration in

accordance with our September 18, 2017, order.

See Stevenson v. Horton, Case No. 2:17-cv-177, ECF No. 18, PagelD. 144-145 (W.D. Mich.).

Consequently, the instant case was reopened on May 11, 2018, pursuant to ECF No. 19 filed in

Case No. 2:17-cv-177.

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Case 2:16-cv-00090-PLM-TPG ECF No. 23 filed 07/09/18 PagelD.384 Page 4 of 9

Currently before the Court is Petitioner’s motion to amend / correct, his amended

habeas corpus petition, and his brief in support. (ECF Nos. 17 and 18.)

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).

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

the date on which the judgment became final by the conclusion of

(A)

direct review or the expiration of the time for seeking such review;

the date on which the impediment to filing an application created by

(B)

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;

the date on which the constitutional right asserted was initially

(C)

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

the date on which the factual predicate of the claim or claims

(D)

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,

181-82 (2001) (limiting the tolling provision to only State, and not Federal, processes); Artuz v.

Bennett, 531 U.S. 4, 8 (2000) (defining “properly filed”).

As noted by the Court in June 3, 2016, Report and Recommendation, as well as in

the September 23, 2016, Order Adopting the Report and Recommendation (ECF Nos. 3 and 8),

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the Michigan Supreme Court denied his application on July 29, 1996. The one-year limitations

period, however, did not begin to run until the ninety-day period in which Petitioner could have

sought review in the United States Supreme Court had expired. See Lawrence v. Florida, 549 U.S.

327, 332-33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period

expired on October 28, 1996. The Court found that the statute of limitations for Petitioner’s claims

expired on October 28, 1997.

Petitioner now claims that the United States Supreme Court’s decision in Miller v.

Alabama, 567 U.S. 460 (2012), which was decided on June 25, 2012, and held that mandatory life

imprisonment without parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment provides him with a new basis for challenging his sentence. As noted above,

where the right being asserted has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review, the statute of limitations shall run from the

date on which the constitutional right asserted was initially recognized by the Supreme Court, or

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). Petitioner claims that after Miller

v. Alabama was decided, the MDOC issued every juvenile offender sentenced to mandatory life

without parole a new Basic Information Sheet, and that he received his in November of 2012 with

the heading “Juvenile Lifer Review 10-30-12.” Giving Petitioner the benefit of the latest date for

discovering the factual predicate of this claim, November 31, 2012, Petitioner had one year from

that date, or until November 31, 2013, to file a habeas corpus petition or otherwise toll the running

of the statute of limitations. As noted above, Petitioner did not file his motion for relief from

judgment until April 2, 2014. Therefore, the statute of limitations had already run.

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The one-year limitations period applicable to § 2254 is a statute of limitations

subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (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, e.g., Hall v.

Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011); Robertson v. Simpson, 624 F.3d

781, 784 (6th Cir. 2010); Sherwood v. Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009). 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, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005)); Lawrence v. Florida, 549 U.S. 327, 335 (2007); Hall, 662 F.3d at 750; Akrawi,

572 F.3d at 260.

Petitioner has failed to raise equitable tolling or allege any facts or circumstances

that would warrant its application in this case. The fact that Petitioner is untrained in the law, was

proceeding without a lawyer, or may have been unaware of the statute of limitations for a certain

period does not warrant tolling. See Allen, 366 F.3d at 403-04; see also Craig v. White, 227 F.

App’x 480, 482 (6th Cir. 2007); Harvey v. Jones, 179 F. App’x 294, 299-300 (6th Cir. 2006);

Martin v. Hurley, 150 F. App’x 513, 516 (6th Cir. 2005); Fisher v. Johnson, 174 F.3d 710, 714

(5th Cir. 1999) (“[Ijgnorance of the law, even for an incarcerated pro se petitioner, generally does

not excuse [late] filing.”). Accordingly, Petitioner is not entitled to equitable tolling of the statute

of limitations.

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In his amended habeas corpus petition, Petitioner claims that he should be able to

proceed with his habeas action because he has new evidence showing actual innocence. In

McQuiggin v. Perkins, 569 U.S. 383, 391-393 (2013), the Supreme Court held that a habeas

petitioner who can show actual innocence under the rigorous standard of Schlup v. Delo, 513 U.S.

298 (1995), is excused from the procedural bar of the statute of limitations under the miscarriageof-justice exception. In order to make a showing of actual innocence under Schlup, a Petitioner

must present new evidence showing that ‘“it is more likely than not that no reasonable juror would

have convicted [the petitioner].”’ McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 329

(addressing actual innocence as an exception to procedural default)). Because actual innocence

provides an exception to the statute of limitations rather than a basis for equitable tolling, a

petitioner who can make a showing of actual innocence need not demonstrate reasonable diligence

in bringing his claim, though a court may consider the timing of the claim in determining the

credibility of the evidence of actual innocence. Id. at 399-400.

In the instant case, Petitioner asserts that he was a juvenile in the custody of the

Wayne County Probate Court at the time the crime was committed. As support for his claim of

actual innocence, Petitioner claims that the United States Supreme Court decision in Miller v.

Alabama, 567 U.S. 460 (2012), which was decided on June 25, 2012, held that mandatory life

imprisonment without parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment. Id. at 465. However, the holding in Miller v. Alabama does not constitute

evidence that makes it more likely than not that no reasonable jury would have convicted him.

Schlup, 513 U.S. at 329. Therefore, because Petitioner has wholly failed to provide evidence of

his actual innocence, he is not excused from the statute of limitations under 28 U.S.C. § 2244(d)(1).

His habeas petition therefore is time-barred.

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The Supreme Court has directed the District Court to give fair notice and an

adequate opportunity to be heard before dismissal of a petition on statute of limitations grounds.

See Day, 547 U.S. at 210. This report and recommendation shall therefore serve as notice that the

District Court may dismiss Petitioner’s application for habeas corpus relief as time-barred. The

opportunity to file objections to this report and recommendation constitutes Petitioner’s

opportunity to be heard by the District Judge.

Even though I have concluded that Petitioner’s habeas petition should be denied,

under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of appealability

should be granted. A certificate should issue if Petitioner has demonstrated a “substantial showing

of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals

has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263

F.3d 466 (6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment of each

claim” to determine whether a certificate is warranted. Id. at 467.

I have concluded that Petitioner’s application is untimely and, thus, barred by the

statute of limitations. Under Slack v. McDaniel, 529 U.S. 473,484 (2000), when a habeas petition

is denied on procedural grounds, a certificate of appealability may issue only “when the prisoner

shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Both showings must be made to

warrant the grant of a certificate. Id.

I find that reasonable jurists could not find it debatable whether Petitioner’s

application was timely. Therefore, I recommend that a certificate of appealability should be

denied.

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For the foregoing reasons, I recommend that the habeas corpus petition be denied

because it is barred by the one-year statute of limitations. I further recommend that a certificate

of appealability be denied.

Dated:

July 9, 2018

/s/ Timothy P. Greeley

Timothy P. Greeley

United States Magistrate Judge

NOTICE TO PARTIES

Any objections to this Report and Recommendation must be filed and served within 14 days of

service of this notice on you. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). All objections and

responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely

objections may constitute a waiver of any further right of appeal. United States v. Walters, 638

F.2d 947 (6th Cir. 1981); see Thomas v. Am, 474 U.S. 140 (1985).

9

i

No. 19-1224

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JERMAINE STEVENSON

)

)

)

)

)

)

)

)

)

)

Petitioner-Appellant,

v.

JEFFREY WOODS, WARDEN,

Respondent-Appellee.

FILED

Jul 16, 2019

DEBORAH S. HUNT, Clerk

ORDER

Before: KETHLEDGE, BUSH, and MURPHY, Circuit Judges.

Jermaine Stevenson, a pro se Michigan prisoner, petitions the court to rehear en banc its

order denying him a certificate of appealability. The petition has been referred to this panel , on

which the original deciding judge does not sit, for an initial determination on the merits of the

petition for rehearing. Upon careful consideration, the panel concludes that the original deciding

judge did not misapprehend or overlook any point of law or fact in issuing the order and,

accordingly, declines to rehear the matter. Fed. R. App. P. 40(a).

The Clerk shall now refer the matter to all of the active members of the court for further

proceedings on the suggestion for en banc rehearing.

ENTERED BY ORDER OF THE COURT

'eooran ts. hunt, uierK

No. 19-1224

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JERMAINE STEVENSON,

)

)

)

)

)

)

)

)

)

)

Petitioner-Appellant,

v.

JEFFREY WOODS, WARDEN,

Respondent-Appellee.

FILED

Jul 31, 2019

DEBORAH S. HUNT, Clerk

ORDER

Before: KETHLEDGE, BUSH, and MURPHY, Circuit Judges.

Jermaine Stevenson petitions for rehearing en banc of this court’s order entered on May

30,2019, denying his application for a certificate of appealability. The petition was initially referred

to this panel, on which the original deciding judge does not sit. After review of the petition, this

panel issued an order announcing its conclusion that the original application was properly denied.

The petition was then circulated to all active members of the court,* none of whom requested a

vote on the suggestion for an en banc rehearing. Pursuant to established court procedures, the

panel now denies the petition for rehearing en banc.

ENTERED BY ORDER OF THE COURT

'eooran b. Hunt, uer«

'Judge Larsen recused herself from participation in this ruling.