Petition for Writ of Certiorari — Sherman Campbell, Warden, Petitioner v. Stephen J. Kares
Supreme Court briefFeb 26, 2024
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No. _________
In the Supreme Court of the United States
SHERMAN CAMPBELL, WARDEN, PETITIONER
v.
STEPHEN J. KARES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Dana Nessel
Michigan Attorney General
Ann M. Sherman
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
ShermanA@michigan.gov
(517) 335-7628
John Pallas
Division Chief
Andrea Christensen-Brown
Scott Shimkus
Assistant Attorneys General
Criminal Appellate and
Parole Appeals Division
Attorneys for Petitioner
i
QUESTIONS PRESENTED
Congress has imposed a one-year statute of limitations for state prisoners to seek habeas review of
their conviction or sentence. 28 U.S.C. § 2244(d). The
limitations period is statutorily tolled during the pendency of a “properly filed application for State postconviction or other collateral review with respect to
the pertinent judgment or claim” under § 2244(d)(2).
A petitioner must meet two requirements for statutory tolling. First, the application must call for “judicial reexamination” of the judgment or claim, Wall v.
Kholi, 562 U.S. 545, 553 (2011), as distinct from intermediate requests such as motions for discovery, which
do not toll the limitations period, id. at 556 n.4. Second, the conforming application must be “properly
filed” under state law. Artuz v. Bennett, 531 U.S. 4, 8
(2000). The questions presented are:
1. Does Michigan’s statute allowing a prisoner to
request DNA testing call for a “judicial reexamination” of the defendant’s conviction under § 2244(d)(2)
to statutorily toll the habeas limitations period, as in
the Fifth and Sixth Circuits, or it is more akin to a
discovery request, in line with decisions from the Second, Seventh, Ninth, Tenth, and Eleventh Circuits
and the Michigan appellate courts?
2. Did Petitioner Stephen Kares “properly file” his
DNA motion under state law, where he did not even
attempt to satisfy the minimal pleading requirements
set forth in Michigan’s post-conviction DNA testing
statute?
ii
PARTIES TO THE PROCEEDING
Petitioner, Sherman Campbell, is the Warden
where Respondent, Stephen Kares, is currently held
in custody. Bryan Morrison, who previously was warden at the facility where Kares was held, was appellee
in the court below.
RELATED CASES
•
Michigan Court of Appeals, People v. Stephen Kares, No. 312680, Opinion issued November 21,
2013 (affirming conviction and sentence on direct
appeal).
•
Michigan Supreme Court, People v. Stephen Kares,
No. 148566, Order issued May 27, 2014 (denying
leave to appeal on direct appeal).
•
Michigan Supreme Court, People v. Stephen Kares,
No. 148566, Order issued September 29, 2014
(denying reconsideration on direct appeal).
•
Shiawassee Circuit Court, People v. Stephen Kares,
No. 12-3104-FH, Opinion issued February 12, 2018
(denying post-conviction motion for DNA testing).
•
Michigan Court of Appeals, People v. Stephen Kares, No. 342746, Order issued August 29, 2018
(denying leave to appeal from denial of DNA motion).
•
Michigan Supreme Court, People v. Stephen Kares,
No. 158616, Order issued April 2, 2019 (denying
leave to appeal from denial of DNA motion).
iii
•
United States District Court for the Western District of Michigan, Northern Division, Stephen John
Kares v. Connie Horton, No. 2:19-cv-7, Report and
Recommendation issued June 25, 2019 (recommending habeas petition be dismissed due to untimeliness).
•
United States District Court for the Western District of Michigan, Northern Division, Stephen John
Kares v. Connie Horton, No. 2:19-cv-7, Order issued July 30, 2019 (rejecting recommendation to
dismiss habeas petition for untimeliness).
•
United States District Court for the Western District of Michigan, Northern Division, Stephen John
Kares v. Connie Horton, No. 2:19-cv-7, Report and
Recommendation issued April 23, 2021 (recommending habeas petition be denied for untimeliness and on the merits).
•
United States District Court for the Western District of Michigan, Northern Division, Stephen John
Kares v. Connie Horton, No. 2:19-cv-7, Opinion issued August 3, 2021 (accepting recommendation to
deny habeas petition for untimeliness and on the
merits and denying a certificate of appealability).
•
United States District Court for the Western District of Michigan, Northern Division, Stephen John
Kares v. Connie Horton, No. 2:19-cv-7, Order issued August 3, 2021 (granting a certificate of appealability on the timeliness issue only).
iv
•
United States Court of Appeals for the Sixth Circuit, Stephen J. Kares v. Bryan Morrison, No. 212845, Opinion issued August 8, 2023 (holding habeas petition was timely but denying a certificate
of appealability on merits claim).
•
United States Court of Appeals for the Sixth Circuit, Stephen J. Kares v. Bryan Morrison, No. 212845, Order issued November 28, 2023 (denying
petition for rehearing).
v
TABLE OF CONTENTS
Questions Presented .................................................... i
Parties to the Proceeding ........................................... ii
Related Cases .............................................................. ii
Petition Appendix Table of Contents ...................... viii
Table of Authorities ................................................... xi
Opinions Below ........................................................... 1
Jurisdiction ................................................................. 1
Statutory Provisions Involved .................................... 1
Introduction ................................................................ 2
Statement of the Case ................................................ 3
Trial facts .................................................................... 3
State post-conviction proceedings .............................. 5
The DNA motion ......................................................... 6
The habeas proceedings in district court ................. 10
The Sixth Circuit’s decision...................................... 11
Reasons for Granting the Petition ........................... 14
I.
Michigan’s statute allowing a prisoner to
request DNA testing cannot statutorily toll
the habeas limitations period under
§ 2244(d)(2) because it is nothing more than
a discovery request until exculpatory DNA
results trigger a new-trial inquiry, as in the
Second, Seventh, Ninth, Tenth, and Eleventh
Circuits and contrary to the holdings of the
Fifth and Sixth Circuits. .................................... 14
vi
A. The state application for post-conviction
review must seek a judicial
reexamination of the judgment, not
simply discovery material............................ 15
B. The circuits fall into majority and
minority views on this issue, and the
Sixth Circuit has aligned itself with the
minority view. .............................................. 16
C. The minority view is incorrect; the line is
drawn between discovery and judicial
review to facilitate exhaustion in the
state courts, obviating any need for
federal tolling unless and until DNA
testing is ordered and exculpatory results
are obtained.................................................. 21
D. The effect of a post-conviction DNA
motion on the habeas limitations period
is better addressed by starting the clock
when the petitioner obtains exculpatory
DNA results under § 2244(d)(1)(D). ............ 24
II. Kares did not “properly file” his DNA motion
under state law where he did not even
attempt to satisfy the minimal pleading
requirements set forth in Michigan’s postconviction DNA testing statute.......................... 27
A. State law governs whether a state
application for post-conviction review is
“properly filed” under § 2244(d)(2). ............. 27
B. The Sixth Circuit misconstrued state law
and conflated the requisite filing
conditions with relief conditions. ................. 29
vii
C. Having established the correct filing
conditions, Kares did not even attempt to
satisfy them. ................................................. 32
Conclusion ................................................................. 36
viii
PETITION APPENDIX TABLE OF CONTENTS
United States Court of Appeals
for the Sixth Circuit
Opinion in 21-2845
Issued August 8, 2023 ................................ 001a–025a
United States District Court
Western District of Michigan
Case No. 2:19-cv-7
Order
Issued August 3, 2021 ................................ 026a–028a
United States District Court
Western District of Michigan
Case No. 2:19-cv-7
Opinion
Issued August 3, 2021 ................................ 029a–061a
United States District Court
Western District of Michigan
Case No. 2:19-cv-7
Report and Recommendation
Issued April 23, 2021 .................................. 062a–186a
United States District Court
Western District of Michigan
Case No. 2:19-cv-7
Order Regarding Report
and Recommendation
Issued July 30, 2019 ................................... 187a–192a
ix
United States District Court
Western District of Michigan
Case No. 2:19-cv-7
Report and Recommendation
Issued June 25, 2019 .................................. 193a–202a
Michigan Supreme Court
Case No. 158616
Order
Issued April 2, 2019 .................................... 203a–204a
Michigan Court of Appeals
Case No. 342746
Order
Issued August 29, 2018......................................... 205a
Shiawassee County Circuit Court
Case No. 12-3104-FH
Opinion and Order
Issued February 12, 2018 ........................... 206a–209a
Shiawassee County Circuit Court
Case No. 12-3104-FH
Motion for Testing of Biological Materials
Dated February 5, 2018 .............................. 210a–211a
Michigan Supreme Court
Case No. 148566
Order Denying Reconsideration on Direct Appeal
Issued September 29, 2014 ......................... 212a–213a
Michigan Supreme Court
Case No. 148566
Order Direct Appeal
Issued May 27, 2014 ................................... 214a–215a
x
Michigan Court of Appeals
Case No. 312680
Opinion on Direct Appeal
Issued November 21, 2013.......................... 216a–227a
United States Court of Appeals
for the Sixth Circuit
Order Denying Rehearing in 21-2845
Issued November 28, 2023.................................... 228a
Statutory Provisions Involved ...................... 229–235a
xi
TABLE OF AUTHORITIES
Cases
Alleyne v. United States,
570 U.S. 99 (2013) .............................................. 11
Artuz v. Bennett,
531 U.S. 4 (2000) ......... i, 22, 26, 27, 28, 30, 31, 34
Brown v. Sec’y for Dep’t of Corr.,
530 F.3d 1335 (11th Cir. 2008) .................... 17, 25
Camreta v. Greene,
563 U.S. 692 (2011) ............................................ 13
Dist. Attorney’s Office for 3d Jud. Dist. v.
Osborne,
557 U.S. 52 (2009) .............................................. 25
Edwards v. Carpenter,
529 U.S. 446 (2000) ............................................ 13
Flanagan v. Johnson,
154 F.3d 196 (5th Cir. 1998) ........................ 16, 17
Gonzalez v. Thaler,
565 U.S. 134 (2012) .............................................. 5
Herrera v. Collins,
506 U.S. 390 (1993) ............................................ 22
Hodge v. Greiner,
269 F.3d 104 (2d Cir. 2001) .......................... 16, 17
Hutson v. Quarterman,
508 F.3d 236 (5th Cir. 2007)......................... 12, 18
Loftis v. Chrisman,
812 F.3d 1268 (10th Cir. 2016) .......................... 28
xii
McQuiggin v. Perkins,
569 U.S. 383 (2013) ...................................... 22, 25
Pace v. DiGuglielmo,
544 U.S. 408 (2005) .................... 26, 28, 30, 31, 34
People v. Cress,
664 N.W.2d 174 (Mich. 2003) ............................. 22
People v. Poole,
874 N.W.2d 407 (Mich. Ct. App. 2015) ... 6, 23, 26,
............................................................................. 32
Price v. Pierce,
617 F.3d 947 (7th Cir. 2010) .................. 17, 23, 26
Ramirez v. Yates,
571 F.3d 993 (9th Cir. 2001) ........................ 15, 17
Rhines v. Weber,
544 U.S. 269 (2005) ............................................ 26
Skinner v. Switzer,
562 U.S. 521 (2011) ............................................ 19
Sumner v. Mata,
449 U.S. 539 (1981) .............................................. 3
Texas v. Holloway,
360 S.W.3d 480 (Tex. Crim. App. 2012) ............ 19
Vroman v. Brigano,
346 F.3d 598 (6th Cir. 2003) .............................. 28
Wall v. Kholi,
562 U.S. 545 (2011) ............................. i, 12, 15, 17
Williams v. Birkett,
670 F.3d 729 (6th Cir. 2012) .................. 30, 31, 32
Woodward v. Cline,
693 F.3d 1289 (10th Cir. 2012) .................... 17, 25
xiii
Statutes
28 U.S.C. § 1254(1) ............................................... 1, 13
28 U.S.C. § 2244(b)(2)(B) .................................... 24, 26
28 U.S.C. § 2244(d) .................................................. i, 1
28 U.S.C. § 2244(d)(1) ........................................... 5, 24
28 U.S.C. § 2244(d)(1)(A) .......................................... 24
28 U.S.C. § 2244(d)(1)(D) .......................... 2, 15, 24, 25
28 U.S.C. § 2244(d)(2) .. 2, 5, 10, 11, 14, 15, 16, 18, 21,
..................................................... 23, 26, 27, 33, 35
28 U.S.C. § 2254(e)(1) ................................................. 3
Mich. Comp. Laws § 750.520d(1)(b) ........................... 5
Mich. Comp. Laws § 770.16 .............................. 1, 6, 35
Mich. Comp. Laws § 770.16(1) ............. 6, 7, 23, 29, 33
Mich. Comp. Laws § 770.16(2) ....................... 6, 12, 29
Mich. Comp. Laws § 770.16(3) ................................... 7
Mich. Comp. Laws § 770.16(4) ............................. 7, 34
Mich. Comp. Laws § 770.16(4)(b)(iii) ....................... 34
Mich. Comp. Laws § 770.16(7) ................................... 7
Mich. Comp. Laws § 770.16(8) ............................. 8, 23
Tex. Code Crim. P. art 64.01 .................................... 18
Rules
Mich. Ct. R. 6.500, et seq. ......................................... 10
Sup. Ct. R. 13 .............................................................. 5
1
OPINIONS BELOW
The Sixth Circuit’s order denying Kares’s petition
for rehearing, App. 228a, is not reported but is available at 2023 WL 8687255. The Sixth Circuit’s opinion
finding the habeas petition timely but denying a certificate of appealability on any merits claims, App. 1a–
25a, is reported at 77 F.4th 411. The district court’s
opinion and order finding the petition untimely and
alternatively denying it on the merits, App. 29a–61a,
is not reported but is available at 2021 WL 3361664.
The state trial court’s opinion and order denying
Kares’s motion for post-conviction DNA testing, App.
206a–209a, is not reported. The Michigan Court of Appeals’ order denying leave to appeal, App. 205a, is not
reported. The Michigan Supreme Court’s order denying leave to appeal, App. 203a–204a, is reported as a
table decision at 924 N.W.2d 549.
JURISDICTION
The judgment of the court of appeals was entered
on August 8, 2023. The order of the court of appeals
denying Kares’s petition for rehearing was entered on
November 28, 2023. Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
28 U.S.C. § 2244(d). See App. 229a.
Mich. Comp. Laws § 770.16. See App. 230a–235a.
2
INTRODUCTION
DNA evidence recovered from the 16-year-old victim’s rape kit conclusively matched to Petitioner Stephen Kares by 1-in-2.8-quintillion odds. Kares was
therefore ineligible to motion the state trial court for
post-conviction DNA testing under state law. Yet, in a
published opinion the Sixth Circuit held not only that
Kares’s motion statutorily tolled the habeas limitations period under § 2244(d)(2), but that all such motions will toll so long as they are placed in the hands
of a court clerk. The Sixth Circuit faltered in two significant ways.
First, post-conviction motions for DNA testing
are, at their core, discovery motions that do not call
for a judicial reexamination of the defendant’s conviction unless and until DNA testing is ordered and exculpatory results are obtained, after which the defendant can seek a new trial. The majority of circuits to
address this issue follow this approach. The two outliers are the Fifth and Sixth Circuits. They hold that as
long as the defendant can ask for both DNA testing
and a new trial in the same pleading, that is sufficient
to trigger statutory tolling under Antiterrorism and
Effective Death Penalty Act (AEDPA). But that cannot be the rule where the first phase of the process in
all iterations is merely for discovery. Only when that
discovery produces exculpatory results is statutory
tolling required. This is not only the proper reading of
§ 2244(d)(2), but it also aligns with § 2244(d)(1)(D),
which allows an alternative limitations period that
starts only after the petitioner obtains new evidence
in support of a constitutional claim. That way, only
those with favorable results in hand could cross the
threshold for habeas review.
3
Second, the motion for DNA testing must be
“properly filed” under (d)(2), and Kares’s was not. The
Sixth Circuit misconstrued state law in holding that
the only filing condition a petitioner need satisfy is filing in the correct trial court. In actuality, the DNAtesting statute has four filing conditions—one for jurisdiction and three pleading requirements. Kares
met the first, but not the latter three. For example,
Kares had to plead that the results of any prior DNA
testing were inconclusive. Plainly, he could not since
the DNA in this case decisively matched to Kares. The
Sixth Circuit’s analysis ignores this Court’s dictates to
differentiate between filing conditions and relief conditions. This Court should rectify this error.
The Court should thus grant this petition or, alternatively, peremptorily reverse.
STATEMENT OF THE CASE
Kares sexually assaulted his girlfriend’s 16-yearold daughter at his apartment, where he lured her under the pretense of hiring her to clean his horse saddle. Despite Kares’s denial of any sexual contact, DNA
recovered from both her cervix and her vagina
matched to Kares with 1-in-2.8-quintillion odds.
Trial facts
Kares had been dating the 16-year-old victim’s
mother. 1 App. 216a. One day, he told the victim he
1 The Michigan Court of Appeals outlined these facts after re-
viewing the state-court record and they are therefore presumed
correct under 28 U.S.C. § 2254(e)(1). See Sumner v. Mata, 449
U.S. 539, 545–46 (1981).
4
would pay her to clean his horse saddle at his apartment. Id. But Kares had other plans. When she arrived, Kares gave her cigarettes and a pair of earrings,
and he renewed his prior offer to help emancipate her
from her mother. Id. at 217a.
As the victim cleaned the horse saddle, Kares disappeared into his bedroom. Id. He beckoned her inside
by asking if some pants were hers. Id. He then closed
the door, caressed her face, and said they needed to
talk. Id. The victim said no, but Kares persisted. Id.
He threatened her: “don’t make me hurt you.” Id. And
he asked: “what do you think I’m doing this for? What
do you think I’m doing all this for you for?” Id.
Kares ordered the victim to strip and took pictures
of her, threatening to disseminate them if she ever
told anyone what he did. Id. Kares then made the victim perform fellatio on him, and he vaginally raped
her. Id. at 218a.
As both got dressed, Kares said he thought she
would “be more into it,” and asked if she had ever had
sex before. Id. Kares also expressed concern about the
police showing up at his door. Id. The victim assured
him she would not say anything. Id. She stayed to finish the saddle and to eat with Kares, then her friend
picked her up. Id. The victim promptly disclosed the
rape to her friend and her mother. Id.
Most pertinent to the issues presented in this petition, a rape kit was performed shortly thereafter. Id.
It revealed a perianal tear consistent with sexual contact. Id. The nurse also collected samples of a white
substance from the victim’s cervix and vagina, both of
which matched to Kares’s DNA. Id. at 218a–219a. The
5
odds of the DNA belonging to anyone else were 1 in
2.8 quintillion. (8/29/12 Trial Tr., R. 21-6, Page ID
#755, 757.)
At trial, Kares conceded that the victim went to
his apartment, but he denied any sexual contact with
her. App. 219a. He instead claimed that she must
have retrieved his DNA from a different woman’s vaginal condom he had discarded several days prior. Id.
But Kares admitted he did not know why the victim
would have falsely accused him of sexual assault. Id.
The jury rejected Kares’s denials and convicted
him of third-degree criminal sexual conduct (with
force or coercion) under Michigan Compiled Laws
§ 750.520d(1)(b). Id. The trial court sentenced him as
a fourth-offense habitual offender to 25 years to 58
years, 4 months’ imprisonment. Id. at 216a.
State post-conviction proceedings
Kares’s conviction and sentence were affirmed on
direct appeal. App. 216a, 214a. His conviction became
final on December 28, 2014, 90 days after his time to
petition this Court for a writ of certiorari. See Sup. Ct.
R. 13, and Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). He then had one year from that date to file either his federal habeas petition or an application for
state post-conviction or other collateral review to toll
the habeas limitations period. See § 2244(d)(1) and (2).
Kares elected to file a state motion for relief from
judgment 296 days into the limitations period. The
trial court denied the motion on both procedural and
substantive grounds. Kares’s appeals were unsuccessful, with the Michigan Supreme Court denying leave
6
to appeal on December 27, 2017. People v. Kares, 904
N.W.2d 605 (Mich. 2017) (unpublished table decision).
Kares then had 69 days remaining on his habeas limitations period, which expired on March 6, 2018.
Prior to that expiration, Kares filed his post-conviction motion for DNA testing.
The DNA motion
On February 9, 2018, Kares filed a pro se motion
for post-conviction DNA testing with the state trial
court under Michigan Compiled Laws § 770.16. App.
210a–211a.
The statute operates in two, sequential phases,
with the first seeking discovery—DNA testing and results—and the second seeking a new trial—once exculpatory DNA results are obtained. See People v.
Poole, 874 N.W.2d 407, 414 (Mich. Ct. App. 2015). The
motion must also be filed in the convicting court.
Mich. Comp. Laws § 770.16(2).
The first phase, which itself has two components,
sets forth the pleading requirements for DNA testing.
Mich. Comp. Laws § 770.16(1) (“[A] defendant . . . who
establishes that all of the following apply may petition
the circuit court to order DNA testing. . . .” (emphasis
added)). Under the first component of the first phase,
defendants convicted after January 8, 2001, such as
Kares, must establish all of the following to even get
in the door:
(a) That DNA testing was done in the case or under this act.
7
(b) That the results of the testing were inconclusive.
(c) That testing with current DNA technology is
likely to result in conclusive results.
Id.
If the defendant satisfies those conditions, then he
must make several additional showings under the second component of the first phase to compel the trial
court to order DNA testing. He “shall allege that biological material was collected and identified during
the investigation of [his] case.” Mich. Comp. Laws
§ 770.16(3). Then, the “court shall order DNA testing”
if the defendant presents prima facie proof that the
biological material to be tested is material to the issue
of identity; a sample of biological material is available
for testing; that biological material was not previously
tested or present testing methods were not previously
available; and the identity of the perpetrator was at
issue at trial. Mich. Comp. Laws § 770.16(4).
The second phase determines if the defendant is
entitled to a new trial “based on” the results of the
DNA testing. Mich. Comp. Laws § 770.16(1) (emphasis added). “If the results of the DNA testing are inconclusive or show that the defendant is the source of
the identified biological material,” then “[t]he court
shall deny the motion for new trial.” Mich. Comp.
Laws § 770.16(7). But if the results show that the defendant is not the source, the trial court must appoint
counsel and hold a hearing for the defendant to show,
by clear and convincing evidence, that only the true
perpetrator could be the source of the DNA, the sample was not contaminated or degraded, and a new trial
8
is warranted based on the defendant’s purported DNA
exclusion balanced against the other evidence in the
case. Mich. Comp. Laws § 770.16(8).
Here, Kares’s motion read, in its entirety and
without a brief in support:
NOW COMES, Stephen John Kares, the
herein Defendant in pro se, seeking testing of
biological material pursuant to MCL 770.16,
stating the following in support:
1. Stephen John Kares, came before this
Honorable Court on August 28, 2012, for a
jury trial charged with two counts of CSC
I.
2. At trial the Prosecution introduce[d] forensic evidence against the Defendant. However during the course of the proceedings
critical discrepancies were discovered regarding the collection sites of the evidence
being presented.
3. There remains numerous items of evidence
that were collected by S.A.N.E., Alysia Gilreath, as established by her trial testimony, (TsII.pg.232); and pg 248), and by
the Medical Forensic Examination Record,
under Forensic Specimen Collection, that
have not been tested for biological material. (Exhibit A). Further during the course
of the investigation Shiawassee County
Sheriff Deputies seized multiple items of
bedding from the Defendant’s residence
9
that have not been tested for biological material. (Exhibit B).
4. The biological material contained within
these items will directly challenge key offense elements which were necessary to
convict the herein Defendant. Thus Defendant is entitled to an Evidentiary Hearing on this matter and for this Court to enter an Order for the requested testing to be
performed. See: People v Hernandez-Orta,
480 Mich 1101 (2008).
5. It is highly probable that with the results
from this testing of the biological material
the jury would have rendered a different
verdict. For this evidence directly challenges the elements of identity and sexual
penetration.
Relief Requested
THEREFORE, Stephen John Kares, moves
this Honorable Court to ORDER the testing of
the specific items previously set forth herein
that were collected and identified during the
investigation which led to the conviction in
this matter. And for a NEW TRIAL based
upon the results of the testing of said biological material.
Furthermore that this Court will appoint
counsel to represent Stephen John Kares and
GRANT any other relief deemed necessary.
App. 210a–211a.
10
A week after the motion was filed, the trial court
denied it for failure to satisfy the statutory pleading
requirements: “In sum, Defendant’s motion does not
make the showing required for him to file a motion
under MCL 770.16.” Id. at 207a–208a (emphasis
added). The trial court denied DNA testing and did
not even reach the question of a new trial. Id.
The Michigan Court of Appeals and the Michigan
Supreme Court denied Kares’s requests for appellate
review. Id. at 203a, 205a.
The habeas proceedings in district court
Kares filed his federal habeas petition on December 21, 2018, while his application for leave to appeal
in the Michigan Supreme Court was still pending. Before the State was ordered to respond, the magistrate
judge issued a report and recommendation that the
petition should be dismissed as untimely. App. 193a–
202a. Kares objected, contending that his state motion
for DNA testing tolled the limitations period under
§ 2244(d)(2). The district judge rejected the report and
recommendation and ordered the State to respond to
the petition. Id. at 187a–192a. The State did so.
The magistrate judge again concluded that Kares’s habeas petition was untimely, rejecting Kares’s
tolling argument. 2 Id. at 65a. The magistrate judge
2 The magistrate judge alternatively concluded that Kares’s DNA
motion could be considered a second or successive state motion
for relief from judgment under Mich. Ct. R. 6.500, et seq., which
would not have been properly filed until he obtained exculpatory
DNA results. App. 88a. The State does not advance that argument here.
11
additionally rejected each of Kares’s habeas claims on
the merits. Id. at 99a–184a.
The district judge adopted the report and recommendation, agreeing that the habeas petition was untimely due to a lack of tolling for the DNA motion. 3 Id.
at 35a. The district judge further rejected any entitlement to equitable tolling because Kares had not advocated for it. Id. at 39a–40a.
The district judge went on to alternatively reject
the merits of Kares’s various claims, adopting the
magistrate judge’s analyses and denying Kares’s objections. Id. at 41a–61a. The district judge issued a
certificate of appealability (COA) only on the timeliness issue. Id. at 27a.
The Sixth Circuit’s decision
Given the COA, Kares appealed to the Sixth Circuit. He also motioned the Sixth Circuit to expand the
COA to his Sixth Amendment sentencing claim under
Alleyne v. United States, 570 U.S. 99 (2013).
In a published opinion, the Sixth Circuit reversed
on the timeliness issue and denied Kares’s request to
expand the COA. App. 2a. The court found that Kares’s DNA motion met both requirements for tolling
under § 2244(d)(2), which were (1) the motion was
“properly filed,” meaning it met the state procedural
rules for filing with the court, and (2) it qualified as
an “application for State post-conviction or other
3 The district court also relied on the second-or-successive frame-
work in reaching its decision. App. 36a–38a.
12
collateral review with respect to the pertinent judgment or claim.” Id. at 8a–21a.
The Sixth Circuit first held that the motion was
“properly filed,” finding that the only procedural requirement is for a DNA motion to be filed with the correct circuit court under § 770.16(2), which Kares did.
Id. at 12a. The court rejected the notion that there are
any other procedural hurdles, holding that what the
State averred were filing conditions under the statute
were instead relief conditions. Id. at 13a–14a.
To the second point regarding the type of application for review, the Sixth Circuit determined that because Michigan’s DNA statute allows a defendant to
move for both DNA testing and a new trial in the same
pleading, it called for a “judicial reexamination” of the
judgment. Id. at 17a–18a (citing Wall v. Kholi, 562
U.S. 545, 553 (2011)). The Sixth Circuit compared
Michigan’s statute to Texas’s DNA statute, which the
Fifth Circuit has held tolls the habeas limitations period. Id. at 16a–17a (citing Hutson v. Quarterman, 508
F.3d 236, 238–39 (5th Cir. 2007)). The Sixth Circuit
acknowledged, however, that the “majority of circuits
to examine this issue have determined that post-conviction motions for discovery or DNA testing are not
forms of collateral or post-conviction review.” Id. at
15a (citing cases from the Second, Seventh, Ninth,
Tenth, and Eleventh Circuits).
Finally, the Sixth Circuit declined to expand the
COA to include Kares’s Sixth Amendment sentencing
claim. Id. at 21a–24a. The court concluded that the
claim was procedurally defaulted and that the default
could not be excused by Kares’s assertion of ineffective
assistance of appellate counsel. Id. at 22a–24a. The
13
claimed excuse was unavailing because it was itself
defaulted, given that Kares failed to first raise it in
the state courts. Id. at 23a–24a (citing Edwards v.
Carpenter, 529 U.S. 446, 453–54 (2000)). 4 The Sixth
Circuit therefore held that habeas review was
barred. 5 Id. at 24a.
Kares subsequently sought panel rehearing on the
COA issue. The Sixth Circuit ordered the State to respond. Following the State’s response, the court denied rehearing. Id. at 228a.
4 In a footnote, the Sixth Circuit addressed Kares’s concern that
failure to expand the COA could render any opinion on the timeliness issue merely advisory. App. 24a n.7. The court allayed any
concerns, noting: “The question of whether Kares’ habeas petition was timely filed presents a case or controversy that this
Court must resolve, even though this Court ultimately also decides to affirm the district court’s decision on the merits of that
petition.” Id.
5 The State acknowledges that it is ultimately a “prevailing
party” given that the Sixth Circuit did not grant habeas relief.
But the Sixth Circuit’s published decision that post-conviction
motions for DNA testing in Michigan statutorily toll the habeas
limitations period is most certainly adverse to the State and will
affect every future habeas case involving this issue. The State
can thus demonstrate “injury, causation, and redressability” to
confer standing. See Camreta v. Greene, 563 U.S. 692, 700 (2011).
Further, Congress has permitted any party, prevailing or otherwise, to petition this Court for certiorari. 28 U.S.C. § 1254(1) (emphasis added); see also Camreta, 563 U.S. at 700 (“That language
[in § 1254(1)] covers petitions brought by litigants who have prevailed, as well as those who have lost, in the court below.”). Thus,
there is no bar to review.
14
REASONS FOR GRANTING THE PETITION
I.
Michigan’s statute allowing a prisoner to
request DNA testing cannot statutorily toll
the habeas limitations period under
§ 2244(d)(2) because it is nothing more than
a discovery request until exculpatory DNA
results trigger a new-trial inquiry, as in the
Second, Seventh, Ninth, Tenth, and Eleventh
Circuits and contrary to the holdings of the
Fifth and Sixth Circuits.
The circuits have formed a rift regarding whether
post-conviction motions for DNA testing call for either
discovery material or a judicial reexamination of the
criminal judgment. This distinction is important because it determines whether such motions will toll the
habeas limitations period under AEDPA, § 2244(d)(2).
Most of the circuits have said DNA motions merely
provide a means for discovery, the results of which the
defendant can then use to argue for a new trial. The
Fifth Circuit, and now the Sixth, disagree. They hold
that if the defendant can make both requests in the
same proceeding, tolling must ensue.
The prevailing principle in all these cases, however, is that a motion for post-conviction DNA testing
is nothing more than a discovery motion unless and
until the defendant obtains exculpatory DNA results
on which he can base a request for a new trial. Accordingly, tolling for federal habeas purposes should not
begin until the new-trial inquiry because that is the
only component that calls for a “judicial reexamination” of the judgment under this Court’s precedent.
15
Indeed, if DNA testing results in exculpatory results, there is no need to invoke statutory tolling at
all. Under AEDPA’s statute of limitations, the limitations clock begins ticking anew with the discovery of
new exculpatory evidence under § 2244(d)(1)(D).
A. The state application for post-conviction
review
must
seek
a
judicial
reexamination of the judgment, not
simply discovery material.
The one-year statute of limitations under AEDPA
is statutorily tolled during the pendency of a properly
filed state application for post-conviction or other collateral review. § 2244(d)(2). Because Congress did not
define the term “collateral review,” this Court needed
to do so. Wall, 562 U.S. at 551. The Court defined “collateral review” as a “judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” Id. at 553. The Court provided further
guidance by example: “A motion to reduce sentence is
unlike a motion for post-conviction discovery or a motion for appointment of counsel, which generally are
not direct requests for judicial review of a judgment
and do not provide a state court with authority to order relief from a judgment.” Id. at 556 n.4.
This distinction makes good sense. A discovery
motion seeks a basis on which to challenge a conviction; it is not in itself a challenge to the conviction, i.e.,
a request for review of the judgment. Indeed, the circuit courts have long recognized this distinction, even
before Wall. See, e.g., Ramirez v. Yates, 571 F.3d 993,
1000 (9th Cir. 2001) (agreeing with the Second Circuit
that discovery motions do not toll); Hodge v. Greiner,
16
269 F.3d 104, 107 (2d Cir. 2001) (noting that a discovery motion “did not challenge [the petitioner’s] conviction,” but “[r]ather, it sought material he claimed
might be of help in developing such a challenge”);
Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.
1998) (holding that AEDPA “does not convey a statutory right to an extended delay . . . while a habeas petitioner gathers every possible scrap of evidence that
might . . . support his claim”).
The question then is, do state motions for postconviction DNA testing provide for “judicial reexamination of a judgment” or are they merely requests for
discovery, the results of which could later be used to
seek such judicial reexamination? The circuits disagree on the answer, necessitating clarification from
this Court.
B. The circuits fall into majority and
minority views on this issue, and the
Sixth Circuit has aligned itself with the
minority view.
The circuits are divided on the question of
whether post-conviction motions for DNA testing will
toll the habeas limitations period under § 2244(d)(2).
There is a majority view—holding that such motions
do not toll because they merely seek discovery—and a
minority view—holding that if such motions request
discovery and a new trial, they will toll the limitations
period. The Sixth Circuit has erroneously adopted the
minority view.
The majority view. As the Sixth Circuit acknowledged in its opinion in this case, “[t]he majority of
17
circuits to examine this issue have determined that
post-conviction motions for discovery or DNA testing
are not forms of collateral or post-conviction review.”
App. 15a. Those include the Second, Seventh, Ninth,
Tenth, and Eleventh Circuits. See Woodward v. Cline,
693 F.3d 1289, 1293 (10th Cir. 2012); Price v. Pierce,
617 F.3d 947, 952–53 (7th Cir. 2010); Ramirez, 571
F.3d at 993; Brown v. Sec’y for Dep’t of Corr., 530 F.3d
1335, 1337 (11th Cir. 2008); and Hodge, 269 F.3d at
104. Ramirez and Hodge concerned strictly discovery
motions, while Price, Woodward, and Brown specifically dealt with motions for post-conviction DNA testing in Illinois, Kansas, and Florida, respectively.
The unifying factor in the latter cases was that the
motions merely provided a means to obtain the DNA
testing and results, which could later be used to request a new trial. See Woodward, 693 F.3d at 1293;
Price, 917 F.3d at 952–53; and Brown, 530 F.3d at
1337. They were not in themselves requests for a new
trial. That is, they merely sought discovery. As Brown
observed, it is “well-settled that a discovery motion
does not [toll].” 530 F.3d at 1338 (citing Hodge, 269
F.3d at 107, and Flanagan, 154 F.3d at 199); accord
Wall, 562 U.S. at 556 n.4.
District courts in seven additional states have
reached the same conclusion, as the magistrate judge
recognized in this case. See App. 83a–85a (citing decisions from district courts in Washington, Arizona,
North Carolina, Pennsylvania, Ohio, Rhode Island,
and California).
The minority view. “Only the Fifth Circuit has determined that a motion for post-conviction DNA testing qualifies as a collateral review motion.” App. 16a
18
(citing Hutson, 508 F.3d at 237). Hutson analyzed
Texas’s post-conviction DNA statute, Tex. Code Crim.
P. art 64.01. 508 F.3d at 238. Under that statute, a
Texas defendant must meet certain requirements before testing may be ordered, including that the evidence was not previously tested, identity was an issue
in the case, and a preponderance of the evidence
shows that the defendant would not have been convicted with exculpatory DNA results. Id. Then, once
the results are examined by the trial court, the court
“shall hold a hearing and make a finding as to
whether it is reasonably probable that the person
would not have been convicted had the results been
available during the trial of the offense.” Id.
The Fifth Circuit held that because the Texas
statute ultimately calls for the trial court to hold a
hearing after ordering testing and to make a finding
as to exoneration, a filing under the Texas DNA statute tolls the habeas limitations period under
§ 2244(d)(2). Id. at 240. The court reasoned that “the
motion for post-conviction DNA proceedings is seeking to challenge that judgment by potentially requiring that the trial court hold a hearing to determine
whether it was reasonably probable that the convicted
person would have been acquitted given the DNA results.” Id. at 239. Thus, the court held, “Hutson’s motion for DNA testing is a request for ‘review’ of the
judgment pursuant to which he is incarcerated.” Id. In
essence, Hutson held that the Texas statute provides
for both discovery and review of the underlying judgment, thus qualifying for tolling under § 2244(d)(2).
But subsequent Texas precedent has called Hutson into serious question. As the magistrate judge
19
noted below, whatever vitality Hutson may have previously had is now defunct considering more recent
state law to the contrary. App. 85a–86a n.9 (“The Fifth
Circuit’s holding in Hutson is suspect,” and the premise upon which it was based “is no longer the case.”).
The magistrate judge found strong support in Justice
Thomas’s dissent in Skinner v. Switzer, 562 U.S. 521,
538 n.2 (2011), which Justices Kennedy and Alito
joined. Justice Thomas noted that the Court of Criminal Appeals of Texas rendered Hutson’s reasoning incorrect. Id. The Texas court held, “The jurisdictional
purpose of Chapter 64 is simply to provide deserving
applicants with a mechanism for post-conviction DNA
testing and a favorable finding on the record if justified by that testing; it does not include any other remedy or form of relief in the convicting court.” Texas v.
Holloway, 360 S.W.3d 480, 485–90 (Tex. Crim. App.
2012), overruled in part on other grounds by Whitfield
v. Texas, 430 S.W.3d 405, 409 (Tex. Crim. App. 2014).
Accordingly, the Fifth Circuit was wrong: the Texas
DNA statute solely provides a means of discovery, not
review as well.
As for district court support of the minority view,
only two concur. See App. 86a (citing decisions from
district courts in New Jersey and New York).
The Sixth Circuit. In this case, the Sixth Circuit
aligned itself with Hutson. The court reasoned that
“the statute at issue in the Fifth Circuit case, Texas
Code of Criminal Procedure Article 64, is the most
analogous to MCL § 770.16.” App. 16a. “Unlike the
statutes at issue in the other circuits’ decisions, Texas’
statute provides a mechanism for review of the underlying judgment by setting forth the procedures that a
20
court must follow after receiving the results of postconviction DNA testing.” Id. at 16a–17a (emphasis in
original). The Sixth Circuit then held that “[s]imilarly,
upon receipt of DNA testing results showing that the
defendant is not the source of the identified biological
material, section (8) of MCL § 770.16 requires a reviewing court to hold a hearing and decide whether
the defendant is entitled to a new trial.” Id. at 17a.
The Sixth Circuit rejected the State’s argument to
the contrary: that Michigan’s DNA statute provides
for discovery material unless and until the trial court
orders DNA testing and the defendant obtains an exculpatory result. Id. The Sixth Circuit construed the
State’s argument as one based on the success or failure of the motion, rather than the outcome for which
the DNA motion calls—either discovery or a new trial.
Id. at 17a–18a. As the Sixth Circuit put it, “Petitioner’s failure to obtain relief does not address
whether the statute itself calls for collateral review of
the judgment.” Id. at 18a. The Sixth Circuit also found
it significant that the Michigan statute does not require defendants to file separate motions for DNA
testing and for a new trial based on the results of any
testing, that only one such motion is necessary. Id.
But that reading does not align with Wall. It is
only the new-trial phase of the process that calls for a
“judicial reexamination” of the judgment. That is the
point at which any tolling should be triggered. And
without Hutson, given its obsolete reasoning, the
Sixth Circuit joins the Fifth as the lonely outliers on
this issue.
21
C. The minority view is incorrect; the line is
drawn between discovery and judicial
review to facilitate exhaustion in the
state courts, obviating any need for
federal tolling unless and until DNA
testing is ordered and exculpatory
results are obtained.
The Fifth and Sixth Circuits got it wrong. Even if
a motion for DNA testing can simultaneously ask for
a new trial in addition to DNA testing, the new-trial
inquiry is triggered only when the trial court grants
DNA testing and the defendant receives an exculpatory test result. Thus, it is far from guaranteed that
the trial court will engage in a new-trial analysis at
all, and yet, in the Fifth and Sixth Circuits, a DNA
motion will always toll the habeas limitations period.
The discovery-only aspect of the motion does not call
for a “judicial reexamination” of the judgment and
therefore cannot toll under § 2244(d)(2).
The difference between the majority and minority
views is whether the state mechanism for post-conviction DNA testing seeks only discovery material or
such material and review of the underlying judgment,
regardless of whether or when the former triggers the
latter. But that is the wrong calculus. The fact of the
matter is that all motions for post-conviction DNA
testing are requests for discovery unless and until
testing is ordered and exculpatory results are obtained. To toll the habeas limitations period for the
discovery portion of the process would frustrate the
purpose of AEDPA’s tolling provision to pause the
clock for a state court to determine the validity of the
defendant’s conviction or sentence. This is because
that paused time allows the state courts the
22
opportunity, in the first instance, to correct any mistakes in the criminal-justice process, which may obviate any need for federal habeas review. Indeed, statutory tolling finds its roots in the exhaustion doctrine
requiring habeas petitioners to present all constitutional claims first to the state courts for potential resolution. Artuz v. Bennett, 531 U.S. 4, 10 (2000) (noting
that tolling “enable[s] the exhaustion of available
state remedies—which is the object of § 2244(d)(2)”).
What is more, state courts in Michigan can grant
relief based on factual innocence proved by exculpatory DNA results, see People v. Cress, 664 N.W.2d 174,
182 (Mich. 2003) (standard for granting relief for
newly discovered evidence claims of innocence),
whereas habeas courts can use those same DNA results only as a gateway to address constitutional challenges, see McQuiggin v. Perkins, 569 U.S. 383, 386
(2013) (“We hold that actual innocence, if proved,
serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar . . .
or . . . expiration of the statute of limitations.”). In fact,
habeas courts are barred from granting relief based
solely on an actual-innocence claim. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“This rule is grounded
in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation
of the Constitution—not to correct errors of fact.”).
That is why the limitations period is paused only
once the habeas petitioner has a factual ground to
challenge the validity of his conviction and not for the
time it takes him to search for those factual grounds.
The federal concern is a potential constitutional or
23
legal infirmity that the state courts should be allowed
to correct before resorting to federal review.
It is true that the statutes at issue in the Seventh,
Tenth, and Eleventh Circuit cases called for separate
filings to seek a new trial, whereas Michigan does not.
But while Michigan does not require an independent
filing to seek a new trial, it does require an independent inquiry for a new trial. That inquiry follows the
discovery phase only if the defendant obtains the discovery he requests, i.e., exculpatory DNA test results.
§ 770.16(8). The motion for new trial must be “based
on the results of that [DNA] testing.” § 770.16(1) (emphasis added). And the Michigan courts are firm that
they are “not statutorily permitted to conflate the two
phases of analysis.” Poole, 874 N.W.2d at 414. Thus,
there is a hard line drawn between ordering testing
and weighing the propriety of a new trial. Put differently, it is “not until after the DNA testing ha[s] occurred . . . that the defendant’s separate claim of actual innocence [i]s ripe.” Price, 617 F.3d at 952.
None of the discovery phases in any post-conviction motion for DNA testing call for a “judicial reexamination” of the judgment, as required under Wall.
Even if the motions for testing and for a new trial are
not separate, the analyses very much are. See Poole,
874 N.W.2d at 414. And the new-trial analysis may
not come for weeks or months even if the defendant
does meet the threshold for testing and receives an
exculpatory result. Congress could not have intended
§ 2244(d)(2) to operate in that fashion. Accordingly,
the habeas limitations period should not be tolled unless and until the new-trial inquiry is triggered.
24
D. The effect of a post-conviction DNA
motion on the habeas limitations period
is better addressed by starting the clock
when the petitioner obtains exculpatory
DNA results under § 2244(d)(1)(D).
If the above approach seems untenable, Congress
has already provided a more prudent solution: the
“new evidence” timeline under § 2244(d)(1)(D). In that
paradigm, the limitations clock would begin ticking
once the petitioner obtained exculpatory DNA results.
Congress has outlined four scenarios from which
the one-year habeas limitations period shall run. It is
the latest of those scenarios that governs. § 2244(d)(1).
While the most common scenario is the finality of the
defendant’s conviction upon conclusion of direct review under § 2244(d)(1)(A), another is “the date on
which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” under § 2244(d)(1)(D). 6 Thus, if
the petitioner has in hand new DNA test results tending to show that he did not commit the crime for which
he was convicted, and on which he can base a constitutional claim—as is required for habeas review—
then the limitations period would begin on that date.
In fact, the Eleventh Circuit follows that approach. “If such [DNA] motions produce newly discovered exculpatory evidence, AEDPA grants the movant
a year from that discovery, subject to tolling while
6 AEDPA employs a similar standard for second-or-successive pe-
titions if “the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence.” 28
U.S.C. § 2244(b)(2)(B).
25
related state collateral attacks are advanced, to challenge their conviction in federal habeas proceedings.”
Brown, 530 F.3d at 1338 (citing § 2244(d)(1)(D)). The
Tenth Circuit has echoed that reasoning, noting this
approach “does not create an impediment to federal
review based on new DNA evidence.” Woodward, 693
F.3d at 1294 (citing Brown, 530 F.3d at 1338).
This is a more prudent metric for timeliness, as
envisioned by AEDPA itself. If a defendant requests
new DNA testing, the trial court orders it, and the results are exculpatory, then either the petitioner will
get a new trial under state law or he can file a habeas
petition. The petition will be timely so long as he files
it within one year of obtaining the exculpatory test results. See § 2244(d)(1)(D). This is a fairer, more just
path for all parties because it will ensure that all deserving petitioners—and only deserving petitioners—
will have their claims heard. This path will also promote exhaustion of claims in the state courts and
thereby possibly relieve any need for federal intervention. After all, if a petitioner is not even eligible for
new testing to be ordered, there should not have been
any need for tolling under AEDPA in the first place. 7
Statutory tolling, by contrast, will allow habeas
review for all petitioners regardless of the merit of
7 Equitable tolling is another possibility, via the actual-inno-
cence gateway to review. “[A] convincing showing of actual innocence enable[s] habeas petitioners to overcome a procedural bar
to consideration of the merits of their constitutional claims,” including the statute of limitations. McQuiggin, 569 U.S. at 386.
Truly exculpatory DNA test results would be particularly compelling proof of actual innocence. See Dist. Attorney’s Office for
3d Jud. Dist. v. Osborne, 557 U.S. 52, 62 (2009). Such proof could
open the gate to habeas review, even if the petition was untimely.
26
their DNA motions. This has significant potential for
abuse. For instance, Michigan does not limit the number of DNA motions a defendant may file. See Poole,
874 N.W.2d at 412. So, Michigan petitioners could
achieve indefinite delay by strategically filing such
motions. Under § 2244(d)(2), those petitioners will get
an automatic pause upon filing their DNA motion, regardless of whether they ever obtain new testing, let
alone exculpatory results. “This would turn
§ 2244(d)(2) into a de facto extension mechanism,
quite contrary to the purpose of AEDPA, and open the
door to abusive delay.” Artuz, 544 U.S. at 413. That
cannot be how Congress intended AEDPA to operate.
Lastly, if a prospective habeas petitioner has any
lingering concern about the status of his limitations
period as he pursues his state remedies, he need not
fear. He can file what this Court has dubbed a “ ‘protective’ petition in federal court and ask[ ] the federal
court to stay and abey the federal habeas proceedings
until state remedies are exhausted.” Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines v. Weber, 544 U.S. 269, 278 (2005)). Accord Price, 617 F.3d
at 954–55 (citing Pace, 544 U.S. at 416). 8
In sum, DNA motions cannot and should not toll
the limitations period under § 2244(d)(2) unless and
until the petitioner obtains exculpatory DNA results
to then seek a new trial. But even then, the best path
forward is to instead restart the limitations clock upon
discovery of exculpatory DNA results.
8 Or he could file a petition with his claims unrelated to his dis-
covery and then file a second-or-successive petition when the favorable DNA results emerge under § 2244(b)(2)(B).
27
II. Kares did not “properly file” his DNA motion
under state law where he did not even
attempt to satisfy the minimal pleading
requirements set forth in Michigan’s postconviction DNA testing statute.
Even if a post-conviction motion for DNA testing
in Michigan does qualify as an application for review
under § 2244(d)(2), Kares’s motion cannot trigger statutory tolling for another, independent reason: it was
not “properly filed” under state law. The Sixth Circuit
erroneously held that Michigan defendants need only
file in the convicting court for the filing to be proper.
In reality, there are three additional filing conditions,
none of which Kares satisfied or even attempted to
satisfy. Hence, he is not entitled to tolling, and his habeas petition should have been dismissed as untimely.
A. State law governs whether a state
application for post-conviction review is
“properly filed” under § 2244(d)(2).
An application for post-conviction review “is
‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings.” Artuz, 531 U.S. at 8 (emphasis omitted).
“These usually prescribe, for example, the form of the
document, the time limits upon its delivery, the court
and office in which it must be lodged, and the requisite
filing fee.” Id. (footnote omitted). “In some jurisdictions the filing requirements also include, for example, preconditions imposed on particular abusive filers
. . . or on all filers generally.” Id.
To determine whether a filing under § 2244(d)(2)
is “proper,” the federal courts look to state law. In
28
Artuz, this Court consulted New York law to ascertain
the applicable filing conditions. 531 U.S. at 10–11.
Further, in Pace, this Court examined Pennsylvania
law and relied on the state court’s holding that the filing at issue there was improper under state law. 544
U.S. at 417 (“Because the state court rejected petitioner’s PCRA petition as untimely, it was not
‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).”). The courts of appeals uniformly defer to state law as well. See, e.g., Loftis v.
Chrisman, 812 F.3d 1268, 1272 (10th Cir. 2016), and
Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir. 2003).
In determining whether a post-conviction application is properly filed, courts distinguish between conditions for filing (i.e., satisfaction of the requirements
to even initiate a petition), and conditions for obtaining relief (i.e., raising a meritorious, non-defaulted argument). Artuz, 531 U.S. at 11 (distinguishing between a condition to filing, which, if not fulfilled,
would render a motion improperly filed, and a condition to obtaining relief, which, if not fulfilled, has no
bearing on whether the motion was properly filed); see
also Pace, 544 U.S. at 417 (distinguishing between
conditions that “go to the very initiation of the petition
and a court’s ability to consider that petition,” and
those that “go to the ability to obtain relief”).
So, if the filing conditions are not met, such an application is not properly filed and therefore does not
serve to toll the statute of limitations. If, on the other
hand, only the relief conditions are not met, the application, though meritless, can still be properly filed and
serves to toll the statute of limitations.
29
Kares’s post-conviction DNA motion was not
properly filed in this case, for two reasons. First, the
Sixth Circuit conflated Michigan’s post-conviction
DNA motion filing conditions with relief conditions.
Second, Kares did not even plead, let alone satisfy, the
filing conditions.
B. The Sixth Circuit misconstrued state law
and conflated the requisite filing
conditions with relief conditions.
The Sixth Circuit held that the only filing condition for a post-conviction DNA motion in Michigan is
that the motion must be filed in the correct trial court.
App. 12a (citing § 770.16(2), which states that a “petition under this section shall be filed in the circuit
court for the county in which the defendant was sentenced”). That is incorrect.
The Sixth Circuit ignored the preceding provision
in the statute, which states that a defendant “may petition” the trial court for DNA testing only if the defendant “establishes that all of the following apply”:
(a) That DNA testing was done in the case or
under this act.
(b) That the results of the testing were inconclusive.
(c) That testing with current DNA technology
is likely to result in conclusive results.
§ 770.16(1) (emphasis added). The phrase “may petition” is initiating language—that is, filing language.
30
See Pace, 544 U.S. at 417 (noting that filing conditions
“go to the very initiation of a petition”).
In reaching its erroneous conclusion, the Sixth
Circuit instead construed the latter pleading requirements as factors to determine the success or failure of
the motion on the merits, i.e., relief conditions. App.
12a–14a. That reading rested on two faulty premises.
The first is that judicial scrutiny cannot be used
to evaluate the propriety of a filing. This Court has
already rejected such reasoning. In Pace, the habeas
petitioner argued that “conditions to filing are merely
those conditions necessary to get a clerk to accept the
petition, as opposed to conditions that require some
judicial consideration.” 544 U.S. at 414 (cleaned up;
emphasis in original). Not so, said this Court: the need
for “judicial scrutiny” does not automatically convert
a filing condition to a relief condition. Id. (citing Artuz,
531 U.S. at 9). While in this case the Sixth Circuit
acknowledged Pace’s holding that judicial scrutiny is
not in itself fatal to the propriety of a filing, App. 11a,
the court nevertheless treated judicial scrutiny as if it
were fatal. The court summarily concluded that the
filing conditions were instead relief conditions that
speak to the success or failure of the motion, not the
propriety of the filing. App. 12a–13a. But this goes to
the heart of using judicial scrutiny to discern the propriety of the filing and conflicts with this Court’s reasoning in Pace.
In addition, the Sixth Circuit contradicted its own
precedent holding that judicial scrutiny can be applied
to filing conditions. See Williams v. Birkett, 670 F.3d
729 (6th Cir. 2012). In Williams, the Sixth Circuit held
that a second or successive motion for relief from
31
judgment in Michigan is not “properly filed” unless
the defendant can meet one or both exceptions to the
general bar against such motions. Id. at 736. The
court deemed the exceptions “conditions to filing” rather than “conditions to obtaining relief,” under Artuz.
Id. at 733. Further, comparing the case to Pace, the
court noted that “Michigan’s rule against successive
motions prevents a second petition from even being
considered by the court,” and “even though M.C.R.
6.502(G)(2) may require judicial scrutiny to determine
whether an exception applies, that does not require
this court to hold that a successive motion in Michigan
may be considered ‘properly filed.’ ” Id. at 733–34. In
this case, the court attempted to distinguish Williams
but only on the basis that Michigan “does not allow”
successive motions for relief from judgment save for
the two exceptions, whereas DNA motions are not so
restricted. App. 13a. That is a distinction without a
difference, because in both cases judicial scrutiny is
required to determine the propriety of the filing.
The second faulty premise is that the clerk’s acceptance of the filing necessarily renders the filing
proper. The Sixth Circuit held that Kares’s DNA motion was properly filed because the trial court did not
reject or “flatly return” the motion. App. 13a. That
analysis stopped too short. This also goes back to Pace,
where this Court rejected the notion of “a juridical
game of ‘hot potato,’ in which a petition will be
‘properly filed’ so long as a petitioner is able to hand
it to the clerk without the clerk tossing it back.” 544
U.S. at 414. Harkening back to judicial scrutiny, the
propriety of a filing does not rest solely with the court
clerk. Artuz held that if a clerk erroneously accepts a
filing, it will be “pending” but not “properly filed.” 531
32
U.S. at 9. Sometimes, as this Court recognized in Pace
and the Sixth Circuit reiterated in Williams, the judge
must engage in some level of analysis to determine if
the filing was proper. If it was not, the judge could dismiss the filing or deny the requested relief for failure
to meet the filing requirements.
The latter is precisely what happened in this case,
where the state trial court denied Kares’s DNA motion
because he “d[id] not make the showing required for
him to file a motion under MCL 770.16.” App. 208a
(emphasis added). The phrasing of the trial court’s order as a denial versus a dismissal, or the fact that such
rejection came from the court rather than the clerk, do
not defeat the point: Kares’s motion was improperly
filed under state law.
C. Having established the correct filing
conditions, Kares did not even attempt to
satisfy them.
In this case, Kares did not even plead, let alone
meet, the filing conditions for his post-conviction DNA
motion. The state trial court rejected Kares’s motion
for that very reason. See App. 208a.
As noted, Michigan’s DNA statute operates in sequential phases. See Poole, 874 N.W.2d at 414. The
first provides a means for discovery while the second
provides a means for relief. Importantly, the first
phase contains the filing conditions. These are requirements the defendant must meet for the trial
court to even consider his motion.
These phases are dispositive in this case because
Kares never even made it to the first phase for testing.
33
The filing conditions for a Michigan post-conviction
DNA motion are clear such that any defendant, and
Kares in particular, would know from the time of filing whether he could meet those conditions. These include simple, factual assessments: whether DNA testing had been done; if so, that the results were inconclusive; and that new testing would likely yield conclusive results. § 770.16(1). It is quite easy for defendants to discern the first two requirements—the results, if any, will be either conclusive or inconclusive.
In Kares’s case, the results were conclusive: the DNA
unassailably matched to him with a probability of one
in 2.8 quintillion. Thus, Kares knew or should have
known that there was previous testing and the results
were not inconclusive, and that he was therefore precluded from post-conviction DNA testing under
§ 770.16(1).
The state trial court concluded as much. The court
noted that Kares did “not address any of these three
prongs,” including failure to identify any biological
testing as DNA testing, made “no argument that the
results were inconclusive,” and failed to “claim that
current testing would yield a conclusive result.” App.
207a. Hence, the trial court concluded, Kares “has not
shown that he qualifies to petition this Court to order
DNA testing.” Id. (emphasis added). And again, at the
end of the opinion, the trial court ruled that Kares
failed to “make the showing required for him to file a
motion under MCL 770.16.” Id. at 208a. Those findings show that Kares’s petition was not “properly
filed” and should not have tolled the habeas limitations period under § 2244(d)(2).
34
As further evidence of his failures, the trial court
found Kares’s efforts lacking under § 770.16(4) for
testing as well. Id. The court found that the exhibits
Kares provided showed “only that investigators collected biological material during the investigation of
this crime,” including biological material from the victim and bedding from Kares’s residence. Id. But Kares
did not establish that the material from the victim “is
still available for testing, that it went untested at the
time of trial, or that it could be subject to more sophisticated testing protocols.” Id. Further, with respect to
Kares’s bedding, that was not in itself biological material, nor did Kares show whether it had previously
been tested. Id.
Finally, Kares made “no argument on the third
prong of the test, that his identity as the perpetrator
was at issue during the trial.” 9 Id. Nor could he—because this was not a “whodunit” case. The competing
theories at trial were that either Kares sexually assaulted the victim or that no one did. Even in his testimony, Kares contended not that someone else raped
the victim but that she fabricated the allegation entirely. Identity is an issue of who, not whether.
For this litany of reasons, Kares plainly failed as
a legal matter to abide by the “the applicable [state]
laws and rules governing filings.” Artuz, 531 U.S. at
8. This Court has been clear that “a petition that cannot even be initiated or considered . . . is not ‘properly
filed.’ ” Pace, 544 U.S. at 417.
9 While Kares testified that he did not have any sexual contact
with the victim, the fact remains that Kares did not plead that
point as required under the statute. See § 770.16(4)(b)(iii).
35
In sum, the Sixth Circuit misinterpreted state law
in concluding that there was a singular filing condition under § 770.16 and that Kares met that condition. In actuality, there are four filing conditions, only
one of which Kares satisfied by filing his motion in the
correct court. Completing only 25% of the state requirements, Kares’s DNA motion was not properly
filed, and tolling under § 2244(d)(2) was not warranted.
36
CONCLUSION
The petition for writ of certiorari should be
granted or, in the alternative, this Court should peremptorily reverse the judgment below.
Respectfully submitted,
Dana Nessel
Michigan Attorney General
Ann M. Sherman
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
ShermanA@michigan.gov
(517) 335-7628
Dated: FEBRUARY 2024
John Pallas
Division Chief
Andrea Christensen-Brown
Scott Shimkus
Assistant Attorneys General
Criminal Appellate and
Parole Appeals Division
Attorneys for Petitioner
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.