Petition for Writ of Certiorari — Sherman Campbell, Warden, Petitioner v. Stephen J. Kares
Supreme Court briefFeb 26, 2024
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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
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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
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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 ...................... 229a–235a
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RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0169p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEPHEN J. KARES,
Petitioner-Appellant,
v.
No. 21-2845
BRYAN MORRISON, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the
Western District of Michigan at Marquette.
No. 2:19-cv-00007—Hala Y. Jarbou, District Judge.
Argued: May 3, 2023
Decided and Filed: August 8, 2023
Before: MOORE, CLAY, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Brendan Bernicker, RODERICK &
SOLANGE MACARTHUR JUSTICE CENTER,
Washington, D.C., for Appellant. Linus BanghartLinn, OFFICE OF THE MICHIGAN ATTORNEY
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GENERAL, Lansing, Michigan, for Appellee. ON
BRIEF: Brendan Bernicker, RODERICK &
SOLANGE MACARTHUR JUSTICE CENTER,
Washington, D.C., Easha Anand, RODERICK &
SOLANGE MACARTHUR JUSTICE CENTER, San
Francisco, California, for Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee. Eugene
M. Gelernter, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York, Matthew McGinnis,
ROPES & GRAY LLP, Boston, Massachusetts, for
Amici Curiae.
_________________
OPINION
_________________
CLAY, Circuit Judge. Petitioner, Stephen Kares,
appeals the district court’s denial of his habeas petition brought pursuant to 28 U.S.C. § 2254. In 2012, a
jury convicted Kares of third-degree criminal sexual
conduct in violation of Mich. Comp. Laws §
750.520d(1)(b). For the reasons set forth below, we
REVERSE in part the district court’s order denying
as untimely Petitioner’s motion to vacate his sentence
but DENY Kares’ motion to expand the certificate of
appealability (“COA”) to include his merits claim.
I. BACKGROUND
A. Factual Background
In 2012, a jury found Kares guilty of raping a 16year-old girl. See People v. Kares, No. 312680, 2013
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WL 6124313, at *1–2 (Mich. Ct. App. Nov. 21, 2013). 1
The victim was the child of a woman whom Kares had
been dating. After the rape, the victim visited a nurse
who examined her and collected samples from her for
a rape kit. Id. at *1. The samples obtained from the
rape kit were tested and the Michigan State Police Forensic Scientist who conducted the testing appeared
at trial and testified that the DNA samples resulted
in a match to Kares’ DNA. Id. At trial, Kares did not
contest that the victim had visited his house on the
night of the rape; instead, he argued that no sexual
contact occurred. Id. at *2. Kares testified that he had
engaged in sexual intercourse with another woman
three or four days prior and had disposed of a vaginal
condom in the trash. Id.
B. Procedural History
Kares was convicted of third degree criminal sexual conduct following a jury trial in Michigan’s
Shiawassee County Circuit Court. At sentencing, the
judge found five “Offense Variables” that increased
Kares’ sentencing range, including the mandatory
minimum. Sentencing Tr., R. 21-8. While Kares’ case
was on appeal to the Michigan Court of Appeals, the
United States Supreme Court decided Alleyne v.
United States, 570 U.S. 99 (2013). Alleyne held that
the Constitution requires any fact that increases the
mandatory minimum penalty for a crime to be found
by a jury beyond a reasonable doubt. 570 U.S. at 116.
1 The factual history provided herein cites to the Michigan
Court of Appeal’s summary of facts and is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). See
Sumner v. Mata, 449 U.S. 539, 546 (1981); see also Coleman v.
Bradshaw, 974 F.3d 710, 717 n.3 (6th Cir. 2020).
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Kares’ appellate counsel failed to raise an Alleyne
claim on direct appeal. Kares’ conviction and sentence
were affirmed by the Michigan Court of Appeals and
then, on September 29, 2014, by the Michigan Supreme Court. The time for Kares to appeal to the Supreme Court of the United States expired 90 days
later, on December 28, 2014. U.S. Sup. Ct. R. 13.
Kares then began collateral review proceedings in
Michigan state court. He filed his first motion for relief from judgment pursuant to Michigan Court Rule
(“MCR”) 6.500 et seq. on October 20, 2015. Through
that motion, Kares raised several issues, including
that his sentence was based on inaccurate information, and that he had ineffective assistance of trial
and appellate counsel. The trial court denied his motion, determining that his claims were procedurally
defaulted and should have been raised on direct appeal. Kares then applied for leave to appeal the denial
of his motion for relief from judgment, citing Alleyne
for the first time. The Michigan Court of Appeals denied Kares’ appeal in a short order. Kares applied for
leave to appeal to the Michigan Supreme Court, but
this request was denied on December 27, 2017.
On February 9, 2018, Kares filed a motion with
the Michigan trial court under Michigan Compiled
Laws (“MCL”) § 770.16 requesting that the court order
additional DNA testing. The motion requested the
testing of biological materials that Kares claims were
not tested, including evidence collected by the nurse
who administered the rape kit 2 and bedding from
2 The nurse who administered the rape kit collected swabs,
smears, wipes, and the victim’s underwear. The forensic scientist
tested all items that were collected and reported that all of the
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Kares’ apartment. The trial court denied his request
on February 12, 2018. In the order denying his request
for biological testing, the trial court noted that Kares’
motion failed to address the statutory requirements
for showing he qualified to petition the Court to order
DNA testing, and he also failed to present proof that
that DNA testing was warranted in his case.
Kares then filed an application for leave to appeal
the trial court’s order denying his request for biological testing. The Michigan Court of Appeals denied him
leave to appeal on August 29, 2018. Kares then applied for leave to appeal to the Michigan Supreme
Court. While that motion was pending, Kares filed the
instant § 2254 petition in federal court on December
21, 2018. The Michigan Supreme Court denied Kares’
application for leave to appeal the denial of his motion
for biological testing on April 2, 2019. Kares then requested that the district court permit him to amend
his § 2254 petition to include claims related to his
DNA testing request. The district court permitted Kares to amend his petition, and he filed his amended
petition on May 28, 2019.
The district court referred Kares’ petition to a
magistrate judge who produced a report and recommendation (“R&R”) determining that the district
court should deny Kares’ petition as untimely. The
swabs (except for the oral swabs), anal and vaginal smears, and
the undergarments tested positive for the presence of semen (but
did not conduct DNA testing on all of the semen). She then DNA
tested the anal and vaginal smears and located genetic material
from Kares and the victim in those samples. Petitioner sought to
have the other swabs DNA tested–those swabs previously tested
positive for the presence of sperm (the speculum, labial fold, and
external swabs).
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R&R analyzed MCL § 770.16 and determined that Kares’ petition for DNA testing was not a properly filed
collateral attack; it also analyzed the merits of Kares’
claims and found that they were either lacking merit
or procedurally defaulted. Kares objected to the R&R,
arguing that his petition was timely, his claims had
merit, and his claims were not procedurally defaulted.
The district court adopted the R&R. In its order,
the court found that Kares’ § 770.16 motion was not a
properly filed application for collateral review; addressed the merits claims to which Kares had objected; and agreed with the R&R that those claims
also lacked merit or were procedurally defaulted. The
district court granted a COA to Kares on the question
of whether motions brought pursuant to MCL § 770.16
toll the statute of limitations under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), but denied a COA on all of Kares’ other claims.
Kares timely filed this appeal. Kares also filed a
motion requesting that the COA be expanded to include his merits claim that the state trial court committed an Alleyne violation and that this claim was
not procedurally defaulted because his state appellate
counsel provided ineffective assistance of counsel.
II. DISCUSSION
A. Timeliness of Habeas Petition
AEDPA sets a time limit for petitioners to apply
for a writ of habeas corpus, requiring a petition to be
filed within one year after the judgment becomes
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final. 3 28 U.S.C § 2244(d)(1)(A). The statute permits
the tolling of the limitations period during the time
period during which “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).
This Court reviews the dismissal of a § 2254 petition de novo. Thomas v. Meko, 828 F.3d 435, 438 (6th
Cir. 2016). Whether the district court properly calculated the timeliness of a habeas corpus petition is reviewed de novo. DiCenzi v. Rose, 452 F.3d 465, 467
(6th Cir. 2006). The district court’s factual findings
are reviewed for clear error. Boggs v. Collins, 226 F.3d
728, 736 (6th Cir. 2000).
In Kares’ case, the statute of limitations began to
run 90 days 4 after the Michigan Supreme Court denied his request for leave to appeal his conviction, on
December 28, 2015. With only 69 days left to file a §
2254 petition, Kares tolled the running of that time
period on October 20, 2015 by filing a motion for relief
from judgment in the Shiawassee County Circuit
Court. The statute of limitations began to run again
once Kares’ post-conviction proceedings terminated on
December 27, 2017. This meant that Kares had until
March 6, 2018—69 days later—to file a federal habeas
petition. Kares did not file his habeas petition until
December 21, 2018. Kares, however, argues that the
3 Section 2244(d)(1) sets forth three additional circumstances
which begin the one-year limitations period, but only the first
ground is at issue in this case.
4 Ninety days is the time period to file a petition for certiorari
to the United States Supreme Court. See U.S. Sup. Ct. R. 13.
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MCL § 770.16 petition for DNA testing, which he filed
on February 9, 2018, tolled the limitations period.
For Kares’ habeas petition to be considered
timely, this Court must answer two questions in the
affirmative: (1) was Kares’ petition for DNA testing
pursuant to MCL § 770.16 properly filed; and (2) are
motions for DNA testing pursuant to MCL § 770.16
considered post-conviction or other collateral review
proceedings that toll the AEDPA limitations period?
We address both questions in turn.
1. Kares’ motion was “properly filed”
MCL § 770.16 permits defendants convicted of a
felony at trial to petition the circuit court where they
were sentenced to order DNA testing of biological materials. The statute permits this sort of petition for
any defendant convicted before 2001, but requires defendants convicted on or after January 8, 2001 to establish that all of the following apply: “(a) That DNA
testing was done in the case or under this act[;]” “(b)
[t]hat the results of the testing were inconclusive[;]”
and “(c) [t]hat testing with current DNA technology is
likely to result in conclusive results.” MCL §
770.16(1). The statute provides that a court shall order DNA testing only if a defendant does all of the following:
(a) Presents prima facie proof that the evidence sought to be tested is material to the issue of the convicted person’s identity as the
perpetrator of, or accomplice to, the crime that
resulted in the conviction.
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(b) Establishes all of the following by clear and
convincing evidence:
(i) A sample of identified biological
material described in subsection (1) is
available for DNA testing.
(ii) The identified biological material
described in subsection (1) was not
previously subjected to DNA testing
or, if previously tested, will be subject
to DNA testing technology that was
not available when the defendant was
convicted.
(iii) The identity of the defendant as
the perpetrator of the crime was at issue during his or her trial.
MCL § 770.16(4) (2015).
Respondent argues that Kares’ petition for DNA
testing was not properly filed because Kares failed to
satisfy the conditions for petitioning the court specified in MCL § 770.16(1). Kares argues that those conditions are not conditions to filing since they do not
relate to the form of the motion, the time limit for filing it, or the proper forum, but are instead merits determinations.
The Supreme Court has analyzed the question of
what constitutes a “properly filed application” in only
a few cases. In the first case, the Supreme Court determined that a state defendant’s post-conviction motion to vacate his judgment tolled AEDPA’s one year
limitations period even though the claims raised
within that application were procedurally barred.
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Artuz v. Bennett, 531 U.S. 4, 8 (2000). Artuz noted that
an application is properly filed when “its delivery and
acceptance are in compliance with the applicable laws
and rules governing filings” and noted that the procedural bars listed in the state statute presented a “condition to obtaining relief” and did not “set forth a condition to filing.” 531 U.S. at 8, 11.
In Pace v. DiGuglielmo, the Supreme Court determined that AEDPA’s one year limitations period was
not tolled by a state court post-conviction petition that
was dismissed by the state court for being untimely.
544 U.S. 408, 417 (2005). The Supreme Court determined that although the state court was required to
review the petition to assess whether it fit into statutory exemptions for the time limit, timeliness was still
a “condition to filing” and noted that “there is an obvious distinction between time limits, which go to the
very initiation of a petition and a court’s ability to consider that petition, and the type of ‘rule of decision’
procedural bars at issue in Artuz, which go to the ability to obtain relief.” Id. The Supreme Court later reiterated its rule that a state post-conviction petition
that is dismissed as untimely does not toll the AEDPA
limitations period, regardless of whether the “time
limit is jurisdictional, an affirmative defense, or something in between.” Allen v. Siebert, 552 U.S. 3, 6
(2007).
The Sixth Circuit has also addressed the “properly
filed” requirement of § 2244. In Williams v. Birkett,
the Court determined that a successive post-conviction motion was not properly filed where it was rejected by the state court because it failed to meet the
requirements listed in the state statute for bringing
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successive motions. 670 F.3d 729, 736 (6th Cir. 2012).
In Williams, this Court noted that MCR 6.502(G)
flatly forbids defendants from filing successive postconviction motions for relief from judgment unless the
successive petition demonstrates that it falls into one
of the exceptions listed in the statute, including “motions based on (1) ‘a retroactive change in law that occurred after the first motion for relief from judgment,’
or (2) ‘a claim of new evidence that was not discovered
before the first such motion.’” 670 F.3d at 733 (citing
MCR 6.502(G)(2)). This Circuit noted that even
though “judicial scrutiny” was required to assess
whether a statutory exception applied to permit a successive petition, those exceptions remained filing conditions because a successive petition cannot be considered by the state court unless it meets one of those two
exceptions. Id. at 734.
An unsuccessful motion may still toll the limitations period, so long as the petitioner complies with all
filing requirements. In Board v. Bradshaw, this Circuit determined that a motion for leave to file a delayed appeal brought under Ohio Appellate Rule 5(A)
was properly filed and tolled AEDPA’s statute of limitations. 805 F.3d 769, 776 (6th Cir. 2015). Although
the Board petitioner’s motion for a delayed appeal was
ultimately unsuccessful, this Circuit determined that
his motion was properly filed because the Ohio rule
contained no time limit for filing such motions and because his motion complied with all filing conditions,
namely the requirements listed in the statute that the
application must “set forth the reasons for the failure
. . . to perfect an appeal.” Id. at 773 (quoting Ohio App.
R. 5(A)(2). This Court noted that “[o]nce the movant
has provided these explanations, the conditions to
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filing the Rule 5(A) motion have been satisfied.” Id. at
775.
In Thomas v. Meko, the Sixth Circuit addressed a
case similar to Artuz, regarding whether a petitioner’s
successive post-conviction motion could be considered
properly filed. 828 F.3d at 435. This Circuit determined that the petitioner’s motion for post-conviction
relief in Kentucky state court was properly filed and
tolled the AEDPA statute of limitations, even where
that petition was unsuccessful because it contained
procedurally defaulted claims. Id. at 440. This Court
examined the underlying state court order on the petitioner’s motion, noting that the Kentucky courts had
adjudicated that motion on the merits instead of rejecting it for failing to meet “state laws and rules governing filings.” Id. at 439–40 (internal quotation
marks omitted).
Turning to the facts of this case, Kares’ motion
was properly filed. MCL § 770.16 lists the conditions
for filing a petition for DNA testing in only one section
of the statute, which requires only that a “petition under this section shall be filed in the circuit court for
the county in which the defendant was sentenced.”
MCL § 770.16(2) (emphasis added). The government
does not dispute that Kares filed his petition for DNA
testing in the correct court. Additionally, the fact that
Kares’ petition was ultimately unsuccessful because
he could not meet the requirements for testing does
not mean that his petition was improperly filed. See
Pace, 544 U.S. at 417; Board, 805 F.3d at 776. Just as
this Court previously noted in Thomas, “[r]ules governing filings, in the main, speak to the court clerk;
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rules setting forth a procedural bar speak to the court
itself.” 828 F.3d at 439.
The conditions listed in sections (1) and (4) of MCL
§ 770.16 are the merits determinations that the state
court must make when deciding whether the petitioner is entitled to further DNA testing. This is evidenced by the fact that the legislature used the words
“may petition” in section (1) of MCL § 770.16 instead
of the words “may file.” Given that the legislature
used the words “shall be filed” in section (2) of MCL §
770.16, we may rely on the presumption that where a
legislature “includes particular language in one section of a statute but omits it in another section,” it acts
“intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, 556 U.S.
568, 573 (2009) (quoting Russello v. United States, 464
U.S. 16, 23 (1983)).
Furthermore, the state court considering Kares’
petition did not reject the petition for failing to meet a
filing condition, and instead addressed the merits of
his request. Unlike the statute at issue in Williams,
the Michigan DNA testing statute does not impose a
substantive condition to filing. See Williams, 670 F.3d
at 730 (analyzing MCR 6.502(G)(2) and determining
that the law “does not allow the filing of second motions for post-conviction relief” unless one of two listed
conditions is met). Although Michigan courts do conduct a sequential analysis by first assessing whether
a petition meets the requirements listed in section (1)
of MCL § 770.16 before turning to the factors articulated in section (4), they do not flatly return without
filing a petition that does not meet the requirements
in section (1). Cf. Williams 670 F.3d at 731 (noting
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that state trial court “rejected” and “returned” petitioner’s motion for failing to meet requirements for filing a second or successive motion for relief from judgment). Accordingly, we find that Kares’ motion was
properly filed.
2. Kares’ petition for DNA testing constituted a post-conviction or other collateral review proceeding
To toll AEDPA’s limitations period, the DNA petition filed by Kares must also satisfy another requirement: it must be an “application for State post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2).
Kares argues that his motion pursuant to MCL §
770.16 is an application for collateral review because
the statute contemplates that a court will review the
underlying judgment in deciding whether to order
testing and a new trial. Respondent argues that Kares’ motion does not count as an application for collateral review because MCL § 770.16 is a sequential statute, and a petitioner must first clear several statutory
hurdles before a court can even review the underlying
judgment.
The Supreme Court addressed the question of
whether a particular motion under state law was a
motion for “post-conviction or other collateral review”
in Wall v. Kholi, 562 U.S. 545 (2011). In Wall, the Supreme Court determined that a motion to reduce a
sentence brought pursuant to Rule 35 of Rhode Island’s Superior Court Rules of Criminal Procedure
was a motion for collateral review of the sentence and
therefore tolled AEDPA’s one year limitations period.
562 U.S. at 555. The Supreme Court noted that although methods of filing for collateral review may vary
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among the states, collateral review “refers to judicial
review that occurs in a proceeding outside of the direct
review process.” Id. at 560.
The Supreme Court and the Sixth Circuit have
not yet addressed the question of whether motions for
DNA testing under Michigan law are a form of collateral or post-conviction review. In an unpublished
opinion, a panel of this Court determined that postconviction discovery motions under Ohio law are not a
form of collateral or post-conviction review and do not
toll AEDPA’s limitations period. Johnson v. Randle,
28 F. App’x 341, 343 (6th Cir. 2001) (“The request for
information and the request for a copy of the record
are not challenges to the conviction or judgment.
Therefore, these requests do not toll the statute of limitations.”). Although dicta, one footnote in the Supreme Court’s decision in Wall indicates that the
Court is unlikely to find that motions for post-conviction discovery constitute a form of collateral review.
Wall, 562 U.S. at 556 n.4. In footnote four, the Wall
court noted that “[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.
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. See Woodward v. Cline, 693 F.3d 1289,
1293 (10th Cir. 2012) (determining that a motion under Kansas statute permitting biological testing is not
an application for collateral review that tolls AEDPA’s
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statute of limitations); Brown v. Sec’y for Dep’t of
Corr., 530 F.3d 1335, 1338 (11th Cir. 2008) (determining that Florida rule permitting post-conviction DNA
testing did not toll AEDPA’s limitations period because it did not provide a review mechanism); Price v.
Pierce, 617 F.3d 947, 952–53 (7th Cir. 2010) (determining that Illinois statute permitting post-conviction
forensic testing was not a collateral review mechanism and did not toll AEDPA’s limitations period);
Ramirez v. Yates, 571 F.3d 993, 999–1000 (9th Cir.
2009) (determining that post-conviction discovery motions did not toll AEDPA limitations period because
they did not challenge his conviction); Hodge v.
Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (determining
that post-conviction motion for discovery under New
York law did not challenge conviction and therefore
did not toll AEDPA’s limitations period).
Only the Fifth Circuit has determined that a motion for post-conviction DNA testing qualifies as a collateral review motion. See Hutson v. Quarterman, 508
F.3d 236, 237 (5th Cir. 2007); see also Ramos v. Lumpkin, No. 21-50775, 2023 WL 2967898, at *1 (5th Cir.
Apr. 17, 2023) (determining that district court plainly
erred by not tolling AEDPA’s limitations period during the pendency of petitioners’ motion for DNA testing under Texas law). Importantly, the statute at issue in the Fifth Circuit case, Texas Code of Criminal
Procedure Article 64, is the most analogous to MCL §
770.16. Unlike the statutes at issue in the other circuits’ decisions, 5 Texas’ statute provides a mechanism
5 Most of the statutes at issue in the cases decided by other
circuits provide only a mechanism for a defendant to request
DNA testing and do not otherwise provide for review of the judgment. Instead, a defendant must subsequently file a separate
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for review of the underlying judgment by setting forth
the procedures that a court must follow after receiving
the results of postconviction DNA testing. Tex. Code
Crim. Proc. Ann. Art. 64.04 (West) (“After examining
the results of testing . . . the convicting court shall hold
a hearing and make a finding as to whether, had the
results been available during the trial of the offense,
it is reasonably probable that the person would not
have been convicted.”). Similarly, 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.
Respondent argues that although one part of MCL
§ 770.16 does permit collateral review of the underlying judgment, the statute is sequential in nature, and
a defendant must first meet several different requirements before the court can review the judgment. It is
true that Michigan courts view the statute as sequential in nature. See e.g., People v. Poole, 874 N.W.2d
407, 414 (Mich. Ct. App. 2015) (noting that “MCL [§]
770.16 envisions two main phases; the first phase involves the court assessing whether DNA testing
should be ordered, and the second phase entails, if
DNA testing was ordered, whether a motion for new
trial should be granted” and that a court may not conflate its analysis of the two phases in its opinion). Respondent’s argument is unpersuasive, however, because the question of whether a motion for collateral
relief tolls the statute of limitations is not dependent
petition for review of the judgment based on the results of the
DNA testing.
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on the success of that motion, either in whole or in
part, in the state court. This Court has repeatedly
found that even unsuccessful motions for collateral review toll the limitations period. See Board, 805 F.3d
at 773 (noting that “although an unsuccessful motion
for leave to file a delayed appeal cannot restart the
AEDPA limitations period, it may toll the limitations
period while it is pending”) (citing Searcy v. Carter,
246 F.3d 515, 519 (6th Cir. 2001)). Petitioner’s failure
to obtain relief does not address whether the statute
itself calls for collateral review of the judgment. Moreover, Respondent cites no cases that require a defendant to file a separate action to initiate review under
subsection (8) of the statute. In fact, the plain language of MCL § 770.16 suggests that a defendant need
not file a separate petition for a new trial in order to
obtain review of his judgment. MCL § 770.16(7) states
that after DNA testing has been ordered, if the results
are inconclusive, the reviewing court “shall deny the
motion for new trial.” Likewise, MCL § 770.16(8)
states that if “the DNA testing show[s] that the defendant is not the source of the identified biological
material, the court shall . . . hold a hearing” to determine whether to grant a new trial. This suggests that
the petition for DNA testing is also considered a motion for a new trial since no other section of the statute
requires a separate petition or action to be filed for the
court to consider whether to grant a new trial.
As the Supreme Court noted in Wall, “‘collateral
review’ of a judgment or claim means a judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” 562 U.S. at 553. In
this case, the statute requires reexamination of the
underlying judgment because it requires the
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reviewing court, upon receipt of test results indicating
that the defendant is not the source of the DNA, to
hold a hearing to determine the following:
(a) That only the perpetrator of the crime or
crimes for which the defendant was convicted
could be the source of the identified biological
material.
(b) That the identified biological material was
collected, handled, and preserved by procedures that allow the court to find that the
identified biological material is not contaminated or is not so degraded that the DNA profile of the tested sample of the identified biological material cannot be determined to be
identical to the DNA profile of the sample initially collected during the investigation described in subsection (1).
(c) That the defendant’s purported exclusion
as the source of the identified biological material, balanced against the other evidence in
the case, is sufficient to justify the grant of a
new trial.
MCL § 770.16(8). Accordingly, a properly filed motion
under § 770.16 would constitute a motion for collateral or other post-conviction review.
Respondent also argues that a petition under
MCL § 770.16 is not one for collateral review because
Michigan law permits a defendant to challenge his
conviction only through a motion for relief from judgment pursuant to MCR 6.500. Respondent cites an unpublished decision from this Court for the proposition
20a
that the only post-conviction proceedings which may
toll the statute of limitations are those “recognized as
such under governing state procedures.” Williams v.
Brigano, 238 F.3d 426 at *2 (6th Cir. 2000) (unpublished table decision). This proposition may be
true, but it does not apply in this instance. In Williams, this Circuit rejected the defendant’s attempts
to toll the limitations period by filing a motion to reopen his post-conviction proceedings (even though
there was no state statute or rule permitting this type
of motion) and by filing a motion for a declaratory
judgment action (which are typically used only in civil
cases). Id. *1. Unlike the applicable law in that case,
MCL § 770.16(1) permits a court to order a new trial
if the petition is meritorious.
Furthermore, several short orders by the Michigan Supreme Court suggest that § 770.16 is an alternative means of obtaining a new trial, and thus neither: (1) impacts a defendant’s ability to obtain postconviction relief under MCR 6.500 et. seq.; nor (2) is
subject to the statutory requirements for successive
petitions. See, e.g., People v. Faulkner, 840 N.W.2d
365 (Mich. 2013) (holding that the court of appeals
erred in denying defendant’s motion for relief from
judgment brought pursuant to MCR 6.500 as a successive petition because defendant’s prior petition for
DNA testing under MCL § 770.16 “did not preclude
him from filing a motion for relief from judgment under MCR Subchapter 6.500”); People v. Alexander, 896
N.W.2d 432 (Mich. 2017) (determining that defendant’s subsequently filed post-conviction motion for relief from judgment was not a successive motion and
barred by MCR 6.502(G) because defendant
21a
previously had filed only a motion for new trial and
DNA testing pursuant to MCL § 770.16).
Accordingly, Kares’ petition for DNA testing and
a new trial pursuant to MCL § 770.16 tolls AEDPA’s
limitations period because it was properly filed and
calls for “postconviction or other collateral review”
pursuant to § 2244(d)(2).
B. Certificate of Appealability
After determining that Kares’ § 2254 petition was
untimely, the district court also addressed each of Kares’ objections and determined that the claims asserted within the habeas petition lacked merit or were
procedurally defaulted. The district court granted Kares a COA solely on the issue of whether his habeas
petition was timely filed. Kares now moves this court
to expand the COA to allow him to appeal the district
court’s decision on the merits of his habeas petition.
Kares seeks leave to appeal only one of his merits
claims, arguing that the state trial court committed
an Alleyne violation and that this claim was not procedurally defaulted because his failure to bring that
claim on direct appeal in the state court was due to his
appellate counsel’s ineffective assistance.
A state prisoner whose § 2254 petition is denied
by the district court does not have an absolute right to
appeal and must instead obtain a COA from a circuit
justice or judge. Buck v. Davis, 580 U.S. 100, 115
(2017) (citing 28 U.S.C. § 2253(c)(1)). A COA may be
issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id.
(quoting 28 U.S.C. § 2253(c)(2). This Court reviews de
novo a district court’s determination that a claim is
22a
procedurally defaulted. Hicks v. Straub, 377 F.3d 538,
551 (6th Cir. 2004). This Court also reviews de novo a
district court’s application of the “cause and prejudice”
test excusing procedural default. Hargrave-Thomas v.
Yukins, 374 F.3d 383, 387 (6th Cir. 2004).
Kares urges this Court to expand the COA to include his claim that the state trial court violated his
Sixth and Fourteenth Amendment rights by sentencing him based on facts it found by a preponderance of
the evidence, in violation of Alleyne v. United States.
Kares does not dispute that he failed to raise this
claim on direct appeal in the state courts. Instead, he
relies on this Court’s decision in Chase v. MaCauley,
971 F.3d 582 (6th Cir. 2020), and argues that the procedural default of his Alleyne claim should be forgiven
because his failure to raise the claim on direct appeal
was due to his appellate counsel’s ineffective assistance.
In Chase, this Circuit determined that the petitioner could demonstrate cause and prejudice to overcome the procedural default of his Alleyne claim because his appellate counsel was ineffective in failing
to raise that claim on direct appeal. 971 F.3d at 596.
The Chase decision, however, is not directly applicable
to Kares’ claim. This is because in Chase, the petitioner not only raised the Alleyne claim in his state
motion for post-conviction relief, but he also raised his
claim of ineffective assistance of appellate counsel for
failing to raise the Alleyne claim in that very same
post-conviction review motion. 971 F.3d at 590 (noting
that “[t]wo months after the Michigan Supreme
Court’s decision in Lockridge, Chase filed a pro se motion for relief from judgment in the state trial court
23a
pursuant to Michigan Court Rule 6.500 et seq. Chase
asserted, in relevant part, that the sentencing court’s
judicial fact-finding in his case had violated Alleyne
and his appellate counsel had been constitutionally
ineffective in failing to raise this claim on direct appeal.”).
As this Court noted in Chase, a habeas petitioner
is required to “raise an ineffective-assistance-of-counsel claim to the state court.” Id. at 592 (citing Edwards
v. Carpenter, 529 U.S. 446, 452 (2000)). Kares does not
dispute that he failed to raise an ineffective assistance
of appellate counsel claim premised on the failure to
raise the Alleyne violation in his Rule 6.500 motion. 6
Moreover, he provides no reasons why his procedural
default of that ineffective assistance of counsel claim
should be excused. See Edwards, 529 U.S. at 453–54
(noting that “an ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of
another claim can itself be procedurally defaulted” but
“that procedural default may. . . itself be excused if the
6 Kares raised an ineffective assistance of counsel claim in
his Rule 6.500 motion, but it was not based on the failure to raise
the Alleyne claim on direct appeal. Instead, Kares argued that
his appellate counsel was ineffective because appellate counsel
failed to raise the issue of trial counsel’s ineffectiveness. Kares’
failure to specifically argue that his appellate counsel was deficient in not bringing the Alleyne claim is fatal because this Court
has previously held that fair presentation requires “‘the same
claim under the same theory be presented’ for the state court’s
consideration” Caver v. Straub, 349 F.3d 340, 346–47 (6th Cir.
2003) (determining that “to the extent that an ineffective assistance of counsel claim is based upon a different allegedly ineffective action than the claim presented to the state courts, the claim
has not been fairly presented to the state courts.”).
24a
prisoner can satisfy the cause-and-prejudice standard
with respect to that claim.”).
To overcome a procedural default, a petitioner
must establish cause and prejudice. An ineffective assistance of counsel claim can establish cause and prejudice, but it too must be raised in the state court first.
Because Kares’ state post-conviction motion failed to
assert an ineffective assistance of appellate counsel
claim based on his defaulted Alleyne claim, Kares procedurally defaulted his “cause” and “prejudice” excuse, and this Court cannot review the substance of
his claim that an Alleyne violation occurred during his
sentencing proceeding. Accordingly, we DENY Kares’
motion to expand the COA and AFFIRM the district
court’s denial of his Alleyne claim as procedurally defaulted. 7
7 Kares argues that the failure to grant his motion for a COA
will render this Court’s opinion with respect to the timeliness of
his habeas petition advisory. This is not so. Article III of the Constitution empowers courts to hear cases or controversies and forbids courts from rendering advisory opinions “advising what the
law would be upon a hypothetical state of facts.” United States v.
Asakevich, 810 F.3d 418, 420 (6th Cir. 2016) (citing Chafin v.
Chafin, 568 U.S. 165, 172 (2013)). This court’s decision is not “advisory” merely because it does not grant the relief requested by
the petitioner. 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.
Had Kares offered an excuse for his default of his ineffective assistance of appellate counsel claim premised on the Alleyne violation, this Court could have excused his procedural default of
that claim. Thus, Kares’ claim is redressable and presents a live
dispute this court must resolve.
25a
III. CONCLUSION
For the reasons stated above, we REVERSE the
district court’s order denying Kares’ § 2254 petition as
untimely, DENY Kares’ motion to expand the COA,
and AFFIRM the district court’s denial of his petition
on the Alleyne claim as procedurally defaulted.
26a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
STEPHEN JOHN KARES,
Petitioner,
v.
Case No. 2:19-cv-7
Hon. Hala Y. Jarbou
CONNIE HORTON,
Respondent.
___________________________________/
ORDER
Under 28 U.S.C. § 2253(c)(2), the Court must 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, 467 (6th Cir. 2001). Rather,
the district court must “engage in a reasoned assessment of each claim” to determine whether a certificate
is warranted. Id. Each issue must be considered under
the standards set forth by the Supreme Court in Slack
v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d
at 467. Consequently, this Court has examined each
of Petitioner’s claims under the Slack standard.
Under Slack, 529 U.S. at 484, to warrant a grant
of the certificate, “[t]he petitioner must demonstrate
27a
that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or
wrong.” Id. “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In applying this standard, the
Court may not conduct a full merits review, but must
limit its examination to a threshold inquiry into the
underlying merit of Petitioner’s claims. Id.
Because the question whether a motion brought
under Mich. Comp. Laws § 770.16 tolls the AEDPA’s
statute of limitations is an issue of first impression,
the Court concludes that reasonable jurists could find
that this Court’s dismissal of Petitioner’s petition as
untimely was debatable or wrong. Therefore, the
Court will grant Petitioner a certificate of appealability on that ground.
With respect to the merits of Petitioner’s claims,
the Court finds that reasonable jurists could not conclude that this Court’s dismissal of Petitioner’s claims
would be debatable or wrong. Therefore, the Court
will deny a certificate of appealability on all other issues.
Accordingly,
IT IS ORDERED that a certificate of appealability is GRANTED with respect to Petitioner’s assertion that his habeas petition was timely.
IT IS FURTHER ORDERED that a certificate
of appealability is DENIED in all other respects.
28a
The Court declines to certify that an appeal would
not be taken in good faith.
Dated: August 3, 2021
/s/ Hala Y. Jarbou
HALA Y. JARBOU
UNITED STATES DISTRICT JUDGE
29a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
STEPHEN JOHN KARES,
Petitioner,
v.
Case No. 2:19-cv-7
Hon. Hala Y. Jarbou
CONNIE HORTON,
Respondent.
___________________________________/
OPINION
Petitioner Stephen John Kares is incarcerated
with the Michigan Department of Corrections. Kares
seeks a writ of habeas corpus overturning his conviction. (Am. Pet’n, ECF No. 10.) The matter was referred to a magistrate judge, who produced a Report
and Recommendation (R&R, ECF No. 31) that the
Court deny Kares’s habeas petition. The R&R determined that Kares’s amended petition was untimely.
Even if the petition were timely, the R&R found Kares’s claims procedurally defaulted or lacking in
merit.
With respect to timeliness, the question is
whether a motion for DNA testing and a new trial,
filed by Kares in state court, tolled the statute of limitations for Kares to file the present habeas petition.
If the DNA motion tolled the statute of limitations,
Kares’s habeas petition is timely. If the DNA motion
did not toll the statute of limitations, the Court must
deny the petition as untimely.
30a
Kares timely objected, asserting that his petition
is timely and that most of his claims are meritorious
and not procedurally defaulted. (ECF No. 36.) The
Court will adopt the R&R.
I. Procedural History
The R&R gives significant factual background,
which the Court will only briefly recite. Simply put,
Kares was charged with two counts of first-degree
criminal sexual conduct for vaginal and oral penetration. (R&R, PageID.1622.) He was tried in the
Shiawassee County Circuit Court. (Id., PageID.1618.)
In 2012, Kares was convicted of third-degree criminal
sexual conduct, Mich. Comp. Laws § 750.520d, for
vaginal penetration and acquitted on the charge of
oral penetration. (Id., PageID.1618.) He appealed.
(Id., PageID.1623-1624.) On November 21, 2013, the
Michigan Court of Appeals upheld Kares’s conviction.
(Id., PageID.1624.) Kares then sought leave to appeal
to the Michigan Supreme Court. (Id.) The Michigan
Supreme Court denied leave to appeal on May 27,
2014. (Id.) Kares moved for reconsideration, and the
Michigan Supreme Court again denied leave to appeal
on September 29, 2014. (Id.) Kares did not seek review
from the United States Supreme Court. (Id.)
Simultaneous with his direct appeals, Kares
moved for a new trial in the Shiawassee County Circuit Court on May 8, 2013. (Id., PageID.1625.) The
trial court denied that motion as untimely on June 18,
2013. (Id.) Kares appealed. The Michigan Court of Appeals dismissed the appeal as untimely because the
trial court’s order was not a final order subject to appeal as of right. (Id.) Where there is no appeal as of
right, a person may still seek leave to file an appeal
31a
with the Michigan Court of Appeals. Kares requested
leave to appeal the trial court’s denial of his motion
for a new trial. (Id.) On March 21, 2013, the Michigan
Court of Appeals denied leave to appeal, finding Kares’s application lacked merit. (Id.) The Michigan Supreme Court likewise denied leave to appeal on September 5, 2014. (Id.)
On October 1, 2015, Kares petitioned the Western
District of Michigan for a writ of habeas corpus. Kares
v. Trierweiler, No. 1:15-cv-992 (W.D. Mich.). Then, on
October 20, 2015, Kares moved the Shiawassee
County Circuit Court for relief from judgment under
Michigan Court Rule 6.500. (R&R, PageID.1625.) The
Shiawassee County Circuit Court denied the 6.500
motion on November 2, 2015, while this Court dismissed the habeas petition without prejudice for failure to exhaust available state-court remedies on January 28, 2016. (Id., PageID.1625-1626.)
Kares sought leave to appeal the denial of his
6.500 motion. (Id.) The Michigan Court of Appeals denied leave on September 27, 2016. (Id., PageID.16261627.) Kares applied for leave to appeal to the Michigan Supreme Court. (Id., PageID.1627.) The Michigan
Supreme Court denied relief on December 27, 2017.
(Id.)
Then came the motion that the R&R says failed to
toll the time to file a habeas petition. On February 9,
2018, Kares brought a motion in the Shiawassee
County Circuit Court under Mich. Comp. Laws §
770.16. (Id.) The motion requested DNA testing of certain evidence collected during the investigation leading to Kares’s conviction. If that request were granted
and the resulting DNA tests exculpated Kares, the
32a
motion asked for a new trial. The court denied the motion for DNA testing on February 12, 2018. (Id.) Kares
sought leave to appeal, which the Michigan Court of
Appeals denied on August 29, 2018. (Id.) The Michigan Supreme Court likewise denied leave to appeal on
April 2, 2019. (Id.)
Kares filed the present habeas petition on December 21, 2018. (Id.)
II. Standard
Under 28 U.S.C. § 636(b)(1) and Rule 72 of the
Federal Rules of Civil Procedure, the Court must conduct de novo review of those portions of the R&R to
which objections have been made. Specifically, the
Rules provide that:
The district judge must determine de novo any
part of the magistrate judge’s disposition that
has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge
with instructions.
Fed. R. Civ. P. 72(b)(3).
III. Analysis
A. Timeliness
1. Statutory tolling
The question is whether the motion for DNA testing/new trial was “properly filed” and thus tolled the
statute of limitations for Kares to file the present
33a
habeas petition. The R&R concluded that that the motion did not toll the statute of limitations. (R&R,
PageID.1637.) Kares objects that it did. (Pet’r’s Objs.,
PageID.1726-1727.) Because this issue is dispositive,
the Court will begin by describing the meaning of
“properly filed.”
Per the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas petitions brought
by state prisoners are subject to a one-year statute of
limitations. 28 U.S.C. § 2244(d)(1). That limitations
period is tolled when “a properly filed application for
State post-conviction or other collateral review with
respect to the pertinent judgment . . . is pending[.]” 28
U.S.C. § 2244(d)(2).
“The Supreme Court has defined ‘properly filed’ as
‘when [an application’s] delivery and acceptance are
in compliance with the applicable laws and rules governing filings.’” Williams v. Birkett, 670 F.3d 729, 733
(6th Cir. 2012) (quoting Artuz v. Bennett, 531 U.S. 4,
8 (2000)). In other words, a motion is properly filed if
it satisfies “condition[s] to filing,” even if it fails to satisfy conditions for “obtaining relief.” Artuz, 531 U.S.
at 11.
A good, but imperfect, rule of thumb is to ask
whether a court would even consider a filing. If, for
example, a court is flatly prohibited from considering
a motion because it is untimely, then that motion is
not properly filed. Pace v. DiGuglielmo, 544 U.S. 408,
417 (2005). Sometimes a rule may require “judicial
scrutiny” to determine whether a filing is in fact
properly filed. Id. at 414-15. Such rules are still conditions to filing: judicial inquiry into whether
34a
something is properly filed does not render that filing
proper. Id.; Williams, 670 F.3d at 734.
The task now is to determine when Kares’s limitations period began to run and, considering motions
that tolled his time, whether and when the limitations
period expired. For Kares, the statute of limitations
began to run on “the date on which the judgment
[against him] became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). Kares’s request for
leave to file a direct appeal was finally denied by the
Michigan Supreme Court on September 29, 2014. He
had 90 days from September 29 to appeal to the
United States Supreme Court, which he never did.
That 90-day period ended on December 28, 2014.
(R&R, PageID.1630.) So Kares had until December
28, 2015, to file a habeas petition with this Court. At
first glance, then, Kares’s habeas petition is untimely
because he did not file until December 21, 2018.
But there was some tolling. On October 20, 2015,
with 69 days left to file a habeas petition, Kares filed
his 6.500 motion for relief from judgment in the
Shiawassee
County
Circuit
Court.
(R&R,
PageID.1631.) That motion, which satisfied the filing
requirements, qualified as a “properly filed application for State post-conviction . . . review” under section
2244(d)(2) and thus tolled the AEDPA’s limitations
period for the duration of the motion’s review and appeal process. Lawrence v. Florida, 549 U.S. 327, 332
(2007).
The trial court denied Kares’s motion, and the
Michigan Court of Appeals refused leave to appeal.
The Michigan Supreme Court denied leave to appeal
35a
on December 27, 2017. (R&R, PageID.1631.) That
same day, the statute of limitations began to run
again. It expired 69 days later, on March 6, 2018. (Id.)
Unless the February 9, 2018 motion for DNA testing
tolled the limitations period, Kares’s December 21,
2018 habeas motion is untimely.
The R&R correctly concluded that the motion for
DNA testing did not toll the statute of limitations for
Kares because the companion motion for a new trial
was not properly filed. (Id., PageID.1637.) This is an
issue of first impression. Examining the relevant
Michigan statutes and court rules, the Court concludes that, for a movant who could only obtain a new
trial through a successive motion for relief from judgment under Mich. Ct. R. 6.502(G), a motion for a new
trial brought under Mich. Comp. Laws § 770.16 is
“properly filed” only if the motion for DNA testing is
granted and exculpates the movant. If the motion for
DNA testing is denied, or if the testing does not exculpate the defendant, then the motion for a new trial
under section 770.16 is not “properly filed” and thus
does not toll the statute of limitations.
Analysis begins with the statute permitting requests for DNA testing. Mich. Comp. Laws § 770.16(1)
arguably allows two distinct but simultaneous requests by movants: “[A] defendant convicted of a felony at trial on or after January 8, 2001 . . . may petition the circuit court [1] to order DNA testing of biological material identified during the investigation
leading to his or her conviction, and [2] for a new trial
based on the results of that testing.” The first request
is a discovery motion, which does not toll the AEDPA’s
limitations period. Rideaux v. Perry, No. 2:15-cv-
36a
10774, 2016 WL 1182729, at *2 (E.D. Mich. Mar. 28,
2016) (citing Hodge v. Greiner, 269 F.3d 104, 107 (2d
Cir. 2001)). A motion for a new trial, on the other
hand, would toll the statute of limitations so long as
that motion was “properly filed.” 28 U.S.C. §
2244(d)(2).
For Kares, whether his motion for a new trial was
properly filed depended on the success of his request
for DNA testing. Mich. Comp. Laws § 770.16 confers a
basis for a new trial motion, but all motions for new
trials are governed by Mich. Ct. R. 6.431. Accord Mich.
Ct. R. 1.104 (“Rules of practice set forth in any statute,
if not in conflict with any of these rules, are effective
until superseded by rules adopted by the [Michigan]
Supreme Court.”); People v. Strong, 539 N.W.2d 736,
738 (Mich. Ct. App. 1995) (“In resolving a conflict between a statute and a court rule, the court rule prevails if it governs practice and procedure.”). Where a
defendant “is no longer entitled to appeal by right or
by leave,” Rule 6.431(A)(4) instructs movants to “seek
relief pursuant to the procedure set forth in subchapter 6.500.”
Kares is out of appeals, so his motion for a new
trial under section 770.16 must be treated as a motion
for relief from judgment under Mich. Ct. R. 6.502. See
People v. Poole, 874 N.W.2d 407, 412 (Mich. Ct. App.
2015) (suggesting in dicta that section 770.16 would
be subject to the successive motion ban in Rule
6.502(G)). But Kares has previously made a Rule
6.502 motion. He is therefore hemmed in by the filing
condition of Rule 6.502(G)(1), which generally prohibits the filing of successive motions under Rule 6.502.
Williams, 670 F.3d at 733-34 (Mich. Ct. R. 6.502(G) is
37a
a filing condition). Absent an exception permitting
some successive motions, discussed below, a successive Rule 6.502 motion is not considered properly filed
and thus does not toll the statute of limitations for habeas petitions. Id. at 730 (“Because Michigan law does
not allow the filing of second motions for post-conviction relief . . . [the petitioner’s] second motion was not
‘properly filed[.]’”) (citing Pace, 544 U.S. 408).
Successive motions are permitted when they are
based on “claim[s] of new evidence that was not discovered before the first [6.502] motion.” Mich. Ct. R.
6.502(G)(2). 1 “‘[N]ew evidence’ includes . . . shifts in
science[.]” Mich. Ct. R. 6.502(G)(3). Under Mich.
Comp. Laws § 770.16(4), courts are to order DNA testing of evidence that “was not previously subjected to
DNA testing or, if previously tested, will be subject to
DNA testing technology that was not available when
the defendant was convicted.” Thus, a successful motion for DNA testing yields the kind of “new evidence”
that permits a successive Rule 6.502 motion.
Pulling everything together: a defendant, out of
appeals and having previously filed a Rule 6.502 motion, may still seek a new trial under Mich. Comp.
Laws § 770.16. However, that motion for a new trial
must be treated as a successive motion under Rule
6.502(G). Whether that motion for a new trial is
“properly filed” turns on the success of the companion
motion for DNA testing. If the motion for DNA testing
is denied, or if testing is performed but does not point
1 Successive motions are also allowed following “a retroactive
change in law that occurred after the first [6.502] motion,” Mich.
Ct. R. 6.502(G)(2), but this is not an asserted basis of Kares’s motion for a new trial and thus is irrelevant.
38a
to another culprit, then there is no “new evidence” and
hence no basis for a successive Rule 6.502 motion. In
such circumstances, a motion for a new trial brought
through section 770.16 will not toll the AEDPA’s limitations period. Because his request for DNA testing
was denied, Kares’s section 770.16 motion did not toll
the statute of limitations and his present habeas petition is untimely.
Kares objects that if his motion “was not properly
filed then the trial court would have returned the motion citing it as defective and refus[ed] to adjudicate.”
(Pet’r’s Objs., PageID.1727.) But the trial court only
considered the request for DNA evidence. Indeed, the
court could not have examined the motion for a new
trial until it decided the DNA issue. “[I]t would be improper to deny DNA testing on the basis that a court
concludes that it would deny a future motion for new
trial regardless of the results of any DNA testing. A
court is not statutorily permitted to conflate the two
phases of analysis.” Poole, 874 N.W.2d at 414.
And a motion is not “properly filed” simply because it is given some judicial consideration. “[T]he
Supreme Court . . . explicitly rejected the argument
that rules that ‘necessitate judicial scrutiny’ . . . may
not still be considered condition[s] to filing.’” Williams, 670 F.3d at 734 (quoting Pace, 544 U.S. at 41415). The Sixth Circuit has held that Rule 6.502(G)(2),
which requires courts to decide whether a filing falls
within the exception permitting successive motions, is
nevertheless a condition to filing. Id. Williams controls here: Kares’s motion for a new trial is subject to
Rule 6.502(G), and whether that motion is properly
filed is a question that cannot be determined until the
39a
request for DNA testing has been resolved. The act of
determining whether a motion is properly filed does
not render that motion properly filed. Pace, 544 U.S.
at 471. Addressing the request for DNA testing is
simply a component of that determination.
2. Equitable tolling
The AEDPA’s one-year limitations period is also
subject to equitable tolling. See Holland v. Florida,
560 U.S. 631, 645 (2010). A petitioner bears the burden of showing that he is entitled to equitable tolling.
Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The
Sixth Circuit has repeatedly cautioned that equitable
relief should be granted “sparingly.” See, e.g., Ata v.
Scutt, 662 F.3d 736, 741 (6th Cir. 2011); Solomon v.
United States, 467 F.3d 928, 933 (6th Cir. 2003);
Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005);
Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). A
petitioner seeking equitable tolling must show: “‘(1)
that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his
way’ and prevented timely filing.” Holland, 560 U.S.
at 649 (citing Pace, 544 U.S. at 418).
Kares has not argued for equitable tolling, nor has
he alleged any facts or circumstances that would warrant its application in this case. His status as a pro se
petitioner does not warrant tolling; tolling is even unwarranted where the petitioner is unaware of the statute of limitations. See Keeling v. Warden, Lebanon
Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012) (“Keeling’s pro se status and lack of knowledge of the law are
not sufficient to constitute an extraordinary circumstance and excuse his late filing.”).
40a
There were no extraordinary circumstances preventing timely filing. In fact, Kares knew about the
evidence he now says should be tested. (R&R,
PageID.1639.) Prior to trial, Kares hired his own expert to test the very same evidence he says should be
tested now. (Id.) Kares’s expert did test the evidence
in question. As the R&R puts it, Kares is “aware of
those results, but [the results] are not part of the state
record, which suggests the results did not exculpate
[Kares] in any way.” (Id.) These circumstances do not
justify equitable tolling.
3. Actual innocence
In McQuiggin v. Perkins, 569 U.S. 383 (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 miscarriage-of-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 327 (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.
41a
Though Kares baldly asserts that he is actually
innocent, he proffers no new evidence of his innocence,
much less evidence that makes it more likely than not
that no reasonable juror would have convicted him.
Schlup, 513 U.S. at 327, 329. Indeed, Kares’s claim of
innocence is not based on a claim that he had a consensual sexual encounter with the victim; he instead
maintains that there was no sexual contact at all. (See
R&R, PageID.1622.) Considering that his semen was
found in the victim’s vagina, a reasonable juror could
easily have convicted Kares. Because he has wholly
failed to provide evidence of his actual innocence, he
would not be excused from the statute of limitations
under the AEDPA.
In sum, Kares’s habeas petition is untimely.
B. Merits
The R&R also performed seventy pages of analysis
on the merits of the petition’s eleven asserted grounds
for relief. The R&R determined that the habeas petition should be rejected on the merits even if it was
filed within the limitations period. Kares objected to
those conclusions. The objections will be addressed on
an issue-by-issue basis, in the order they are analyzed
by the R&R.
1. Ground XI—Denial of motion for
DNA testing
Kares claims his Fourteenth Amendment right to
Equal Protection was violated when the Shiawassee
County Circuit Court denied his motion for DNA testing. (R&R, PageID.1646.) The R&R found this claim
non-cognizable on habeas review. (Id., PageID.1650.)
42a
In his objection, Kares essentially argues that his motion for DNA testing was meritorious and thus the
trial court’s denial violated the imperative that “the
states . . . apply its laws equally to similarly situated
individuals.” (Pet’r’s Objs., PageID.1728.) This objection is meritless.
As the R&R notes, habeas petitions cannot be
used to “‘challenge errors or deficiencies in state postconviction proceedings . . . because the claims address
collateral matters and not the underlying state conviction giving rise to the prisoner’s incarceration.’”
(R&R, PageID.1648 (quoting Kirby v. Dutton, 794
F.2d 245, 247 (6th Cir. 1986)).) “[T]he petition must
directly dispute the facts or duration of confinement.”
Kirby, 794 F.2d at 248. Kares’s challenge to the trial
court’s adjudication of a post-conviction discovery motion does no such thing.
Kares also takes issue with the R&R’s statement
that “clearly established federal law [i]s determined
by the Supreme Court.” 2 (Pet’r’s Objs., PageID.1728.)
It is not clear how this relates to Issue XI because the
R&R’s disposition of Issue XI did not turn on whether
some point of law was clearly established. Either way,
the R&R correctly stated the law. This objection is denied.
2 Kares repeats this argument many times in his objections. Be-
cause the R&R correctly stated the law, the Court will not reconsider this argument each time it is reasserted.
43a
2. Ground IV—Denial of Mich. Ct. R.
6.502 motion
Kares further challenges the denial of his first motion for relief from judgment under Mich. Ct. R. 6.502.
(R&R, PageID.1650.) The R&R determined that Kares’s claim was not cognizable on habeas review. (Id.)
Kares objects that, because his motion “was never adjudicated on the merits” in state court, his claim is
subject to de novo review. (Pet’r’s Objs., PageID.1728.)
Because the claim is subject to de novo review, he
says, the “claim is cognizable on habeas review.” (Id.)
Kares misses the mark. Reviewability is a separate
question from standard of review. A claim is not cognizable simply because it would be subject to a particular standard of review if the claim were reviewable.
This objection is denied.
3. Ground I—Admission of hearsay
over defense objection
At trial, a nurse who examined the victim after
the sexual assault testified as to certain statements
the victim made during the examination. (R&R,
PageID.1651.) Counsel for Kares objected to that testimony as inadmissible hearsay; the trial court overruled. Kares claims admission of that testimony violated his right to a fair trial and the Due Process
Clause.
The R&R determined that admission of the testimony did not violate the Constitution. (Id.,
PageID.1655.) Kares objects that the nurse gave testimonial hearsay and thus admission of her statements violated the Confrontation Clause. (Pet’r’s
Objs., PageID.1729.) It is true that the Confrontation
44a
Clause generally prohibits testimonial hearsay.
Crawford v. Washington, 541 U.S. 36, 53-56 (2004).
However, testimonial hearsay is admissible where the
declarant appears at trial and is subject to cross-examination. Id. at 59. Here, the victim—the declarant—testified at trial and was subject to “unrestricted
cross-examination”
by
the
defense.
(R&R,
PageID.1655.) Assuming the nurse’s statements qualified as testimonial hearsay, no Confrontation Clause
violation occurred. Kares’s objection is denied.
4. Ground II—Improper judicial conduct to enhance sentence
At sentencing, Kares claims that the trial court
“relied upon inaccurate information when scoring
[his] prior record and offense variables” and engaged
in impermissible fact-finding to impose a lengthier
sentence. (Id., PageID.1656-1657.) He also claims that
the trial court incorrectly applied the relevant statutory scoring guidelines. (Id., PageID.1657.)
The R&R concluded that the incorrect scoring issue was “purely a state law claim,” and thus “not cognizable on habeas review.” (Id.) Kares objects to this
finding, stating that his petition “clearly sets forth the
information applied by the state court violates either
or both . . . the 6th and 14th Amendments to the
United
States
Constitution.”
(Pet’r’s
Objs.,
PageID.1730 (emphasis added).) But the R&R’s statement clearly related to the erroneous scoring issue,
not the improper information issue. Kares’s objection
on this point is therefore irrelevant and denied.
45a
Examining the impermissible judicial fact-finding, the R&R concluded that the trial court’s actions
at sentencing were contrary to Alleyne v. United
States, 570 U.S. 99 (2013) and People v. Lockridge, 870
N.W.2d 502 (Mich. 2015) (Lockridge II). According to
the R&R, “[t]here is little question the trial court impermissibly relied on judge-found facts to score some
of the variables when determining [Kares’s] minimum
sentencing guidelines range.” (R&R, PageID.1660.)
However, because Kares never raised such an argument to the trial court when he could have and needed
to, the R&R determined that this issue was procedurally defaulted. (Id., PageID.1660-1663.)
Kares objects that he did make such an argument
in his first Rule 6.502 motion, and that he cited People
v. Lockridge, 849 N.W.2d 388 (Mich. Ct. App. 2014)
(Lockridge I) to support his position. But the only passage from his 6.502 motion that could possibly be construed as a judicial fact-finding argument is too
vague: “[a] trial court may not make an independent
finding regarding a defendant’s guilt[] of another offense to justify an offense variable scoring.” (ECF No.
21-10, PageID.1020.) This statement came in the context of Kares’s claim that he received improper enhancements based on acquitted conduct. (See id.) That
argument does not relate to Alleyne and Lockridge II,
which held that the U.S. Constitution invalidated
Michigan’s sentencing guidelines to the extent they
required “judicial fact-finding beyond facts admitted
by the defendant or found by the jury to score offense
variables [] that mandatorily increase the floor of the
guidelines minimum sentence range.” Lockridge II,
870 N.W.2d at 506 (emphasis in original). Kares’s citation to Lockridge I, partially reversed by Lockridge
46a
II, does not clarify the ambiguity in his 6.502 brief.
And worse, Lockridge I only discussed state law, not
federal law. Under the circumstances, it cannot be
said that Kares “fairly presented” to the trial court
any argument based on Alleyne and Lockridge II.
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). Kares did not present a federal or constitutional judicial
fact-finding argument when he needed to, and this
ground for habeas relief is therefore procedurally defaulted.
The R&R further found that Kares’s arguments
about improperly scored offense variables were procedurally defaulted. (R&R, PageID.1667-1670.) Kares
again objects that he properly raised the claims relating to the offense variables in state court. (Pet’r’s
Objs., PageID.1729.) The Court agrees with the R&R
that Kares’s arguments were too vague and shifted between stages of review, meaning he did not fairly present his claims to the trial court and at each stage of
appeal. (R&R, PageID.1667-1670.) The result is procedural default. Kares’s objection is denied here.
The R&R did find one offense variable argument
(OV 11 Argument) was properly raised and exhausted. (R&R, PageID.1670.) However, the state
cout denied Kares’s claims for relief based on the OV
11 Argument, and the R&R concluded that the state
court’s denial was not contrary to or based on an unreasonable application of federal law. (R&R,
PageID.1671.) The R&R thus recommended denying
habeas relief on the OV 11 Argument. Kares fails to
object to this conclusion. Kares likewise fails to object
to the R&R’s finding that his sentence was not based
on inaccurate information. (Id., PageID.1671-1672.)
47a
5. Gound III—Improper lesser offense instruction by trial court
Kares argues that the trial court erroneously instructed the jury on third-degree criminal sexual conduct, suggesting that “the court so instructed the jury
because the court believed that [third-degree criminal
sexual conduct] was a lesser-included offense of [firstdegree criminal sexual conduct].” (Id., PageID.1672.)
But, as the R&R notes, Kares, through counsel, was
the one who requested the instruction on third-degree
criminal sexual conduct. (Id., PageID.1675 (citing
Trial Tr. II, ECF No. 21-6, PageID.852, 859-861).) Kares objects that the R&R mistakenly “assum[es]” that
he agreed to the challenged instruction when there is
“not any evidence within the trial record to support
such an assumption.” (Pet’r’s Objs., PageID.1732.)
The evidence is that his own attorney requested the
addition of the third-degree criminal sexual misconduct instruction.
Even if the instruction should not have been
given, the R&R correctly states that Kares committed
“invited error” and thus cannot obtain habeas relief.
(R&R, PageID.1676 (citing Fields v. Bagley, 275 F.3d
478, 485-86 (6th Cir. 2001)).) Kares objects that if his
own counsel “in fact invited the jury instruction,” then
this was ineffective assistance of counsel. (Pet’r’s
Objs., PageID.1732.) This argument will be addressed
in section III.B.10 below.
6. Ground V—Misrepresentation of
DNA evidence
At trial, a nurse who examined the victim after
the sexual assault testified that she collected samples
48a
from the victim’s anus and vagina. (R&R,
PageID.1678.) The nurse did not indicate that she collected these samples in a report she drafted right after
the examination. (Id., PageID.1679.) Another witness,
who tested the samples collected by the nurse, corroborated the nurse’s testimony. (Id.) During closing arguments, the prosecutor “urged the jurors to infer that
the report was in error,” and argued that the samples,
which tested positive for Kares’s DNA, along with
other evidence, demonstrated Kares’s guilt. (Id.)
In his amended petition, Kares argues that the
prosecution misrepresented the DNA evidence to
show a critical element of the offense—sexual penetration. (Id., PageID.1678.) Kares contends that this
misrepresentation was prosecutorial misconduct
amounting to a Due Process violation. However, this
argument is based on the inconsistencies between the
nurse’s testimony and her examination report. The
R&R concluded that the inconsistencies simply created a question of fact, one that was resolved against
Kares, and that he “failed to demonstrate that the
prosecutor’s arguments with regard to the DNA evidence rise to the level of prosecutorial misconduct that
denied him due process.” (Id., PageID.1680-1681 (citing Coleman v. Jackson, 566 U.S. 650, 655-56 (2012)
(Due Process only violated where prosecutor urges inferences that are irrational)).)
Objecting, Kares mostly challenges the R&R’s
analysis on whether an anal swab was collected.
(Pet’r’s Objs., PageID.1733.) But, as the R&R points
out, this is not enough. “[E]ven if one accepted [Kares’s] invited inference with regard to the anal
swabs—that the inconsistency gives rise to reasonable
49a
doubt—that would not render unreasonable the allegedly invited inference that [Kares’s] DNA on the cervical swabs evidence[d] penetration, an inference that
is particularly reasonable because the victim testified”
about vaginal penetration. (R&R, PageID.1680.) The
cervical swabs were more relevant anyway, because
Kares was convicted of vaginal, not anal, penetration.
With respect to the vaginal samples, Kares simply objects that “there was no record” of them being collected. (Pet’r’s Objs., PageID.1733.) As explained in
the R&R, the lack of such a record is not dispositive,
it was simply inconsistent with the nurse’s testimony
about collecting vaginal samples. That testimony was
corroborated by other witnesses and evidence. Therefore, the jury could reasonably infer that vaginal samples were actually collected, despite the lack of a contemporaneous record indicating such. Kares’s objections are denied.
7. Ground VI—Prosecution
pressed exculpatory evidence
sup-
“[S]uppression by the prosecution of evidence favorable to an accused . . . violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v. Maryland, 373 U.S. 83, 87
(1963). Kares claims that two pieces of evidence were
suppressed by the prosecution in violation of Brady:
his bedding and the victim’s toxicology report. (R&R,
PageID.1681.)
The R&R found these claims entirely meritless.
Kares “concedes” the R&R’s conclusions, but only “as
to the legal standing of . . . [the] claim.” (Pet’r’s Objs.,
PageID.1734.) The Court is not sure what Kares
50a
means by “the legal standing of the claim.” Nevertheless, it is irrelevant because Kares concurs that there
was no Brady violation.
8. Ground VII—Failure to produce
endorsed res gestae witnesses at
trial
Kares argues that the prosecution was required to
call two res gestae witnesses. (R&R, PageID.1684.)
The R&R concluded that Kares was not entitled to relief because the requirement to call all res gestae witnesses comes from Michigan law—there is no federal
analog. (Id., PageID.1687-1688.) If the prosecution
failed to do so, no constitutional violation occurred.
“Michigan’s requirement that prosecutors produce res
gestae witnesses is a matter of state law, and its enforcement is outside the scope of [federal] review.”
Collier v. Lafler, 419 F. App’x 555, 559 (6th Cir. 2011).
Kares first objects that his claim “is centered upon
the due process right to a fair trial.” (Pet’r’s Objs.,
PageID.1734.) That misses the point: the U.S. Constitution does not require prosecutors to call all res gestae witnesses and thus a prosecutor’s failure to do so
cannot amount to a fair trial violation. He also objects
that “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete
defense.’” (Id. (quoting California v. Trombetta, 467
U.S. 479, 485 (1984)).) To that end, Kares says he was
prejudiced when the prosecution did not call those two
witnesses because he “was [left] without the ability”
to call the witnesses himself. (Id., PageID.1735.) He
did not make this argument in his amended petition
so the Court will not consider it. Kares’s objections are
denied.
51a
9. Ground VIII—Inadequate notice
of State’s intent to seek sentence enhancement
Kares claims that he did not receive fair notice of
potential sentencing enhancements that would trigger based on his prior convictions if he was found
guilty of third-degree criminal sexual conduct. (R&R,
PageID.1690.) He says he was only informed of the potential consequences of a first-degree criminal sexual
conduct conviction because the third-degree was
added as a lesser-included offense at trial. (Id.) Kares
argues this amounted to a Fourteenth Amendment violation.
The R&R spots the logical fallacy. Kares was indicted on charges of first-degree criminal sexual conduct. The indictment stated that “the prosecutor will
seek a sentence enhancement because [Kares] had
previously [been] convicted of three or more felonies.”
(Id.) Thus, it is of no consequence that Kares was ultimately convicted of third-degree criminal sexual
conduct rather than first-degree criminal sexual conduct.
Kares knew from the outset that the prosecution
would seek an enhancement and thus had ample opportunity to “prepare a defense against the enhancement.” (Id., PageID.1692.) Notice is adequate under
the Due Process Clause so long as the indictment
“fairly . . . informs the accused of the offense for which
he is to be tried,” Mira v. Marshall, 806 F.2d 636, 639
(6th Cir. 1986) such that “the accused may adequately
prepare a defense[.]” (R&R, PageID.1691 (citing
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984)).)
52a
Kares objects that he “was not provided notice as
it relates to . . . sentence enhancement[s] regarding
the lesser offense until the day of the sentencing.”
(Pet’r’s Objs., PageID.1735.) But it is not clear why
that matters. Kares knew the prosecution would seek
an enhancement based on prior convictions when he
was charged with first-degree criminal sexual conduct. Was he not prepared to argue against enhancements if he were convicted of first-degree criminal sexual conduct? What changes if he is convicted of thirddegree criminal sexual conduct? The ultimate conviction does not matter here: Kares was accused of sexual
assault and the prosecution said it would seek enhancements if he were convicted. He had fair notice.
The objection is denied.
In his next objection, Kares points to Mich. Comp.
Laws § 769.13(3), which “requires the prosecution to
file notice of intent to seek an enhanced sentence
within 21 days after the defendant has been convicted
of the underlying offense or a lesser offense.” (Pet’r’s
Objs., PageID.1736.) He says the prosecution failed to
do so. Whether the prosecution complied with a particular state law is irrelevant: habeas petitions cure
federal violations only. Kares had fair notice under
the Fourteenth Amendment. This objection is denied.
Finally, Kares objects that this Court has found
there was “no notice to seek an enhanced sentence”
with respect to the third-degree criminal sexual conduct conviction. (Id. (citing 4/23/2021 Order, ECF No.
32).) The referenced Order simply states that “there is
no ‘notice of sentence enhancement’ such as [Kares]
requests,” i.e., the specific document he requested
does not exist. (4/23/2021 Order, PageID.1711.) The
53a
Order goes on to conclude, as the Court again concludes today, that the indictment itself—which included a statement of intent to seek enhancements—
provided sufficient notice. (Id., PageID.1711-1712.)
This objection is likewise denied.
10. Ground IX—Ineffective assistance of trial counsel
A successful ineffective assistance of counsel
claim requires showing: (1) that counsel’s performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient performance prejudiced the defendant, resulting in an unreliable or
fundamentally unfair outcome. Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts must make “a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Id. at 689. The defendant bears the burden of rebutting this presumption. Id. (citing Michel v. Louisiana,
350 U.S. 91, 101 (1955)). “The court must determine
whether, in light of the circumstances as they existed
at the time of counsel’s actions, ‘the identified acts or
omissions were outside the wide range of professionally competent assistance.’” (R&R, PageID.1693
(quoting Strickland, 466 U.S. at 690).) Deficient performance is irrelevant unless it affected the outcome
of the case. Strickland, 466 U.S. at 691.
The standard is “doubly” deferential in the habeas
context because the court is reviewing a state court’s
application of Strickland. Harrington v. Richter, 562
U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)). On habeas review, the question
is “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.”
54a
Id. Such deference is not owed where the state court
declined to address the defendant’s claims on the merits.
The trial court did not address Kares’s ineffective
assistance of counsel claims on the merits. (R&R,
PageID.1695-1696.) The R&R believed Kares’s claims
were procedurally defaulted, but nevertheless concluded that addressing the merits would offer the
“more direct path to resolution.” (Id., PageID1695.)
Consequently, the R&R reviewed Kares’s infective assistance of trial counsel claims de novo. Kares concurs
with that decision. (Pet’r’s Objs., PageID.1736.)
In his amended petition, Kares claims that his
trial counsel “failed to adequately investigate and present pictures of [Kares’s] identifying marks and tattoos [and] . . . failed to investigate [] DNA evidence.”
(R&R, PageID.1698.)
Kares has tattoos, including a large one depicting
a dreamcatcher on his left thigh. (R&R, PageID.1699.)
Defense counsel asked the victim if she remembered
seeing any tattoos on Kares’s thigh; she said she did
not think so. (Id. (citing Shiawassee Cnty. Cir. Ct. Order, ECF No. 21-11, PageID.1068-1069).) “In his closing, trial counsel argued that the victim’s inability to
identify distinguishing features on [Kares’s] naked
body supported a finding of reasonable doubt.” (Id. (internal quotation marks omitted).) But Kares’s lawyer
forgot to solicit any testimony affirming that Kares
did, in fact, have tattoos. The R&R found that this error fell outside the range of professionally competent
assistance. (Id., PageID.1700.)
55a
However, the R&R concluded that there was no
prejudice. (Id., PageID.1700-1701.) Kares’s defense
was not that he had a consensual sexual encounter
with the victim; instead, he claimed that there was no
sexual encounter at all. (See id.) The presence of his
semen in the victim’s vagina severely undercut his defense. And DNA evidence was clearly “of singular importance” to the jury. (Id., PageID.1701.) Kares was
accused of both oral and vaginal penetration, and his
DNA was only found in the victim’s vagina, not her
mouth. (Id.) Kares was convicted of vaginal penetration but acquitted of oral penetration. (Id.) For this
reason, the R&R determined that trial counsel’s failure to properly elicit testimony about Kares’s tattoos
did not render the result “unfair or unreasonable[.]”
(Id.)
Kares essentially argues that effective assistance
on the tattoo issue would have affected the outcome
because it would have undermined the victim’s credibility. (Pet’r’s Objs., PageID.1738.) But, as the R&R
notes, DNA evidence appeared to be the decisive factor. The victim provided strong testimony regarding
both oral and vaginal penetration, and ostensibly faltered in failing to remember Kares’s thigh tattoo. Kares was convicted on vaginal penetration, for which
there was DNA evidence, and acquitted on oral penetration, for which there was not. Kares has not convinced the Court that extra damage to the victim’s
credibility, whatever it would have been, could have
overcome the DNA evidence inculpating him. This objection is denied.
Onto the DNA evidence claim. Kares maintains
that the victim deposited his semen in her vagina “by
56a
transferring it from a used female condom” that Kares
says “was thrown in his bathroom trash a few days
before the alleged criminal sexual conduct.” (R&R,
PageID.1701.) He argues that his lawyer “did nothing
to investigate” this claim. (Id., PageID.1702.) The
R&R found otherwise, concluding that “[c]ounsel was
plainly aware of [Kares’s] theory” and asked two forensic witnesses at trial whether they tested samples
for foreign substances. (Id.) He “specifically explored”
this theory with one of the witnesses, who “testified
that if semen were transferred from a vaginal condom,” there would be “DNA carryover from that third
person,” but said that there “was no such carryover in
the samples tested[.]” (Id.)
The R&R found “nothing in the record that forecloses the possibility that counsel in fact investigated
the presence of foreign substances through the expert
hired to conduct independent testing.” (Id.) If trial
counsel did not test the female condom, the R&R concluded that the decision was a sound exercise in strategy: “It may be that such testing was not conducted
because the prospect of no test results—and no actual
tests by the prosecutor’s experts to rule out the possibility—put [Kares] in a better position to argue reasonable doubt.” (Id.) The R&R discovered no ineffective assistance: “The flaw was in [Kares’s] theory, not
his counsel’s performance,” concluding that “counsel
did the best that he could with an unconvincing theory.” (Id., PageID.1703.)
Kares objects and argues that his attorney should
have investigated his DNA-transfer theory more fulsomely. (Pet’r’s Objs., PageID.1738.) But this fails to
account for the R&R’s reasoning that it may have been
57a
a smart and strategic decision to not test the female
condom because counsel knew the prosecution would
not test it. To buttress his argument, Kares says his
attorney’s failure to investigate was significant because “unidentified male DNA was present in the
samples collected.” (Id., PageID.1739.) In making this
claim, Kares cites to Lori Bruski’s laboratory report.
As far as the Court can tell, that report is not in the
record. But there is a record of Bruski’s testimony at
trial, where she unequivocally states that she found
no third source of DNA. (ECF No. 21-6, PageID.765
(Q: “[S]o the jury is clear, did you find a third source
of DNA in any of your testing?” A: “No, I did not.”).)
Kares has not shown that it was unreasonable for his
counsel to not test the female condom, assuming no
testing was performed, and has also failed to show
that this decision affected the outcome of the trial. His
objections are denied.
The R&R also concluded that trial counsel did not
provide ineffective assistance when he requested an
instruction on third-degree criminal sexual conduct.
(R&R, PageID.1703.) Noting the “compelling” DNA
evidence against Kares, the R&R saw two potential
strategies regarding instructions: (1) “all or nothing”
or (2) “third option.” (Id.) An attorney pursuing the
first strategy would not have requested an instruction
on third-degree criminal sexual conduct, while an attorney going the “third option” route would.
The “all or nothing” strategy is a gamble that the
jury will decide the prosecution failed to prove a particular element of the offense and thus acquit the defendant. But it is risky, especially where the defendant clearly did something wrong. “Where one of the
58a
elements of the offense charged remains in doubt, but
the defendant is plainly guilty of some offense, the
jury is likely to resolve its doubts in favor of conviction.” Keeble v. United States, 412 U.S. 205, 212-13
(1973). For this very reason, the defense may find it
desirable to present a “third option,” a less severe offense with a less severe penalty for conviction. Id.
Here, Kares’s attorney went with the “third option” strategy. Kares claimed he did not have sex with
the victim, but his semen was found in her vagina and
his “transference through a female condom” theory
was far-fetched. To prove first-degree criminal sexual
conduct, the prosecution had to show that Kares
forced or coerced the victim into committing sexual
acts, and that the victim suffered physical injury during the course of those acts. Third-degree criminal
sexual conduct requires the same proof, except the
prosecution does not have to show that the victim suffered physical injury during the assault. Whether Kares caused physical harm sufficient to satisfy first-degree criminal sexual conduct may have been in doubt
but, as observed in Keeble, this put him at extreme
risk of a harsher conviction if no third option were offered.
In his objections, Kares indicates that he did not
consent to the instructions and that his attorney committed ineffective assistance in requesting instructions for third-degree criminal sexual conduct. (Pet’r’s
Objs., PageID.1740.) Under the circumstances, his attorney made a reasonable judgment call. There was no
ineffective assistance of counsel and Kares’s objection
is denied.
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Finally, the R&R notes a plethora of other ineffective assistance claims raised and later abandoned by
Kares. (R&R, PageID.1697-1698.) The R&R therefore
refused to consider those arguments. (Id.) Kares does
not object.
11. Ground X—Ineffective assistance
of appellate counsel
As with the previous claims, the R&R reviewed
Kares’s ineffective assistance of appellate counsel
claims de novo. (Id., PageID.1696.) Kares supports the
R&R’s use of this standard of review. (Pet’r’s Objs.,
PageID.1736.) Strickland applies equally to appellate
counsel as it does to trial counsel: Kares must show
that his appellate attorney was incompetent and that
competent representation would have yielded a different outcome.
The R&R analyzes ten claims of ineffective assistance of counsel and recommends denying all of them.
Kares objects to two recommendations.
In his amended petition, Kares says his appellate
counsel was ineffective for failing to raise the Alleyne
judge-found facts issue on direct appeal. It is true that
his counsel did not do so. (R&R, PageID.1705.) But
Kares himself did not raise an ineffective assistance
claim on this ground until he sought leave to appeal
denial of his motion for relief from judgment. (Id.)
Thus, the issue is unexhausted. Finding no means for
Kares to seek a remedy in state court, and seeing no
cause for Kares’s failure to exhaust, the R&R concluded that this claim is procedurally defaulted. (Id.)
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Kares objects and states that the R&R “contradict[s]” itself because it previously concluded “that the
trial court impermissibly relied on judge-found facts”
in sentencing. (Pet’r’s Objs., PageID.1740.) There is no
contradiction. The R&R found that Kares had a viable
claim—the trial judge likely impermissibly relied on
judge-found facts—but that the claim was procedurally defaulted. (R&R, PageID.1660-1663.) The R&R
then found that any claim of ineffective appellate assistance predicated on the judge-found facts claim was
likewise procedurally defaulted. (Id., PageID.1705.)
Kares argues that procedural default should be
forgiven where it is the result of ineffective assistance
of counsel. (Pet’r’s Objs., PageID.1741 (citing Coleman
v. Thompson, 501 U.S. 722, 254 (1991)).) But this argument can only relate to the underlying Alleyne
claim that his appellate counsel failed to raise. Kares
had no ineffective assistance of appellate counsel
claim until his attorney provided allegedly ineffective
assistance. He offers no explanation why procedural
default of the latter claim should be excused given ineffective assistance with respect to the Alleyne claim.
This objection is therefore denied.
Kares also advances an ineffective assistance of
appellate counsel claim based on his appellate attorney’s failure to raise an ineffective assistance claim
with respect to the trial attorney. (R&R,
PageID.1708.) The R&R recommends denying this
claim because “[t]rial counsel did not render ineffective assistance.” (Id.) Kares objects and asserts that
trial counsel’s assistance was ineffective. (Pet’r’s
Objs., PageID.1741.) This objection is denied because,
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as explained in Section III.B.10, the trial attorney did
not provide effective assistance of counsel.
Finally, there are claims that the R&R did not
consider. In the brief supporting his amended petition, Kares states that he “has presented numerous
issues herein that his Appellate Counsel failed to include[] within his direct appeal.” (Pet’r’s Br., ECF No.
10-1, PageID.205.) Following Kares’s lead, the R&R
“limit[ed] its analysis to claims [fitting] that description: claims that appellate counsel did not raise on appeal and that [Kares] raised in his amended petition.”
(R&R, PageID.1704.) Kares objects and maintains
that the R&R should have reviewed the additional
claims, but does not explain why. (Pet’r’s Objs.,
PageID.1740.) The objection is therefore denied.
IV. Conclusion
For the foregoing reasons, the Court denies all of
Kares’s objections and will adopt the R&R. Kares’s
amended petition is untimely. Even if it were filed
within the statute of limitations, Kares’s claims are
meritless or otherwise procedurally defaulted. An order, judgment, and certificate of appealability will enter consistent with this Opinion.
Dated: August 3, 2021
/s/ Hala Y. Jarbou
HALA Y. JARBOU
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
STEPHEN JOHN KARES,
v.
Petitioner,
CONNIE HORTON,
Case No. 2:19-cv-7
Honorable Hala Y. Jarbou
Respondent.
____________________________/
REPORT AND RECOMMENDATION
This is a habeas corpus action brought by a state
prisoner under 28 U.S.C. § 2254. Petitioner Stephen
John Kares is incarcerated with the Michigan Department of Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan.
On August 30, 2012, following a three-day bench trial
in the Shiawassee County Circuit Court, Petitioner
was convicted of third-degree criminal sexual conduct
(CSC-III), in violation of Mich. Comp. Laws §
750.520d. On September 29, 2012, the court sentenced
Petitioner as a fourth habitual offender, Mich. Comp.
Laws § 769.12, to a prison term of 25 years to 58 years,
4 months, to be served consecutively to a sentence for
assault for which Petitioner was on parole when he
committed the CSC-III offense.
Petitioner filed his habeas corpus petition in this
Court on or around December 21, 2018. Under Sixth
Circuit precedent, the application is deemed filed
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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 application on December 21, 2018. (Pet., ECF No. 1, PageID.9.) The petition was received by the Court on January 9, 2019.
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.1 (6th Cir. 2006)).
The petition raises eleven grounds for relief, as
follows:
I.
Petitioner was denied his due process right to
a fair trial by the admission of hearsay evidence over a defense objection.
II.
Trial court applied inaccurate information and
engaged in judicial fact finding to increase Petitioner’s sentence.
III.
Petitioner was denied his due process rights by
the trial court giving an improper lesser offense instruction.
IV.
Petitioner was denied his constitutional right
to due process and equal protection by the
State of Michigan ruling “good cause” and “actual prejudice” were not demonstrated.
V.
Petitioner was denied a fair trial by the prosecutor misrepresenting DNA evidence to the
jury.
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VI.
Petitioner was denied his due process rights by
the prosecutor suppressing exculpatory evidence in its possession.
VII.
Petitioner was denied his due process right to
a fair trial by the prosecution failing to produce
endorsed res gestae witnesses at trial.
VIII.
Petitioner was denied his due process right to
adequate notice to seek a sentence enhancement.
IX.
Trial counsel was ineffective for failing to conduct an adequate investigation and present a
complete defense.
X.
Appellate counsel was ineffective by failing to
raise meritorious issues on direct appeal resulting in prejudice to Petitioner’s appeal.
XI.
Petitioner was deprived of his right to equal
protection when he was denied testing of forensic evidence.
(Am. Pet., ECF No. 10, PageID.135–150.) 1 Respondent
has filed an answer to the petition (ECF No. 20) stating that the grounds should be denied because the petition is untimely, most of the grounds are procedurally defaulted, several of the grounds are not cognizable on habeas review, and all of the grounds are meritless. Upon review and applying the standards of the
1 Petitioner filed his amended petition on May 17, 2019. The
amended petition added habeas ground XI, for which Petitioner
had not exhausted his state court remedies at the time he filed
his initial petition, as explained fully below.
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Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I conclude that the petition is untimely. Nonetheless, because that conclusion depends upon resolution of an
issue of first impression in this district and circuit—
whether or not a motion seeking DNA testing under
Mich. Comp. Laws § 770.16 is a petition for collateral
review that tolls the running of the period of limitation—and because that is a question upon which reasonable minds could certainly differ, I have also considered the merits of the grounds raised. I further conclude that Petitioner’s habeas grounds are either procedurally defaulted or meritless or both. Accordingly,
I recommend that the petition be denied.
Discussion
I. Factual allegations
The Michigan Court of Appeals summarized the
testimony elicited at trial as follows:
Defendant knew the 16 year old victim because he dated her mother, and the victim had
been over to his apartment on a number of occasions. On the day of the assault, defendant
texted the victim and offered to pay her money
if she would clean his horse saddle. Later that
day, defendant texted the victim that he
would be home soon, he bought her a pack of
cigarettes (as he had done in the past), and he
purchased a gift for her from Goodwill.
The victim asked a friend to drive her to defendant’s apartment. When she arrived, defendant showed her the saddle, but said that
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she did not need to clean it right away. The
victim and defendant were talking and smoking a cigarette in the living room when he offered to help her get emancipated, which is
something they had talked about before. Defendant also gave her the gift from Goodwill,
which was a pair of earrings.
The victim cleaned the saddle, and defendant
eventually went into his bedroom. Defendant
then asked the victim if a pair of pants in the
bedroom were hers, which prompted the victim to walk toward the bedroom. Defendant
then told the victim that they needed to talk,
and closed the bedroom door. He then caressed her face, and the victim told him no.
Because the victim began to whimper and
shake, defendant said “stop, don’t make me
hurt you.” Defendant then kissed the victim
and said “what do you think I’m doing this for?
What do you think I’m doing all this for you
for?” The victim knew that he was referring to
the emancipation offer and the purchase of
cigarettes.
Defendant told the victim to walk over by the
bed and take her clothes off, which she did. He
then grabbed a camera, took his pants off, and
told the victim to lie down on the bed. When
she complied, he opened her legs, spread open
her vaginal area to take a picture, and told her
that if she told anyone he would distribute the
photographs everywhere. He then ordered her
to sit up, and forced her to perform oral sex on
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him. He next ordered her to lie down on the
bed, and he inserted his penis into her vagina.
Defendant eventually stood up and put his
pants back on. The victim got dressed but did
not run because she was afraid he would catch
her. Defendant said that he thought she would
be more into it, and asked if she had sex before. They eventually proceeded back into the
living room, and the food defendant ordered
earlier arrived. While the victim went back to
cleaning the saddle, she felt threatened because defendant told her that he did not want
the police showing up at his door. The victim’s
friend arrived to pick her up, and the victim
told defendant not to worry that she would not
tell.
However, after driving away, the victim told
her friend, and eventually her mother, that
defendant raped her. She had a rape kit examination performed, and a sexual-assault nurse
testified that the victim relayed to her what
happened. Thus, the nurse conducted a full
body assessment of the victim, including a detailed genital assessment. She obtained a
urine sample to check for infection or prior
pregnancy, and provided the victim with medications to prevent pregnancy and infection.
The nurse testified that near the victim’s anus
she observed a half-millimeter tear that could
be consistent with forced or consensual sexual
contact. She also collected various samples,
including a sample of a white substance at the
victim’s cervix and a vaginal swab. An
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employee at the Michigan State Police Forensic Science Division testified that the anal and
cervical swabs were tested and resulted in a
match to defendant’s DNA.1
Defendant testified at trial, and while he admitted that the victim came over to his apartment to clean the saddle, he claimed that no
sexual contact occurred, and he did not know
why the victim accused him of such. He testified that he had sexual intercourse with a different woman three or four days before, and
had disposed of a vaginal condom in the trash.
Defendant questioned the prosecution’s witnesses regarding the nurse’s report, which did not
show a check mark that anal swabs or vaginal
smears were collected.
1
(Mich. Ct. App. Op., ECF No. 21-12, PageID.1073–
1074.) Petitioner does not challenge the court of appeals’ recounting of the trial testimony. Indeed, Petitioner’s statements of the facts in his state court briefs
are more detailed, but generally consistent with the
account provided by the appellate court. The undersigned will provide additional detail regarding the
trial testimony where it is relevant to an analysis of
the issues Petitioner has raised.
The prosecutor charged Petitioner with two
counts of first-degree criminal sexual conduct (CSC-I),
one count for Petitioner’s penetration of the victim’s
vagina with his penis and one count for Petitioner’s
penetration of the victim’s mouth with his penis. The
CSC-I statute identifies several circumstances where
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sexual penetration rises to the level of a first-degree
offense. The prosecutor relied on the following circumstance:
A person is guilty of criminal sexual conduct
in the first degree if he or she engages in sexual penetration with another person and . . .
[t]he actor causes personal injury to the victim
and force or coercion is used to accomplish sexual penetration.
Mich. Comp. Laws § 750.520b. 2
Petitioner’s counsel requested that the jury also
be instructed with regard to the elements of CSC-III.
(Trial Tr. II, ECF No. 21-6, PageID.859–860.) There is
a difference of only one element between the CSC-I
circumstance argued by the prosecutor and one of the
CSC-III circumstances. Compare Mich. Comp. Laws
§ 750.520b(1)(f)
and
Mich.
Comp.
Laws
§ 750.520d(1)(b). If sexual penetration is accomplished by force or coercion, but the actor does not
cause personal injury, the actor would be guilty of
CSC-III rather than CSC-I. The trial court instructed
the jury regarding CSC-I, (Trial Tr. III, ECF No. 217, PageID.907–910), and CSC-III, (Id., PageID.910),
describing the latter offense as a “less serious,” not
“lesser included” offense.
The jurors apparently struggled with discerning
the difference between CSC-I and CSC-III, because
they sent the judge a note asking him to explain the
difference. (Id., PageID.919.) With the agreement of
2 The statute then proceeds to define force or coercion. Mich.
Comp. Laws § 750.520b(1)(f).
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counsel, the judge brought the jury back in to the
courtroom and reviewed the CSC-I and CSC-III instructions, highlighting that the difference between
them was that CSC-III did not require proof of a resulting personal injury. (Id., PageID.919–923.) A couple of hours later, the jurors returned their verdict:
they found Petitioner guilty of CSC-III with regard to
the penile/vaginal penetration and not guilty with regard to the penile/oral penetration or any of the CSCI charges.
On September 28, 2012, the court sentenced Petitioner as described above. (Sentencing Tr., ECF No.
21-8.) Petitioner included the sentencing information
report and the applicable sentencing grid as exhibits
to his brief on direct appeal to the Michigan Court of
Appeals. (Sentencing Information Rep., ECF No. 2112, PageID.1122; Sentencing Grid, ECF No. 21-12,
PageID.1123.) Petitioner reached the maximum point
levels on the Offense Variables and the Prior Record
Variables, yielding a minimum sentence range of 117
to 320 months. (Id.)
Petitioner, with the assistance of counsel, directly
appealed his conviction and sentence, raising two issues: a claim that the trial court improperly admitted
hearsay evidence regarding out-of-court statements of
the victim through the testimony of the sexual assault
nurse examiner (SANE); and a claim that the trial
court had improperly scored certain offense variables.
The first issue is now before this Court as habeas
ground I. The second direct appeal issue is a small
part of habeas ground II. By opinion issued November
21, 2013, the court of appeals rejected Petitioner’s
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challenges and affirmed the trial court. (Mich. Ct.
App. Op., ECF No. 21-12, PageID.1073–1078.)
Petitioner then filed a pro per application for leave
to appeal to the Michigan Supreme Court, raising the
same issues he raised in the Michigan Court of Appeals. (Pet’r’s Appl. for Leave to Appeal, ECF No. 2117, PageID.1329–1353.) The Michigan Supreme Court
denied leave to appeal, initially on May 27, 2014,
(Mich. Order, ECF No. 21-17, PageID.1320) and then
upon reconsideration on September 29, 2014, (Mich.
Order, ECF No. 21-17, PageID.1321). Petitioner did
not file a petition for certiorari in the United States
Supreme Court. (Am. Pet., ECF No. 10, PageID.132.)
At the same time Petitioner was pursuing his direct appeal with the assistance of counsel, he requested a new trial in the trial court by way of a pro
per motion filed May 8, 2013. The motion raised one
issue, Petitioner argued that instructing the jury on
the elements of CSC-III was erroneous because CSCIII is not a lesser included offense of CSC-I. On June
18, 2013, the trial court denied the motion as untimely. (Shiawassee Cnty. Cir. Ct. Order, ECF No. 2113, PageID.1199.) Petitioner filed a claim of appeal
from that order. (Mich. Ct. App. Claim of Appeal, ECF
No. 21-13, PageID.1198.) The Michigan Court of Appeals dismissed the appeal because the trial court’s
order was not a final order subject to appeal as of
right. (Mich. Ct. App. Order, ECF No. 21-13,
PageID.1196.)
Petitioner then filed an application for leave to appeal the trial court’s denial of his motion for new trial.
In addition to arguing the merits, Petitioner argued
that his motion was timely as measured from the trial
72a
court’s entry of an amended judgment of sentence. 3 On
March 21, 2014, the court of appeals denied leave because the application lacked merit. (Mich. Ct. App. Order, ECF No. 21-14, PageID.1211.) It is not clear
whether the lack of merit was attributable to the timeliness issue, the lesser-included offense issue, or both.
Petitioner then filed an application for leave to appeal to the Michigan Supreme Court. That court denied leave by order entered September 5, 2014. (Mich.
Order, ECF No. 21-18, PageID.1418.) Thus, the
“lesser included offense” appeal was concluded before
Petitioner’s direct appeal.
Petitioner returned to the trial court, filing a motion for relief from judgment on October 20, 2015.
(Mot. for Relief from J., ECF No. 21-10.) In his motion
for relief from judgment, Petitioner raised the claims
he now presents as habeas grounds IV–X in his
amended petition. The motion also raised an issue regarding the scoring of offense and prior record variables for sentencing; however, as set forth in detail below, it is not the same issue Petitioner raises as a
3 The trial court entered an amended judgment of sentence on
November 8, 2012. The initial judgment of sentence indicated
that the CSC-III sentence was consecutive, but it did not indicate
which of Petitioner’s sentences it was consecutive to. (Shiawassee Cnty. Cir. Ct. J., ECF No. 21-12, PageID.1088.) The sentencing transcript indicates the CSC-III sentence would be consecutive to the sentence for which Petitioner was on parole at the time
he committed the CSC-III offense. (Sentencing Tr., ECF No. 218, PageID.970-971.) The amended judgment of sentence added
that information. (Shiawassee Cnty. Cir. Ct. Am. J., ECF No. 2114, PageID.1232.)
73a
federal constitutional issue in the amended petition as
habeas ground II.
By opinion and order entered November 2, 2015,
the trial court concluded that Petitioner had failed to
demonstrate the ineffective assistance of appellate
counsel; therefore, Petitioner had failed to show good
cause for not raising his motion issues on direct appeal. (Shiawassee Cnty. Cir. Ct. Op. & Order, ECF No.
21-11, PageID.1071.) The trial court also acknowledged that it could waive the good cause requirement
where Petitioner showed he was actually innocent of
the crime; but the court concluded that Petitioner had
not made that showing. (Id.)
Even before the circuit court denied relief, Petitioner filed his first habeas petition in this Court. Kares v. Trierweiler, No. 1:15-cv-992 (W.D. Mich.) (Kares
I). The Court dismissed the petition on January 28,
2016, because Petitioner had not yet exhausted his
state court remedies—he had not appealed the trial
court’s denial of his motion for relief from judgment to
the Michigan Court of Appeals and the Michigan Supreme Court. Kares I (Op., Order, & J., ECF Nos. 11,
12, 13.)
Petitioner then applied for leave to appeal the
trial court’s denial of his motion for relief from judgment to the Michigan Court of Appeals. He raised the
issues he raised in the trial court, and he changed his
argument with regard to the offense and prior record
variable scoring claims: he added a claim regarding
judicial-fact-finding based on the line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466
(2000), and including Ring v. Arizona, 53 U.S. 584
(2002), Blakely v. Washington, 542 U.S. 296 (2004),
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United States v. Booker, 543 U.S. 220 (2005), and Alleyne v. United States, 570 U.S. 99 (2013). 4 (Pet’r’s
Appl. for Leave to Appeal, ECF No. 21-15,
PageID.1272–1275.) That issue, as altered, is the issue he raises in this Court as habeas ground II. Nonetheless, on September 27, 2016, the court of appeals
denied relief “because [Petitioner] failed to establish
that the trial court erred in denying his motion for relief from judgment.” (Mich. Ct. App. Order, ECF No.
21-15, PageID.1236.)
Petitioner then filed an application for leave to appeal to the Michigan Supreme Court raising the same
issues he raised in the court of appeals. The supreme
court denied relief by order entered December 27,
2017. (Mich. Order, ECF No. 21-19, PageID.1474.)
On February 9, 2018, Petitioner returned to the
trial court again. This time he filed a motion under
Mich. Comp. Laws § 770.16 asking the court to order
testing of biological material. (Shiawassee Cnty. Cir.
Ct. Docket Sheet, ECF No. 21-1, PageID.371; Pet’r’s
Mot. for Testing of Biological Material, ECF No. 2116, PageID.1316–1318.) Specifically, Petitioner asked
the court to order testing of the following: (1) items of
evidence collected by the sexual assault nurse examiner that the contends had not been tested; and (2)
multiple items of bedding from Petitioner’s residence
that had not been tested. (Pet’r’s Mot., ECF No. 21-16,
PageID.1317.) By order entered February 12, 2018,
4 In fact, Petitioner had already changed the issue to include his
“judicial fact-finding” claim when he filed his petition and
amended petition in Kares I. Kares I (Pet., ECF No. 1,
PageID.27–29; Am. Pet., ECF No. 10, PageID.80.) He just never
presented the issue that way to the trial court.
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the trial court denied relief because Petitioner’s motion did not address any of the three things Petitioner
had to show under the statute to file the motion.
(Shiawassee Cnty. Cir. Ct. Op. & Order, ECF No. 2116, PageID.1313–1315.) Petitioner did not allege,
much less show, that DNA testing was done—although it clearly was. Petitioner did not allege, much
less show, that the results of the testing were inconclusive—they clearly were not. And Petitioner did not
allege, much less show, that testing with current DNA
technology was likely to yield conclusive results.
Therefore, the court concluded, Petitioner failed to
show that he qualified to even file such a motion under
the statute. Petitioner’s claim failed at the “first
phase” of the two-phase proceeding contemplated by
the statute. 5
Petitioner filed an application for leave to appeal
the trial court’s order to the Michigan Court of Appeals. That court denied leave by order entered August 29, 2018. (Mich. Ct. App. Order, ECF No. 21-16,
PageID.1300.) Petitioner then filed an application for
leave to appeal to the Michigan Supreme Court. The
supreme court denied leave by order entered April 2,
2019. (Mich. Order, ECF No. 21-20, PageID.1533.)
Before the supreme court entered its order denying leave, Petitioner filed his petition in this Court.
(Pet., ECF No. 1.) Petitioner raised the first ten of the
5 Even though the court did not entertain Petitioner’s motion, the
court went on to note that even if Petitioner had addressed, and
could satisfy, the requirements to file his motion, Petitioner had
also failed to satisfy the showing necessary to compel testing.
(Shiawassee Cnty. Cir. Ct. Op. & Order, ECF No. 21-16,
PageID.1315.)
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eleven issues that appear in his amended petition. After the Michigan Supreme Court denied relief on April
2, 2019, Petitioner sought leave to amend the petition
to add his DNA testing issue. (Pet’r’s Mot. to Amend,
ECF No. 8.) The Court allowed Petitioner to amend
his petition. (Order, ECF No. 9.) Petitioner filed his
amended petition on May 28, 2019.
Based on the timeline through the Michigan Supreme Court’s denial of leave to appeal on the motion
for relief from judgment—or approximately that timeline 6—upon conducting a preliminary review of the
petition, the undersigned recommended dismissal of
the petition as untimely. (R. & R., ECF No. 11.) Petitioner filed objections to that recommendation and, by
way of those objections, informed the Court of the specifics regarding Petitioner’s motion for testing of biological material. (Pet’r’s Objs., ECF No. 12.) Petitioner
argued that the DNA testing motion tolled the period
of limitation, thereby rendering his petition timely.
By order entered July 30, 2019, Chief Judge
Jonker rejected the report and recommendation, in
significant part because whether the DNA testing motion provided by Michigan statute tolled the habeas
period of limitation was an issue of first impression.
The Court noted that there was a circuit split regarding whether similar statutes in other states tolled the
6 At the time of the preliminary review, the Court relied on Peti-
tioner’s recounting of the dates that the Michigan Supreme
Court denied leave to appeal and the subsequent motion for reconsideration and the date that he had filed his motion for relief
from judgment. The state court record has clarified those dates.
They are slightly different than Petitioner’s initial representations.
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period of limitation. Therefore, the Court concluded, it
could not be said that “‘it plainly appear[ed] from the
face of the petition . . . that the petitioner [was] not
entitled to relief[.]’” (Order, ECF No. 14, PageID.254)
(quoting Rule 4, Rules Governing § 2254 Cases). The
Court determined that the parties should have an opportunity to litigate the statute of limitations issue on
a more fully developed record. The Court ordered Respondent to file an answer to the amended petition
and Petitioner to file a reply. The record is now fully
developed.
II. The petition is untimely
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
(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
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removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the
right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
In most cases, § 2244(d)(1)(A) provides the operative date from which the one-year limitations period
is measured. Under that provision, the one-year limitations period runs from “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A). Petitioner appealed the
judgment of conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan
Supreme Court denied his application initially on May
27, 2014, (Mich. Order, ECF No. 21-17, PageID.1320)
and then denied it upon reconsideration on September
29, 2014, (Mich. Order, ECF No. 21-17, PageID.1321).
Petitioner did not petition for certiorari to the United
States Supreme Court. (Am. Pet., ECF No. 10,
PageID.132.) 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
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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 December 28, 2014.
Petitioner had one year, until December 28, 2015, 7
to file his habeas application. Petitioner filed his application on December 21, 2018. Obviously, he filed
more than one year after the period of limitations began to run. Thus, absent tolling, his application is
time-barred.
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”). Petitioner filed a motion for relief from judgment in state
court on October 20, 2015, (Pet’r’s Mot. for Relief from
J., ECF No. 21-10), when there were 69 days remaining in the limitations period. That motion tolled the
limitations period for as long as it remained “pending”
before the trial court and on appeal. See Lawrence,
549 U.S. at 332 (holding that § 2244(d)(2) tolls the
statute of limitations from the filing of an application
for state post-conviction or other collateral relief until
a decision is issued by the state supreme court). The
trial court denied the motion and Petitioner appealed
7 The Court’s analysis differs from that offered by Respondent by
one day. By Respondent’s reckoning, Petitioner could have timely
filed his petition on December 29, 2015. By the Court’s reckoning,
that would be the 366th day and, thus, one day too late.
80a
that decision to both levels of the Michigan appellate
courts. The Michigan Supreme Court finally denied
leave to appeal on December 27, 2017. Consequently,
the statute of limitations began to run again after that
date and expired 69 days later, on Monday, March 6,
2018. Thus, even with the benefit of tolling under §
2244(d)(2) based on Petitioner’s filing of the motion for
relief from judgment and subsequent appeals, Petitioner’s application is more than nine months late.
If, on the other hand, Petitioner’s motion for testing of biological material is a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or
claim[,]” then it was filed with 25 days remaining in
the period of limitation and remained pending until
after the petition was filed in this case.
Petitioner’s motion to test biological material was
filed pursuant to Mich. Comp. Laws § 770.16 which
provides:
[A] defendant convicted of a felony at trial on
or after January 8, 2001 who establishes that
all of the following apply may petition the circuit court to order DNA testing of biological
material identified during the investigation
leading to his or her conviction, and for a new
trial based on the results of that testing:
(a) That DNA testing was done in the
case or under this act.
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(b) That the results of the testing were
inconclusive.
(c) That testing with current DNA
technology is likely to result in conclusive results.
Mich. Comp. Laws § 770.16(1). If Petitioner satisfies
the requirements to file the motion, he is entitled to
the testing if he:
(a) Presents prima facie proof that the evidence sought to be tested is material to the issue of the convicted person’s identity as the
perpetrator of, or accomplice to, the crime that
resulted in the conviction.
(b) Establishes all of the following by clear and
convincing evidence:
(i) A sample of identified biological
material described in subsection (1) is
available for DNA testing.
(ii) The identified biological material
described in subsection (1) was not
previously subjected to DNA testing
or, if previously tested, will be subject
to DNA testing technology that was
not available when the defendant was
convicted.
(iii) The identity of the defendant as
the perpetrator of the crime was at issue during his or her trial.
Mich. Comp. Laws § 770.16(4).
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If the court grants the petition to conduct testing,
it must deny the motion for new trial if the results are
inconclusive or show that the defendant is the source
of the biological material. Mich. Comp. Laws §
770.16(7). If, on the other hand, the DNA testing
shows that the defendant is not the source of the biological material, the court must appoint counsel and
hold a hearing to determine if, by clear and convincing
evidence, that only the perpetrator of the crime could
be the source of the biological material, that the biological material was properly handled, and that the
exclusion of the defendant as the source, balanced
against the other evidence in the case, is sufficient to
justify the grant of a new trial. Mich. Comp. Laws §
770.16 (8).
The federal circuits have not uniformly decided
that motions that seek post-conviction DNA testing
toll the running of the habeas period of limitation.
Some courts have concluded that a motion for DNA
testing is in the nature of a discovery motion and,
therefore, not a motion for review of the judgment.
Brown v. Secretary for Dep’t of Corr., 530 F.3d 1335,
1337 (11th Cir. 2008) (court held that motion under
rule that provided procedures for obtaining DNA testing involved “an application for discovery only”; to attack the conviction based on the results requires “institut[ion of] a proceeding under Florida’s collateral
attack rules . . . .”); Woodward v. Cline, 693 F.3d 1289,
1293 (10th Cir. 2012) (regarding the Kansas statute,
the court stated: “In essence the motion was a request
for discovery. Because it did not call for reexamination
of the judgment . . . .”) (footnote omitted); Price v.
Pierce, 617 F.3d 947, 952–53 (7th Cir. 2010) (regarding the Illinois statute, the court stated: “[W]hen a
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defendant moves under [the statute] for forensic testing, the best that can happen is that the trial court
grants the motion, the tests are performed, and the
defendant receives the results. The defendant may
choose to use the results of the DNA test in a separate
post-conviction petition for relief claiming his or her
actual innocence, but no hearing automatically follows.”) (emphasis in original); see also Alverto v. Obenland, No. 3:19-cv-5212, 2020 WL 5077425, at *5 (W.D.
Wash. May 7, 2020) (“The purpose of [the DNA testing
statute] is ‘to provide a means for a convicted person
to obtain DNA evidence . . . that would support a petition for postconviction relief.’ . . . As a motion for postconviction DNA testing provides a means to seek postconviction relief, it does not toll the limitations period.”), R. & R. adopted, 2020 WL 5064215 (Aug. 27,
2020); Kennedy v. Ryan, No. CV-17-04300, 2018 WL
7570288, at *3 (D. Ariz. Sept. 18, 2018), R. & R.
adopted, 2019 WL 1099801 (Mar. 8, 2019) certificate
of appealability den., 2019 WL 8269083 (9th Cir. Oct.
25, 2019) (“DNA testing [motions] pursuant to Ariz.
Rev. Stat. § 13-4240 . . . do not have any statutory tolling effect because [they] ‘differ[] from a petition for
postconviction relief under Rule 32 and its statutory
counterparts.’”); Brown v. Hunt, No. 1:16cv160, 2017
WL 628463, at *2–3 (W.D.N.C. Feb. 15, 2017) certificate of appealability den., 694 F. App’x 201 (4th Cir.
2017) (“Petitioner filed a motion for post-conviction
DNA testing . . . [it] did not seek review of, or to vacate, his convictions and/or sentences. Instead [it]
sought information that had the potential to help Petitioner develop challenges to his convictions and/or
sentences.”); Rowe v. Giroux, No. 3:13-cv-02444, 2015
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WL 5997127 (M.D. Penn. Oct. 14, 2015) 8; Montgomery
v. Turner, No. 1:15-cv-00330, 2016 WL 11371451, at
*13 (N.D. Ohio, Oct. 26, 2016) R. & R. adopted, 2016
WL 7437915 (Dec. 27, 2016) certificate of appealability
den., No. 17-3082 (6th Cir. Jul. 18, 2017) (“[S]ince his
application for DNA testing amounted to a request for
discovery, not an actual petition for post-conviction relief or for collateral review of his judgment, the undersigned finds the reasoning of the Seventh, Tenth, and
Eleventh Circuits persuasive and concludes that
Montgomery’s application for DNA did not serve to
toll the AEDPA statute of limitations.”); Werner v.
Wall, No. Civ.A. 06-31T, 2006 WL 2559484, at *3
(D.R.I. Aug. 31, 2006) (“Because the DNA Motion cannot be construed as a motion for post-conviction or collateral review, it also does not toll the statute of limitations for purposes of filing a § 2254 Motion in this
federal court.”); Burton v. Runnels, No. CIV S-020675, 2006 WL 1062097, at *5 n.12 (E.D. Cal. Apr. 21,
2016), R. & R. adopted, 2006 WL 2839254 (Sept. 29,
8 In Rowe, the magistrate judge issued a report and recommen-
dation holding that DNA testing motions did not toll the habeas
period of limitation. In resolving the petitioner’s objections, the
district court judge agreed with that proposition, but ultimately
concluded that the motion at issue was not only a DNA testing
motion, but also a separate motion under the Pennsylvania Post
Conviction Relief Act (PCRA). The court concluded that a PCRA
motion would toll the habeas period of limitation. When the case
came back to the magistrate judge, she then considered whether
the PCRA motion was “properly filed.” She concluded that the
PCRA motion was untimely and, therefore, not properly filed
such that it could not toll the habeas period of limitation anyway.
Rowe v. Giroux, No. 3:13-cv-02444, 2016 WL 3513401 (M.D. Pa.
Jun. 1, 2016). The district court adopted that report and recommendation in its entirety. Rowe v. Giroux, No. 3:13-cv-02444,
2016 WL 3511544 (M.D. Pa. Jun. 27, 2016) certificate of appealability den., No. 17-1650 (3d Cir. Jan. 11, 2018).
85a
2006), aff’d, No. 06-17072, 2009 WL 580695 (9th Cir.
Mar. 5, 2009) (“[P]etitioner filed a motion for DNA
testing pursuant to Cal. Pen. Code § 1405 in the California Superior Court. (Ex. H.) This motion did not toll
the statute of limitations.”).
Courts interpreting other post-conviction statutory provisions for DNA testing motions have concluded that such motions properly toll the running of
the period of limitation because the statutory provisions upon which they are based actually call for a review of the judgment. Hutson v. Quarterman, 508 F.3d
236, 238–39 (5th Cir. 2007) (court held that Texas
statute that provided for post-conviction DNA testing
tolled the habeas period of limitation because, if the
court found favorably to the prisoner regarding the
likelihood that the prisoner would have been convicted had the new DNA results been available at
trial, the court could release the prisoner on bail) 9;
9 The Fifth Circuit’s holding in Hutson is suspect. Three dissent-
ing Justices in Skinner v. Switzer, 562 U.S. 521 (2011), concluded
that the DNA testing statute may be part of Texas’ collateral review procedures but it is not “an ‘application for . . . collateral
review’ under 28 U.S.C. § 2244(d)(2).” Skinner, 562 U.S. at 538
n.2 (the majority did not consider or take a position on that issue). Moreover, the Texas courts have clearly concluded, despite
Hutson, that the criminal procedure chapter that authorizes the
court to order DNA testing authorizes that, and nothing more.
Farrell v. Texas, No. 09-15-00454, 2017 WL 1536186, at *3 (Tex.
App. Apr. 26, 2017). It does not permit the court to order a new
trial; to obtain that relief, the prisoner must file a habeas corpus
petition. Texas v. Holloway, 360 S.W.3d 480, 485-490 (Tex. Crim.
App. 2012), overruled in part on other grounds by Whitfield v.
Texas, 430 S.W.3d 405, 409 (Tex. Crim. App. 2014). The premise
of the Hutson court’s conclusion was that Texas courts consider
motions under the post-conviction DNA testing statute to be like
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McDonald v. Smith, No. 02-cv-6743, 2003 WL
22284131, at *6 (E.D.N.Y. Aug. 21, 2003), aff’d on
other grounds, 134 F. App’x 466 (2d Cir. 2005) (court
held that motions for DNA testing, which were provided for in the statute setting forth procedure for motions to vacate judgment, N.Y. Crim. Pro. § 440.30, “is
akin to a section 440.10 motion to vacate, it is distinguishable from motions for discovery, which do not toll
the limitation period.”); Jackson v. Hendricks, No.
Civ.A.04-2145, 2006 WL 1307655, at *7 (D.N.J. May
8, 2006 ) (court determined that PCR petition seeking
DNA testing tolled the habeas period of limitation).
These cases beg the question, is the motion Petitioner filed in the state court like a “discovery” motion
or a “new trial” motion? Section 770.16 plainly contemplates both types of relief, but the language of the
statute also suggests that the relief is available in two
separate stages. The statute provides: “a defendant . .
. may petition the circuit court to order DNA testing
of biological material . . . and for a new trial based
on the results of that testing . . . .” Mich. Comp.
Laws § 770.16 (emphasis added). The Michigan courts
have recognized that the statute contemplates two
distinct procedural phases:
MCL 770.16 envisions two main phases; the
first phase involves the court assessing
whether DNA testing should be ordered, and
the second phase entails, if DNA testing was
ordered, whether a motion for new trial
should be granted. Here, we are solely concerned with the first phase. As indicated
a habeas petition. Hutson, 508 F.3d at 239 n.17. That is clearly
no longer the case.
87a
earlier, if a defendant satisfies the required
factors with respect to the question whether
DNA testing should be ordered, “[t]he court
shall order DNA testing[.]” MCL 770.16(4)
(emphasis added). Accordingly, it would be
improper to deny DNA testing on the basis
that a court concludes that it would deny a future motion for new trial regardless of the results of any DNA testing. A court is not statutorily permitted to conflate the two phases of
analysis.
People v. Poole, 874 N.W.2d 407, 414 (Mich. Ct. App.
2015). 10
The motion Petitioner filed on February 9, 2018,
seeks both types of relief: an order for testing and a
new trial based upon the results. The two are not only
distinct, per Poole, but also sequential. The first
step—the motion for testing—is simply not a collateral attack on the judgment. It seeks only discovery
and should not toll the running of the period of limitation.
10 Respondent points out that even the first phase involves two
distinct inquiries that serve different purposes: the requirements
of subparagraph 1 spell out preconditions to filing the motion;
and the requirements of subparagraph 3 spell out the circumstances where the motion to test must be granted. (Resp’t Br.,
ECF No. 20, PageID.295–297.) Respondent then argues that the
trial court denied Petitioner’s motion because he failed to satisfy
the preconditions and, thus, his motion was not “properly filed”
and could not toll the running of the period of limitation. Because
the undersigned concludes that the motion could not toll the period of limitation even if it were “properly filed,” I will not address Respondent’s argument regarding proper filing.
88a
The second step—the motion for new trial—is
premature until testing is ordered. In fact, it does not
appear that the motion for new trial contemplated by
Mich. Comp. Laws § 770.16 is any different than any
other such motion under Michigan Court Rule 6.431.
Under that rule, once the conviction is final—as was
the case for Petitioner—the defendant must seek relief by way of a motion for relief from judgment under
subchapter 6.500. Mich. Ct. R. 6.431(A)(4). Once the
testing is ordered, even if the defendant must seek relief under subchapter 6.500, he is permitted to file
even a successive motion, because the testing results
would be “new evidence” under 6.502(G)(2). 11 Until
the testing is ordered, however, that part of the motion is not “properly filed.” Until Petitioner has new
test results, he does not have new evidence to justify
his filing of a successive petition. For that reason, the
undersigned concludes that Petitioner’s request “for a
new trial based upon the results of the testing of said
biological material” cannot toll the running of the period of limitation as a properly filed collateral attack.
The motion Petitioner filed on February 9, 2018,
whether considered as a motion for DNA testing or as
a motion for new trial, was not a properly filed collateral attack. For that reason, the motion did not toll
11 The Sixth Circuit Court of Appeals similarly considers new
DNA test results as overcoming a bar to second or successive petitions. In re Michael D. Harris, No. 17-2603, p. 2 (6th Cir. May
24, 2018) (“The events giving rise to Harris’s claims related to
the DNA testing began in 2016 when he first obtained that testing. Because he could not have presented those claims in a prior
habeas petition, Harris is not required to obtain our authorization.”).
89a
the running of the period of limitation. Accordingly,
the petition was untimely and is properly dismissed.
Although not germane to the issue of timeliness,
it is worthwhile to touch upon the merits of Petitioner’s motion for DNA testing when considering
what Petitioner has lost by virtue of the trial court’s
denial of the motion. The SANE collected swabs,
smears, wipes, and the victim’s underwear. (SANE
Report Excerpt, ECF No. 21-16, PageID.1311.) Forensic Scientist Cassandra Campbell, of the Michigan
State Police Crime Lab in Lansing, Michigan, tested
the items that the SANE collected. (Trial Tr. II, ECF
No. 21-6, PageID.725–729.) Ms. Campbell reported
that all of the swabs (except the oral swabs), the anal
and vaginal smears, and the undergarments tested
positive for the presence of semen. (Id.) She took cuttings from the swabs labeled anal 12 and vaginal for
further testing. (Id.) Forensic Scientist Lori Bruski
tested the swab cuttings. She identified genetic material from the victim and Petitioner in the cuttings. Put
12 There was some inconsistency between the SANE’s report re-
garding the items collected and the lab’s report regarding the
items tested. The nurse reported that she collected cervical, vaginal, oral, pubic area, and speculum swabs. Ms. Campbell reported that she received and tested swabs labeled cervical, anal,
oral, speculum, labial fold, and external. Similarly, the nurse reported that she collected cervical and oral smears, but Ms. Campbell reported that she received and tested vaginal, anal, and oral
smears. Ms. Campbell also reported that each kit has three preprinted sleeves for the glass slides used for smears. Those sleeves
are labeled vaginal, anal, and oral. Thus, it does not appear that
the SANE report form checklist for smears matches the contents
of the standard kit.
90a
simply, Petitioner’s semen was found in the victim’s
vagina.
The items that Petitioner wants tested now are
his own bedding and the materials collected by the
SANE that were not DNA tested by Ms. Bruski (the
victim’s underwear and the other swabs—speculum,
labial fold, and external). Those materials collected by
the SANE were tested, and tested positive for, the
presence of sperm. It is a reasonable inference that
the sperm was Petitioner’s. But, even if the sperm
were not Petitioner’s, it would not detract one whit
from the persuasive force of the testing that showed
the sperm identified in the swabs taken from the victim’s vaginal and anal area was Petitioner’s. Similarly, if Petitioner’s bedding—part of which was taken
from his dryer, not his bed—did not have the victim’s
DNA in it or did have Petitioner’s DNA (whether from
epithelial or sperm cells) in it, it would not tend to
make any fact of significance to the determination of
his guilt more or less likely.
Petitioner may be permitted to file a post-conviction motion for DNA testing, but the motion he filed is
nothing more than a smokescreen. The trial court denied Petitioner’s motion for DNA testing because it
did not meet and could not meet any of the statutory
requirements for relief. But even apart from the statutory preconditions to filing, Petitioner’s motion was
utterly frivolous.
The pointlessness of Petitioner’s motion for DNA
testing is even more apparent when one considers that
the trial court permitted Petitioner to hire his own expert to conduct DNA tests on the evidence and that
Petitioner’s expert conducted DNA tests on the
91a
evidence. (Mot. Hr’g Tr., ECF No. 21-3, PageID.408–
413; Hr’g Tr., ECF No. 21-4, PageID.426–428.) Petitioner is aware of those results, but they are not part
of the state court record, which suggests the results
did not exculpate Petitioner in any way.
Petitioner’s request for DNA testing is in the nature of a discovery motion; it is not the sort of collateral attack that warrants tolling under the statute.
III. Procedural default
Respondent argues that this Court’s review of virtually all of Petitioner’s habeas grounds is barred by
the doctrine of procedural default. There are two types
of procedural default. First, there is procedural default under state law. When a state-law default prevents further state consideration of a federal issue,
the federal courts ordinarily are precluded from considering that issue on habeas corpus review. See Ylst
v. Nunnemaker, 501 U.S. 797, 801 (1991). To determine whether a petitioner procedurally defaulted a
federal claim in state court, the Court must consider
whether (1) the petitioner failed to comply with an applicable state procedural rule, (2) the state court enforced the rule so as to bar the claim, and (3) the state
procedural default is an “independent and adequate”
state ground properly foreclosing federal habeas review of the federal constitutional claim. See Hicks v.
Straub, 377 F.3d 538, 551 (6th Cir. 2004). In determining whether a state procedural rule was applied to
bar a claim, a reviewing court looks to the last reasoned state-court decision disposing of the claim. See
Ylst, 501 U.S. at 803; Guilmette v. Howes, 624 F.3d
286, 291–92 (6th Cir. 2010).
92a
Second, there may be a procedural default if Petitioner has failed to raise a federal issue in the state
courts. Before the Court may grant habeas relief to a
state prisoner, the prisoner must exhaust remedies
available in the state courts. 28 U.S.C. § 2254(b)(1);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts
bearing upon a petitioner’s constitutional claim. Id. at
844, 848; see also Picard v. Connor, 404 U.S. 270, 275–
78 (1971); Duncan v. Henry, 513 U.S. 364, 365–66
(1995); Anderson v. Harless, 459 U.S. 4, 6 (1982).
Failure to fairly present an issue to the state
courts is only a problem if a state court remedy remains available for petitioner to pursue. Rust v. Zent,
17 F.3d 155, 160 (6th Cir. 1994). If no further state
remedy is available to Petitioner, his failure to exhaust does not bar relief; but the claim may be procedurally defaulted. Gray v. Netherland, 518 U.S. 152,
161–62 (1996).
If a petitioner procedurally defaulted his federal
claim, the petitioner must demonstrate either (1)
cause and prejudice—cause for his failure to comply
with the state procedural rule (or fairly present the
issue in the state courts) and actual prejudice flowing
from the violation of federal law alleged in his claim—
or (2) that a lack of federal habeas review of the claim
will result in a fundamental miscarriage of justice. See
House v. Bell, 547 U.S. 518, 536 (2006); Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 495–96 (1986); Hicks, 377 F.3d at
551–52. The miscarriage-of-justice exception only can
93a
be met in an “extraordinary” case where a prisoner asserts a claim of actual innocence based upon new reliable evidence. House, 547 U.S. at 536–37. A habeas
petitioner asserting a claim of actual innocence must
establish that, in light of new evidence, it is more
likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt. Id.
(citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Respondent argues that Petitioner has procedurally defaulted habeas grounds I, II, V, VI, VII, VIII,
and IX. The Court notes that there is also an argument that petitioner procedurally defaulted habeas
ground III. To show cause sufficient to excuse a failure
to raise claims, Petitioner must point to “some objective factor external to the defense” that prevented him
from raising the claims. Murray, 477 U.S. at 488; see
McCleskey v. Zant, 499 U.S. 467, 497 (1991). Factors
that may establish cause include interference by officials, attorney error rising to the level of ineffective
assistance of counsel, and a showing that the factual
or legal basis for a claim was not reasonably available.
Cvijetinovic v. Eberlin, 617 F.3d 833, 837 (6th Cir.
2010) (citing Hargrave-Thomas v. Yukins, 374 F.3d
383, 388 (6th Cir. 2004) (quoting McCleskey, 499 U.S.
at 493–94) (quotations omitted)). For Petitioner’s procedural defaults, he offers as “cause” the ineffective
assistance of his trial or appellate counsel.
The showing necessary to establish ineffective assistance of counsel as “cause” is the same showing necessary to establish an independent claim of ineffective
assistance of counsel: the petitioner must prove (1)
that counsel’s performance fell below an objective
standard of reasonableness, and (2) that counsel’s
94a
deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. Strickland v. Washington, 466 U.S. 668, 687
(1984). A court considering a claim of ineffective assistance “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Even if a court
determines that counsel’s performance, in light of the
circumstances as they existed at the time of counsel’s
action, was outside the wide range of reasonable professional assistance, the defendant is not entitled to
relief if counsel’s error had no effect on the judgment.
Id. at 690–91.
To determine whether counsel rendered ineffective assistance because he or she failed to raise a
claim, therefore, necessarily involves some inquiry
into the merits of the claim that counsel failed to raise.
There is simply no other way to assess the professional reasonableness of counsel’s failure to raise the
claim or the effect that failure had on the judgment.
Thus, it is often true that resolution of a procedural
default claim necessarily involves consideration of the
merits of the claim foregone. At that point, it might
well be easier to simply address the merits claim.
The Supreme Court has held that federal courts
are not required to address a procedural-default issue
before deciding against the petitioner on the merits.
Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel giving the [other]
95a
question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state
law.”); see also Hudson v. Jones, 351 F.3d 212, 215–16
(6th Cir. 2003) (citing Lambrix and Nobles v. Johnson,
127 F.3d 409, 423–24 (5th Cir. 1997)); Overton v. MaCauley, 822 F. App’x 341, 345 (6th Cir. 2020) (“Although procedural default often appears as a preliminary question, we may decide the merits first.”);
Where the procedural default issue raises more questions than the case on the merits, the Court may assume without deciding that there was no procedural
default or that Petitioner could show cause and prejudice for that default. See Hudson, 351 F.3d at 215–16;
Binder v. Stegall, 198 F.3d 177, 178 (6th Cir. 1999)
(“[T]he procedural default raises more questions than
the case on the merits. We will therefore assume without deciding that there was no procedural default by
petitioner and decide the merits of the case.”); Watkins v. Lafler, 517 F. App’x 488, 498 (6th Cir. 2013)
(“[T]he district court specifically noted that it chose
not to address these [procedural default] arguments
and rather assumed that no procedural default existed because “the procedural default issue raises
more questions than the case on the merits.’ . . . Given
the variety and complexity of the defaults involved . .
. we do likewise.”). For most of Respondent’s claims of
procedural default, it is simpler to resolve Petitioner’s
claims on the merits. The undersigned has proceeded
accordingly, with a couple of exceptions that are explained in detail below.
96a
IV. AEDPA standard
The AEDPA “prevent[s] federal habeas ‘retrials’”
and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone,
535 U.S. 685, 693–94 (2002). An application for writ
of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted
with respect to any claim that was adjudicated on the
merits in state court unless the adjudication “(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
federal law as determined by the Supreme Court of
the United States, or (2) resulted in a decision that
was based upon an unreasonable determination of the
facts in light of the evidence presented in the state
court proceeding.” 28 U.S.C. § 2254(d). “Under these
rules, [a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of
the state court’s decision.” Stermer v. Warren, 959
F.3d 704, 721 (6th Cir. 2020) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011) quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)) (internal quotation marks omitted). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S. 312, 316
(2015) (internal quotation omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C.
§ 2254(d). This Court may consider only the holdings,
and not the dicta, of the Supreme Court. Williams v.
Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell,
271 F.3d 652, 655 (6th Cir. 2001). In determining
whether federal law is clearly established, the Court
97a
may not consider the decisions of lower federal courts.
Williams, 529 U.S. at 381–82; Miller v. Straub, 299
F.3d 570, 578–79 (6th Cir. 2002). Moreover, “clearly
established Federal law” does not include decisions of
the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565
U.S. 34, 37–38 (2011). Thus, the inquiry is limited to
an examination of the legal landscape as it would have
appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court
adjudication on the merits. Miller v. Stovall, 742 F.3d
642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under
the “contrary to” clause if the state court applies a rule
different from the governing law set forth in the Supreme Court’s cases, or if it decides a case differently
than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405–06). “To satisfy this
high bar, a habeas petitioner is required to ‘show that
the state court’s ruling on the claim being presented
in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods, 575 U.S. at 316 (quoting Harrington, 562 U.S. at 103).
Determining whether a rule application was unreasonable depends on the rule’s specificity. Stermer,
959 F.3d at 721. “The more general the rule, the more
leeway courts have in reaching outcomes in case-bycase determinations.” Yarborough, 541 U.S. at 664.
“[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their
98a
adjudication of a prisoner’s claims.” White v. Woodall,
572 U.S. 415, 424 (2014) (internal quotations omitted).
The AEDPA requires heightened respect for state
factual findings. Herbert v. Billy, 160 F.3d 1131, 1134
(6th Cir. 1998). A determination of a factual issue
made by a state court is presumed to be correct, and
the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th
Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d
423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This
presumption of correctness is accorded to findings of
state appellate courts, as well as the trial court. See
Sumner v. Mata, 449 U.S. 539, 546–547 (1981); Smith
v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Section 2254(d) limits the facts a court may consider on habeas review. The federal court is not free to
consider any possible factual source. The reviewing
court “is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “If a review
of the state court record shows that additional factfinding was required under clearly established federal
law or that the state court’s factual determination was
unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the underlying
claim on its merits. Stermer, 959 F.3d at 721 (citing,
inter alia, Brumfield v. Cain, 576 U.S. 305 (2015), and
Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).
If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s claim was
never ‘adjudicated on the merits’ by a state court 28
99a
U.S.C. § 2254(d), AEDPA deference no longer applies.”
Stermer, 959 F.3d at 721. Then, the petitioner’s claim
is reviewed de novo. Id. citing Maples v. Stegall, 340
F.3d 433, 436 (6th Cir. 2003). 13
A. Petitioner was deprived of his right to equal
protection when he was denied testing of forensic evidence (habeas issue XI)
Because the DNA testing issue—the last listed of
Petitioner’s eleven habeas issues—was addressed in
depth in resolving the statute of limitations question,
the Court begins its merits discussion with this issue.
Petitioner offers little elaboration with regard to his
equal protection argument. He quotes the Equal Protection Clause, contends he met the requirements for
testing under Mich. Comp. Laws § 770.16, notes that
equal protection requires that similarly situated persons be treated alike, and concludes that his equal
protection rights have been violated. (Pet’r’s Br., ECF
No. 10-1, PageID.207–208.) Whether or not Petitioner’s conclusory allegations state a claim for violation of his equal protection rights, the allegations do
not state a claim that warrants habeas corpus relief.
Michigan’s DNA testing statute is a form of postconviction remedy. See, e.g., Dist. Att’y’s Office for the
Third Judicial Dist. v. Osborne, 557 U.S. 52, 67–69
13 Where the state court refused to consider the merits of a claim
because of a procedural default, the undersigned concludes that
such claims were never “adjudicated on merits” by the state court
and, therefore, that de novo review applies. Nonetheless, where
the merits review rejecting Petitioner habeas grounds below is
de novo, the same result would follow if the state courts had offered a merits decision or some analysis to which the Court might
defer.
100a
(2009). The states have no constitutional obligation to
provide such postconviction remedies:
Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Noia, 372
U.S. 391, 423–424 (1963). It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no
obligation to provide this avenue of relief, cf.
United States v. MacCollom, 426 U.S. 317, 323
(1976) (plurality opinion) . . . .
Pennsylvania v. Finley, 481 U.S. 551, 556–57 (1987).
The Supreme Court has very specifically declined to
recognize a free-standing constitutional right to access DNA evidence in the postconviction setting. Osborne, 557 U.S. at 55–56; see also Alley v. Key, No. 065552, 2006 WL 1313364 (6th Cir. May 14, 2006) (“[W]e
agree for purposes of the dispute now before us, with
the district court’s ruling that there exists no generally constitutional right to post-judgment DNA testing.”). Therefore, Petitioner’s right to DNA testing
arises under the state statute, not the federal constitution.
Petitioner’s claim that he is entitled to relief under Mich. Comp. Laws § 770.16 is a claim that the
state erred in applying its own statute. Such a claim
is not cognizable on habeas review. The extraordinary
remedy of habeas corpus lies only for a violation of the
Constitution. 28 U.S.C. § 2254(a). As the Supreme
Court explained in Estelle v. McGuire, 502 U.S. 62
101a
(1991), whether or not a state court correctly applied
its own law “is no part of the federal court’s habeas
review of a state conviction . . . [for] it is not the province of a federal habeas court to re-examine statecourt determinations on state-law questions.” Id. at
67–68. The decision of the state courts on a state-law
issue is binding on a federal court. See Wainwright v.
Goode, 464 U.S. 78, 84 (1983); see also Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly
held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”). The state court’s decision that Petitioner was not entitled to postconviction DNA testing
under the statute, therefore, is axiomatically correct
on habeas review.
Although Petitioner and this Court are bound by
the state court’s determination that the statute does
not entitle Petitioner to DNA testing, that does not
rule out the possibility that the state has applied the
statute to Peti
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