Petition for Writ of Certiorari — Oyd McCray, Petitioner v. Jeff Tanner, Warden

NO: ____

IN THE

SUPREME COURT OF THE UNITED STATES

OYD McCRAY,

v.

Petitioner,

JEFF TANNER,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Casey Swanson –Counsel of Record

Counsel for Petitioner

Federal Community Defender

613 Abbott St., Suite 500

Detroit, Michigan 48226

Telephone No. (313) 967-5542

casey_swanson@fd.org

James R. Gerometta

Counsel for Petitioner

Law Office of James Gerometta PLLC

27 E. Flint St, Suite 2

Lake Orion, Michigan 48236

Telephone No. (313) 530-9505

james@geromettalaw.com

QUESTIONS PRESENTED FOR REVIEW

Where Petitioner presented substantial new evidence that not

only shows he is innocent of murder, but further reveals the identity of

the actual killer does the Sixth Circuit’s problematic and piecemeal

fashion review of a vast factual record in this case require review by this

Court in order to reaffirm the availability of the gateway actual

innocence standard in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995)

and to prevent a miscarriage of justice?

i

PARTIES TO THE PROCEEDINGS

There are no parties to the proceeding other than those named in the caption

of the case.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................................. ii

TABLE OF AUTHORITIES .......................................................................................................... v

PETITION FOR WRIT OF CERTIORARI ................................................................................... 1

OPINIONS BELOW ....................................................................................................................... 1

STATEMENT OF JURISDICTION............................................................................................... 2

STATUTORY PROVISIONS INVOLVED................................................................................... 2

INTRODUCTION .......................................................................................................................... 4

STATEMENT OF THE CASE....................................................................................................... 7

REASON FOR GRANTING THE WRIT ...................................................................................... 9

I.

This Court’s review is necessary to clarify the proper application of the important

standard set forth in Schlup so that those who have sufficiently demonstrated their

innocence may have their petitions for habeas corpus heard on the merits even when they

are filed untimely. ............................................................................................................... 9

CONCLUSION ............................................................................................................................. 14

A-1 - Sixth Circuit Opinion Affirming Denial of Petitioner’s Rule 60(b) Motion and

Dismissing his 28 U.S.C. § 2254 Motion, McCray v. Tanner, No. 18-2001 (6th

Cir. Jul. 17, 2024)…………………………………………............................APP 001

A-2 -

Sixth Circuit Order Denying Petitioner’s Petition for Rehearing En Banc,

McCray v. Tanner, No. 18-2001 (6th Cir. Sept. 20, 2024) ……………..APP 033

A-3 - District Court Decision Denying Petitioner’s Motion for Relief from Judgment

and Dismissing 28 U.S.C. § 2254 Motion Habeas Petition as Time Barred,

McCray

v.

Vasbinder,

No.

03-73490

(E.D.

Mich.

Sept.

12,

2007)..........................................................................................................APP 035

A-4 - District Court Decision Denying Petitioner’s Renewed Motion for Relief from

Judgment, McCray v. Vasbinder, No. 03-73490 (E.D. Mich. Aug. 17,

2018)………………………………………………………………………….....APP 042

iii

A-5 - District Court Initial Opinion Denying Motion for Summary Judgment and

Tolling the Statute of Limitations McCray v. Vasbinder, No. 03-73490 (E.D.

Mich. Apr. 14, 20…………………………………………………………….. APP 072

A-6 - District Court Initial Opinion Granting the Writ of Habeas Corpus, McCray v.

Vasbinder,

No.

03-73490

(E.D.

Mich.

Sept.

14,

2006

...................................................................................................................APP 087

A-7 - Sixth Circuit Opinion Reversing and Remanding District Court Initial Opinion

Granting the Writ of Habeas Corpus, McCray v. Vasbinder, No. 06-2381 (6th

Cir. Aug. 28, 2007)....................................................................................APP 101

A-8 - District Court Order Vacating the Opinion, Judgment and Order Granting a

Conditional and Unconditional Writ of Habeas Corpus and Dismissing the

Habeas Petition as Untimely McCray v. Vasbinder, No. 03-73490 (E.D. Mich.

Sept. 12, 2007)...........................................................................................APP 109

A-9 - Michigan Court of Appeals Decision Affirming Conviction, People v. McCray,

No. 181017 (Mich. Ct. App. June 25, 1996).............................................APP 110

iv

TABLE OF AUTHORITIES

Cases

House v. Bell, 547 U.S. 518, 520, 126 S. Ct. 2064, 2067 (2006)...................................... 12

Keith v. Hill, 78 F.4th 307, 315 (6th Cir. 2023) ................................................................. 11

Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995) ........................................................... 4

Strickland v. Washington, 466 U.S. 668 (1984) ................................................................... 4

Statutes

28 U.S.C. § 1254 .......................................................................................................................... 2

28 U.S.C. § 2254(d) ....................................................................................................... iii, iv, 1, 2

Other Authorities

Sixth Circuit Pattern Jury Instructions, § 1.03(5) ............................................................ 11

Supreme Court Rule 13.1.......................................................................................................... 2

v

IN THE

SUPREME COURT OF THE UNITED STATES

No:

OYD McCRAY,

Petitioner,

v.

JEFF TANNER,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Oyd McCray respectfully petitions this Court for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The Sixth Circuit’s unpublished opinion affirming the denial of Mr. McCray’s

Rule 60(b) motion and dismissing his 28 U.S.C. § 2254 petition as time barred is

included in the Appendix at A-1. The Sixth Circuit’s order denying Petitioner’s

petition for rehearing en banc is included at A-2. The district court’s decision denying

McCray’s motion for relief from judgment and dismissing his habeas petition as time-

1

barred is included at A-3. The district court’s decision denying McCray’s renewed

request for relief from judgment is included at A-4.

The district court’s initial opinion tolling the statute of limitations is included

at A-5. The district court’s initial opinion subsequently granting relief on the merits

is included at A-6. The Sixth Circuit opinion reversing and remanding that decision

is included at A-7. The district court’s order vacating its original opinion and

dismissing the petition as time-barred is included at A-8. The Michigan Court of

Appeals decision affirming his conviction is included at A-9.

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and Part III of

this Court’s rules. The decision of the court of appeals denying Mr. McCray’s petition

for en banc rehearing was entered on September 20, 2024. This petition is timely filed

pursuant to Supreme Court Rule 13.1.

STATUTORY PROVISIONS INVOLVED

The Fourteenth Amendment provides, in pertinent part:

No person shall . . . be deprived of life, liberty, or property,

without due process of law.

Section 2254(d) of Title 28 of the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) states, in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

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granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim—

(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 on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

Section 2254(d) of Title 28 of the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) states, in pertinent part:

(d)

(1) A 1-year period of limitation shall apply to an application

for a writ of habeas corpus by a person in custody pursuant

to the judgment of a State court. The limitation period shall

run from the latest of—

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

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

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

3

INTRODUCTION

Oyd McCray has spent the last 30 years serving a life sentence for a murder

he did not commit. He has spent each of those 30 years attempting to obtain relief

from his wrongful conviction.

McCray was originally granted habeas relief in 2004. Although his petition was

untimely, the district court found that the merits of his petition could nevertheless

be heard because based on the record at that time, it was more likely than not that

no reasonable juror would have found McCray guilty beyond a reasonable doubt

pursuant to Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995). On the merits, the

district court found that the performance of McCray’s trial counsel was

constitutionally deficient pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052 (1984) and that it was unreasonable for the state court to conclude otherwise.

At the heart of trial counsel’s deficient performance was his failure to speak to the

same three witnesses that McCray presented in support of his innocence claim

pursuant to Schlup.

In 2007, the Sixth Circuit reversed the district court’s decision, finding that

McCray had not presented sufficient evidence to toll the statute of limitations

pursuant to Schlup. App. 7, at 101. In a concurring opinion, Judge Gilman wrote

separately to explain that although the AEDPA statute of limitations barred

McCray’s petition from being heard and McCray had not met the requisite standard,

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he would have otherwise been inclined to affirm on the merits due to the gravity of

trial counsel’s ineffectiveness in a pre-AEDPA world. He stated:

A review of the record reveals a grave deficiency in lawyer

preparation. McCray's counsel not only failed to interview

or subpoena the three witnesses whose names were

provided to him by McCray, he also ignored potential

witnesses that actually contacted him in an attempt to

assist in McCray's defense.

Id. at 108.

Substantial new evidence was subsequently uncovered. Mr. McCray was not

only able to show his actual innocence but was able to show the identity of the actual

murderer. In addition to the three witnesses considered by the Sixth Circuit in

McCray I, the evidence uncovered after McCray I – when viewed in light of the record

as a whole as required by Schlup - significantly strengthens McCray’s innocence

claim. To date, the cumulative evidence includes:

•

•

•

•

•

•

The identity of the actual shooter and his accomplice.

Inculpatory statements from the perpetrators in which they reveal their

roles as the shooter and getaway driver.

Recantations from the witnesses that implicated McCray, along with their

sound and credible explanations for why they incorrectly identified him as

the shooter.

Significant evidence corroborating not only the credibility of those

recantations but also subsequent statements of those witnesses concerning

the murder and pre-trial investigation.

Ten eyewitnesses to the murder, each of whom have stated that Oyd

McCray was not the shooter.

An alibi witness, who corroborated the statements of these eyewitnesses by

testifying that McCray was not present at the time and location of the

shooting.

5

Post-conviction investigation shows Oyd McCray is innocent of the shooting of

Tommy Leonard. On February 28, 1994, Perry “Tommy” Leonard was sitting in the

driver’s seat of his Suburban on Bessemore Street in Detroit when Anthony Jones

walked up to his vehicle, shot, and killed him. Anthony Jones subsequently climbed

into a blue Chevy Malibu, and his getaway driver, Dartrell Effinger, escorted him

away from the scene.

In an attempt to get away with murder, Anthony Jones and Dartrell Effinger

spent the following 7 months ensuring that Oyd McCray was charged with and

convicted of their crime. Because their efforts have proven successful thus far,

McCray, who was elsewhere with his sister’s family during the shooting, would be

forced to spend the rest of his life proving his innocence from within the four walls of

his prison cell.

To date, McCray has identified the actual shooter and produced evidence to

undermine every piece of evidence used to convict him. Nevertheless, McCray has yet

to obtain a proper merits review of the constitutional violations he suffered at trial,

the most egregious of which was done at the hands of his own counsel when he failed

to investigate the evidence that now surrounds McCray’s innocence claim.

The district court held that McCray did not meet the gateway standard set

forth in Schlup. The Sixth Circuit in McCray II affirmed. App. 1, at 001.

In reaching this conclusion, the Sixth Circuit evaluated the evidence using a

mechanism that is directly contrary to what this Court instructed in Schlup. Instead

6

of reviewing the evidence in light of the record as a whole, it looked at each piece in a

vacuum and made determinations about credibility and reasonable doubt as it related

to each individual witness standing alone. In doing so, it failed to see that when

viewed in light of the record as a whole, the cumulative evidence is sufficient to

demonstrate that it is more likely than not that no reasonable juror would find

McCray guilty beyond a reasonable doubt.

This Court’s review is needed to clarify the proper application of the important

standard set forth in Schlup so that those who have sufficiently demonstrated their

innocence may have their petitions for habeas corpus heard on the merits even when

they are untimely.

STATEMENT OF THE CASE

1.

In 1994, Michigan prosecutors filed murder charges against Oyd

McCray for the murder of Perry “Tommy” Leonard. In doing so, prosecutors primarily

relied on statements from Eric Perrin, Dartrell Effinger, and Anthony Jones.

2.

Eric Perrin – the only eyewitness who does not personally know Oyd

McCray, Anthony Jones, or Dartrell Effinger – explained to police that he saw the

shooter and his getaway driver (both unknown to him) arrive in a blue Chevy Malibu.

The passenger got out of the Malibu, shot Tommy Leonard, got back into the

passenger side of the Malibu, and drove away.

3.

Post conviction investigation revealed to undersigned counsel what it

should have revealed to trial counsel in 1994 – Dartrell Effinger and Anthony Jones

7

made statements to police in which they admitted to being the ones who arrived and

left in a blue Chevy Malibu. In nearly identical statements to police, they explained

that they were present at the shooting, that Dartrell Effinger was driving his blue

Chevy Malibu and that Anthony Jones was in the passenger seat. They explained

that when they saw Tommy Leonard, Anthony Jones got out of the Malibu, got back

in after the shooting, and they drove away. Their statements follow Eric Perrins’s

neutral retelling exactly – except in their statements, they stated Oyd McCray was

the shooter. They have both since recanted their identification of McCray as the

shooter. Their recantations include credible reasons for why they lied initially. The

cumulative record itself speaks to their true motivation for naming Oyd McCray as

the shooter – they were getting away with murder. All of this was made part of the

record after McCray I. Because of the improper application of Schlup, the majority

panel in McCray II failed to see how this evidence – when viewed as a whole – relates

to McCray’s innocence claim.

4.

The police conducted a live lineup in which Oyd McCray was one of only

two individuals who had the same complexion that Perrin attributed to the shooter.

Although Anthony Jones and Dartrell Effinger were with police, they were not

participants in the lineup. When police asked Eric Perrin to choose the shooter and

the driver (individuals for which he gave two very different descriptions) from the

same lineup, he said McCray “looked like” the shooter, and that another individual

looked like the driver. That individual was not Dartrell Effinger and was never

8

charged in connection with Leonard’s murder. He also noted that McCray had a

moustache, and the shooter was clean shaven. The police file also contained a photo

of Anthony Jones at the time of his arrest. He also matched Perrin’s description of

the shooter’s complexion. Unlike McCray, Jones was clean shaven. All of this was

made part of the record after McCray I. Because of the improper application of

Schlup, the majority panel in McCray II failed to see how the evidence – when viewed

as a whole – relates to McCray’s innocence claim.

5.

A number of other witnesses – including alibi witness, eyewitnesses, and

witnesses who heard recantations and confessions that all exonerate McCray – also

play a significant role in corroborating McCray’s exculpatory evidence. All of this

evidence was made part of the record after McCray I. Because of the improper

application of Schlup, the majority panel in McCray II failed to see how the evidence

– when viewed as a whole – relates to McCray’s innocence claim.

REASON FOR GRANTING THE WRIT

I.

This Court’s review is necessary to clarify the proper application

of the important standard set forth in Schlup so that those who

have sufficiently demonstrated their innocence may have their

petitions for habeas corpus heard on the merits even when they are

filed untimely.

The Sixth Circuit in McCray II misapplied this Court’s decision in Schlup v.

Delo, 513 U.S. 298, 330, 115 S. Ct. 851 (1995) and condemned an innocent man to life

in prison when it refused to look at the record as a whole when deciding whether

9

McCray had sufficiently proven that it is more likely than not that no reasonable

juror would find him guilty beyond a reasonable doubt.

The Sixth Circuit overstated McCray’s burden. It began its analysis by stating,

“[t]he ‘actual-innocence’ standard that McCray must satisfy here is among the most

demanding in federal law.” App. 1, at 019. However, the relevant standard is lower

than many standards even in the habeas context – including the standard for a freestanding innocence claim. Schlup was decided to give petitioners who do not meet the

more stringent test for a free standing innocence claim a vehicle to litigate their case

and to prevent constitutional errors from resulting in the conviction of innocent

persons.

As explained by this Court in Schlup, the burden for passing through this

gateway to have an untimely habeas petition reviewed on the merits involves proving

that its more likely than not that no reasonable juror would convict based on the

record today. Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct. 851 (1995). It explained

that the burden for a gateway innocence claim is less stringent than other types

because in this context, “the claim of innocence [is paired] with an assertion of

constitutional error.” Id. at 316.

[U]nder the gateway standard we describe today, the newly

presented evidence may indeed call into question the

credibility of the witnesses presented at trial. In such a

case, the habeas court may have to make some credibility

assessments.

***

10

Id. at 330.

[T]he habeas court must consider what reasonable triers of

fact are likely to do. Under this probabilistic inquiry, it

makes sense to have a probabilistic standard such as “more

likely than not.”

The question is about the likelihood of any juror to be able to find that the

prosecution, based on all evidence old and new, could meet its burden – proof beyond

a reasonable doubt – truly the “most demanding” burden of all. Proof beyond a

reasonable doubt “is proof ‘so convincing that you would not hesitate to rely and act

on it in making the most important decisions in your own [life].’” Keith v. Hill, 78

F.4th 307, 315 (6th Cir. 2023), cert. denied sub nom. Keith v. May, 144 S. Ct. 1017,

218 L. Ed. 2d 179 (2024) (citing Sixth Circuit Pattern Jury Instructions, § 1.03(5)).

The standard demands that courts look to the record as a whole to determine how

reasonable jurors would likely assess the credibility of witnesses at trial based on all

evidence, old and new. Schlup v. Delo, 513 U.S. 298, 330 (1995). The panel majority

failed to do that here.

The Sixth Circuit, even after stating the proper burden, engaged in an analysis

that completely failed to consider the record as a whole. It looked at each piece of

evidence in isolation against the trial testimony of Eric Perrin. Sometimes it

discarded new witnesses one at a time. Sometimes it discarded them by the bundle –

casting aside witnesses for being relatives of McCray, for being incarcerated people,

for coming forward too late, or for being part of the group of witnesses presented to

the Sixth Ciruit in McCray I.

11

The Sixth Circuit’s decision to disregard entire groups of evidence based on per

se rules for declaring that type of evidence incredible dismisses this Court’s command

to truly consider whether it is more likely than not that any reasonable juror –

“viewing the record as a whole” – would find reasonable doubt. House v. Bell, 547

U.S. 518, 520, 126 S. Ct. 2064, 2067 (2006).

This approach prevented the majority in McCray II from seeing what was clear

to the dissent:

Since trial, McCray has marshaled substantial new

evidence that shows that he is likely innocent. In fact, it

shows who likely did kill Perry Leonard: Anthony Jones.

The vast majority of this new evidence is consistent,

corroborative, and credible. Under the weight of this

evidence, the slender reed on which the state rested its case

buckles.

App. 1, at 024.

By failing to apply the Schlup standard appropriately, the Sixth Circuit missed

the key point – Eric Perrin, the eye witness whose testimony is the only remaining

evidence against McCray, has always maintained that the shooter got into a blue car

after the shooting. The evidence Oyd McCray has presented after McCray I

consistently demonstrates that Anthony Jones was the person who got into the car

after the shooting. Although this crucial aspect of the record was not meaningfully

analyzed in the majority opinion, it was not lost on the dissenting judge –

The only non-recanting eyewitness to the shooting, Eric

Perrin, testified that the shooter left in the blue Chevrolet

Malibu. Either Perrin is to be believed, in which case he

misidentified McCray when he saw Jones, or his testimony

as the only non-recanting witness is not credible,

12

eviscerating the state's thin case. The majority declines to

grapple with, let alone address, this core issue. Confronted

with the wealth of evidence undermining Perrin and

affirmatively exculpating McCray, any reasonable juror

would have a reasonable doubt about McCray's guilt.

Id. at 32.

The Sixth Circuit’ s decision to disregard how important pieces of the record fit

together as a whole in this case to corroborate and lend credibility to McCray’s

gateway innocence claim conflicts with precedent from this Court. Schlup v. Delo, 513

U.S. 298 (1995), House v. Bell, 547 U.S. 518 (2006).

Without clear guidance on how to properly apply the standard in Schlup, those

like McCray – who have filed untimely petitions in the Sixth Circuit– will continue

to be dismissed without ever having the opportunity to be heard on the merits of their

petitions despite having raised substantial and credible innocence claims supported

by credible evidence. The standard actually used by the Sixth Circuit in McCray II

after it paid brief lip service to the Schlup standard will continue to transport

petitioners like McCray to a pre-Schlup world, where “the mere existence of sufficient

evidence to convict would be determinative of petitioner's claim” Schlup v. Delo, 513

U.S. 298, 330, 115 S. Ct. 851 (1995).

This case presents an ideal vehicle for examining this question. The evidence

of McCray’s innocence – when properly viewed in light of the record as a whole – is

overwhelming. There is nothing left supporting this conviction. Applying the proper

standard here would provide much needed clarity on how courts are to engage in this

13

analysis and it would do so within the safety of a record that to date, outshines even

the strength of the evidence Schlup himself presented when this Court announced its

rule. Where someone like McCray, who “presents evidence of innocence so strong that

a court cannot have confidence in the outcome of the trial unless the court is also

satisfied that the trial was free of nonharmless constitutional error,” they “should be

allowed to pass through the gateway and argue the merits of his underlying claims.”

Schlup v. Delo, 513 U.S. 298, 316, 115 S. Ct. 851 (1995).

CONCLUSION

For the foregoing reasons, Petitioner Oyd McCray asks that a writ of certiorari

issue to review the judgment of the United States Court of Appeals for the Sixth

Circuit.

Respectfully submitted,

FEDERAL PUBLIC DEFENDER

By:

/s/ Casey Swanson

Casey Swanson

Assistant Federal Defender

/s/ James R. Gerometta

James R. Gerometta

Law Office of James Gerometta PLLC

Counsel for Petitioner Oyd McCray

Detroit, Michigan

December 19, 2024

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