UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEVAUGHN MICHAEL WILSON, 

 

 Petitioner, Case Number 4:14-cv-12951 

 Honorable Linda V. Parker 

DAVID BERGH, 

 

 Respondent. 

__________________________________/ 

OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR 

SUMMARY JUDGMENT [ECF No. 4] AND GRANTING A CERTIFICATE 

OF APPEALABILITY 

 Devaughn Michael Wilson (“Petitioner”), a Michigan Department of 

Corrections prisoner, with the assistance of counsel, filed a petition for writ of 

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges two convictions 

from the Circuit Court for Oakland County, Michigan: assault with intent to 

commit murder, Mich. Comp. Laws § 750.83, and possession of a firearm during 

the commission of a felony, Mich. Comp. Laws § 750.227(b). Petitioner asserts he 

was denied the effective assistance of counsel when his trial attorney failed to 

present two witnesses at trial. 

 This matter is before the Court on Respondent’s motion for summary 

judgment, in which he argues that the petition is time-barred pursuant to the 

Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations, 

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28 U.S.C. § 2244(d)(1). Petitioner filed a response to the motion asserting that the 

untimeliness of his petition should be excused because he is actually innocent. For 

the reasons that follow, the Court is granting Respondent’s motion because the 

petition was untimely filed, and Petitioner fails to demonstrate that he is actually 

innocent. 

I. Background 

 This case involves a shooting on a residential street in Pontiac, Michigan, on 

the evening of June 11, 2005. At trial, the evidence showed that Petitioner and 

three other men were gathered in front of Petitioner’s house. When a Monte Carlo 

drove by, words were exchanged between the occupants of the car and the group of 

men standing in front of Petitioner’s house. 

 The Monte Carlo stopped in the middle of the street approximately 280 feet 

from Petitioner’s house, near the residence of Mary Jackson. Jackson was working 

in the yard with her son, Levoy Garner. Jackson and Garner testified that the men 

standing in front of Petitioner’s house stepped into the street and then shots were 

fired in the direction of the Monte Carlo, which then drove away. (10/18/05 Trial 

Tr. at 184-86, ECF 6-5; 10/21/05 Trial Tr. at 18, ECF 6-7.) Two stray bullets hit 

Isis Martin in the head, who was sitting on her front porch across the street from 

Jackson. 

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Jackson identified Petitioner as the individual who fired a handgun towards 

the Monte Carlo. (10/18/05 Trial Tr. at 193, ECF 6-5.) According to Jackson, 

Petitioner stood out from the rest of the group because he was wearing a black or 

dark-colored shirt and the other men were wearing white shirts. (Id. at 193.) 

Jackson testified that a few hours before the shooting, she drove past Petitioner’s 

house on her way home and noticed that he was wearing a black shirt and black 

pants. (Id. at 179.) 

Neither Martin nor Garner could identify the shooter, but both testified that 

the individual was wearing dark-colored clothing. (10/20/05 Trial Tr. at 19, 39, 

ECF 6-6; 10/21/05 Trial Tr. at 9, 21, ECF 6-7.) In addition, Officer Casey 

Crampton with the Pontiac Police Department testified that he responded to the 

dispatch call, and that when he arrived on Fisher Street he was flagged down by an 

individual who described the shooter as wearing a black shirt. (10/20/05 Trial Tr. 

at 101, ECF 6-6.) Another testifying witness, Cal Clark, did not see who fired the 

shots. (10/21/05 Trial Tr.at 56, ECF No. 6-7.) 

Deputy Robert Charlton, a crime scene investigator and firearm tool mark 

examiner with the Oakland County Sheriff’s Office, testified that five bullet 

casings were collected from the scene and tested. (10/20/05 Trial Tr. at 122-23, 

ECF 6-6.) Charlton, as an expert, concluded that all of the casings were fired from 

the same .25 caliber semi-automatic handgun. (Id.)

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 Justin Jones, the Petitioner’s only witness at trial, was eleven years old at the 

time of the shooting. Jones testified that there were two shooters among the group 

of men outside Petitioner’s house: one with a “big gun,” and one with a “little 

gun.” (Id. at 122.) Jones also recalled hearing only three gunshots. (Id. at 7-8.) 

The jury found Petitioner guilty as charged. (10/24/05 Trial Tr., ECF 6-8.) 

 In March 2006, Petitioner filed an appeal of right. On May 1, 2007, the 

Michigan Court of Appeals issued an unpublished opinion affirming Petitioner’s 

convictions. People v. Wilson, No. 269033, 2007 WL 1263988 (Mich. Ct. App. 

May 1, 2007). Petitioner filed an application for leave to appeal in the Michigan 

Supreme Court, which the Court denied on September 10, 2007. People v. Wilson, 

737 N.W.2d 745 (Mich. 2007). 

 On July 29, 2010, Petitioner filed a pro se motion for relief from judgment in 

the trial court, attaching an affidavit from Jackson in which she recanted her trial 

testimony. Jackson claimed that she only identified Petitioner as the shooter 

because officers had told her that he had confessed. The trial court appointed 

counsel for Petitioner, and an evidentiary hearing was held. Contrary to her trial 

testimony, Jackson testified at the hearing that she did not see who fired the shots, 

and that she identified Petitioner as the shooter because he was the only person in 

the group she recognized. 

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 The trial court rejected Jackson’s recanting testimony in its opinion denying 

Petitioner relief: 

After conducting an exhaustive evidentiary hearing in which Mary 

Jackson testified regarding the Recanting Allegations, based on the 

Court’s assessment of the credibility, demeanor, veracity, vocal tone 

and expression, tonality, and honesty of the witness, exhibits, and 

reasonable inferences of the same, the Court finds that the evidentiary 

hearing testimony and the Recanting Affidavit of Mary Jackson is 

inherently unreliable, incredible, and should possess no weight 

whatsoever. 

(6/1/11 Op. & Order at 7, ECF No. 6-16.) 

 Petitioner filed a delayed application for leave to appeal that decision in the 

Michigan Court of Appeals on June 1, 2012. He supported the application with 

additional affidavits. In the first affidavit, Christopher Stokes claimed he was one 

of the men in Petitioner’s group and that two other members of the group were the 

shooters. (5/30/12 Aff. at 25, ECF 6-33.) In a second affidavit, Wayne Wilson, 

Petitioner’s father, claimed that he informed Petitioner’s counsel about Stokes’ 

account prior to trial. (5/30/12 Aff. at 30, ECF 6-33.) 

 On February 22, 2013, the Michigan Court of Appeals denied Petitioner’s 

application. People v. Wilson, No. 310559 (Mich. Ct. App. Feb 22, 2013); (Order, 

ECF 6-19.) Petitioner filed an application for leave to appeal to the Michigan 

Supreme Court, which the Court denied on July 30, 2013. People v. Wilson, 834 

N.W. 2d 497 (Mich. 2013). 

 Petitioner filed the habeas petition now before this Court on July 28, 2014. 

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II. Discussion 

 Under the AEDPA, a one-year statute of limitations applies to an application 

for writ of habeas corpus by a person in custody pursuant to a judgment of a state 

court. The one-year limitations period runs 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. 

28 U.S.C. § 2244(d)(1). Absent tolling, a petition for writ of habeas corpus must 

be dismissed where it has not been filed before the limitations period expires. See

28 U.S.C. § 2244(d)(1); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). 

 In his response to Respondent’s motion for summary judgment, Petitioner 

does not dispute that the statute of limitations began to run for purposes of his 

habeas petition when his conviction “became final by the conclusion of direct 

review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). 

“Direct review,” for purposes of § 2244(d)(1)(A), concludes when the availability 

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of direct appeal to the state courts and to the United States Supreme Court has been 

exhausted. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The Michigan 

Supreme Court denied Petitioner’s application for leave to appeal on September 

10, 2007. The time for filing a petition for a writ of certiorari in the United States 

Supreme Court expired ninety days later, on December 9, 2007, with Petitioner not 

filing a petition. The limitations period began running the next day, and it expired 

one year later – years before the instant petition was filed. 

 The pendency of the proceedings with respect to Petitioner’s state postconviction motion from March 22, 2011 until September 3, 2013, did not toll the 

limitations period under § 2244(d)(2) because the limitations period had already 

expired when Petitioner filed his post-conviction motion. The filing for state postconviction review does not reset the limitations period. Payton v. Brigano, 256 

F.3d 405, 408 (6th Cir. 2001). 

 Petitioner does not dispute these calculations in his response to 

Respondent’s motion. Rather, Petitioner asserts he is entitled to equitable tolling 

because he is actually innocent as demonstrated in Jackson’s recanting testimony 

and Stokes’ affidavit. Both the United States Supreme Court and the United States 

Court of Appeals for the Sixth Circuit have held that a credible claim of actual 

innocence may equitably toll the one-year statute of limitations. McQuiggin v. 

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Perkins, -- U.S. --, 133 S. Ct. 1924, 1928 (2013); Souter v. Jones, 395 F.3d 577, 

588-90 (6th Cir. 2005). 

“To establish actual innocence, [a] petitioner must demonstrate that, ‘in light 

of all the evidence,’ it is more likely than not that no reasonable juror would have 

convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting 

Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also House v. Bell, 547 U.S. 

518, 537-39 (2006). Furthermore, a credible claim of actual innocence “requires 

[a] petitioner to support his allegations of constitutional error with new reliable 

evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness 

account, or critical physical evidence – that was not presented at trial.” Souter, 385 

F. 3d at 590; Schlup, 513 U.S. at 324. “[A]ctual innocence means factual 

innocence, not mere legal insufficiency.” Souter, 385 F. 3d at 590; Bousley, 523 

U.S. at 623. Factual innocence may also be established by a credible declaration of 

guilt by another. See Sawyer v. Whitley, 505 U.S. 333,340 (1992); Pitts v. Norris, 

85 F.3d 348, 350-51 (8th Cir. 1996). In keeping with Supreme Court authority, the 

Sixth Circuit has recognized that the actual innocence exception should “remain 

rare” and “only be applied in the ‘extraordinary case.’ ” Souter, 395 F.3d at 590 

(quoting Schlup, 513 U.S. at 321). 

 Jackson’s recantation testimony does not demonstrate Petitioner’s innocence 

under this standard because the state court found it to be false. Pursuant to 28 

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U.S.C. § 2254(e)(1), a determination of a factual issue made by a state court is 

presumed correct unless rebutted by clear and convincing evidence. McAdoo v. 

Elo, 365 F.3d 487, 493-94 (6th Cir. 2004); Mitchell v. Mason, 325 F.3d 732, 737-

38 (6th Cir. 2003). The presumption particularly applies to credibility 

determinations, as the Supreme Court has ruled that such determinations by a state 

court are entitled to “special deference” by the federal courts. Patton v. Yount, 467 

U.S. 1025, 1038 (1984); Brown v. Davis, 752 F.2d 1142, 1147 (6th Cir. 1985). 

The presumption of correctness applies to factual findings made by state courts 

with respect to actual-innocence claims. Sharpe v. Bell, 593 F.3d 372, 378 (4th 

Cir. 2010); Goldblum v. Klem, 510 F.3d 204, 212 n. 13 (3rd Cir. 2007). 

 The state trial court held an evidentiary hearing at which the veracity of 

Jackson’s recantation was tested. After the hearing, the trial court found Jackson’s 

new testimony and the statements in her affidavit not credible. Petitioner offers 

reasons why this Court should disagree with the trial court’s determination. He 

claims that her recantation testimony was more credible than her trial testimony 

because Jackson was too far away to firmly identify Petitioner, that Petitioner was 

in a group, that Jackson was inconsistent about details of the incident, that she 

disliked Petitioner’s family, and that the other eyewitnesses could not identify the 

shooter. These types of arguments, however, do not suffice to overcome the 

presumption of correctness afforded the trial court’s factual determination that 

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Jackson’s new testimony is untrue. See Rice v. Collins, 546 U.S. 333, 341-42 

(2006). “Reasonable minds reviewing the record might disagree . . . but on habeas 

review that does not suffice to supersede the trial court’s credibility 

determination.” Id. Therefore, Petitioner may not rely on Jackson’s recantation to 

support his claim of actual innocence. 

 Petitioner also points to Stokes’ affidavit to support his innocence claim. 

Stokes asserts he saw two other men shoot towards the Monte Carlo, and Petitioner 

was not armed. Petitioner’s father states he knew about Stokes’ information and 

told Petitioner’s trial attorney about Stokes before trial. These allegations, not 

presented to the state trial court, do not meet the standard for demonstrating actual 

innocence. A reasonable juror might question the credibility of witnesses known 

by and associated with Petitioner. See, e.g., McCray v. Vasbinder, 499 F.3d 568 

(6th Cir. 2007). 

Additionally, timing is a factor bearing on the reliability of Stokes’ affidavit. 

McQuiggin, 133 S. Ct. at 1936 (finding error in the court of appeals’ elimination of 

timing as a relevant factor in evaluating the reliability of a petitioner’s proof of 

innocence and holding that “[u]nexplained delay in presenting new evidence bears 

on the determination whether the petition has made the requisite showing.”). 

Courts “may consider how the timing of the submission and the likely credibility 

of the affiants bear on the probable reliability of that evidence.” Schlup, 513 U.S. 

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at 322. Here, Stokes did not sign his affidavit until May 30, 2012. Neither 

Petitioner nor Stokes offers a convincing explanation as to why it took more than 

six years after Petitioner’s conviction to present Stokes’ statement to a court. As 

such, Stokes’ new account of the shooting is not the type of evidence that 

establishes that “it is more likely than not that no reasonable juror would have 

convicted him.” Bousley, supra. 

III. Conclusion 

 For the reasons set forth above, the Court is granting Respondent’s motion 

for summary judgment, and dismissing the petition for writ of habeas corpus. 

Before Petitioner may appeal this decision, a certificate of appealability must issue. 

See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability 

may issue “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the 

merits, the substantial showing threshold is met if the petitioner demonstrates that 

reasonable jurists would find the court’s assessment of the claim debatable or 

wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies 

relief on procedural grounds without addressing the merits, a certificate of 

appealability should issue if it is shown that jurists of reason would find it 

debatable whether the petitioner states a valid claim of the denial of a 

constitutional right, and that jurists of reason would find it debatable whether the 

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district court was correct in its procedural ruling. Id. While the Court concludes 

that Petitioner’s habeas petition is untimely and that he is not entitled to equitable 

tolling, the Court believes that the issue of whether Petitioner is entitled to 

equitable tolling may be “debatable among jurists of reason.” The Court therefore 

is granting Petitioner a certificate of appealability with respect to that issue, only. 

 Accordingly, 

IT IS ORDERED, that Respondent’s motion for summary judgment is 

GRANTED; 

IT IS FURTHER ORDERED, that Petitioner’s application for the writ of 

habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED;

IT IS FURTHER ORDERED, that a certificate of appealability is 

GRANTED with respect to the issue of whether Petitioner is entitled to equitable 

tolling. 

 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: June 30, 2015 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, June 30, 2015, by electronic and/or U.S. 

First Class mail. 

 s/ Richard Loury 

 Case Manager 

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