UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

JERMAINE KEITH, 

Petitioner, 

 Case No. 14-13340 

v. HON. TERRENCE G. BERG 

CARMEN PALMER, 

Respondent. 

 / 

OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR 

SUMMARY JUDGMENT (DKT. 8), DENYING PETITIONER’S MOTION TO 

STAY (DKT 3), AND DENYING CERTIFICATE OF APPEALABILITY 

 Michigan state prisoner Jermaine Keith has filed a petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is in the custody of the 

Michigan Department of Corrections pursuant to convictions for assault with intent 

to commit murder, four counts of felonious assault, and possession of a firearm 

during the commission of a felony. Respondent moves for summary judgment on 

the ground that the petition is untimely. For the reasons explained below, the 

Court finds that the petition is untimely. As a result, Respondent’s motion for 

summary judgment (Dkt. 8) is GRANTED and Petitioner’s motion to stay (Dkt. 3) 

is DENIED. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

 Petitioner’s convictions arise from a shooting that occurred in the City of 

Detroit on November 4, 2006. The Court summarizes the facts based on its review 

of the trial transcript, as well as the recitation of facts presented in the decision by 

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the Michigan Court of Appeals. On the evening of November 4, 2006, Tammy 

Robinson visited her sister at her sister’s home located on 13400 Lauder Street in 

the City of Detroit. (Dkt. 9, Ex. 3, p. 12.) Ms. Robinson’s brothers and nieces were 

also present. At some point, Petitioner arrived at the home and got into a physical 

altercation with Ms. Robinson. (Id. at p. 14-19.) The fight escalated and resulted in 

Ms. Robinson slashing Petitioner’s face with a knife. (Id.) Following this fight, 

Petitioner threatened that he would come back and shoot and kill Ms. Robinson. 

(Id. at 21.) 

 At trial, Ms. Robinson testified that her brother-in-law told her and her 

siblings to get the children out of the house in case Petitioner returned. (Id. at 24.) 

As they were attempting to leave, Ms. Robinson, her sister, and one of her brothers 

all testified that Petitioner returned and opened fire. (Dkt. 9, Ex. 3.) Ms. Robinson 

reported feeling a bullet passing by her head as she stood on the porch of the house 

holding one of her nieces. (Dkt. 9, Ex. 2, p. 19.) She then ran inside the home with 

her siblings and nieces as Petitioner continued shooting at the house. (Id. at 26-28.) 

Tammy Robinson’s account of the events was supported in part by the trial 

testimony of Officer Matthew Hernandez of the Detroit Police Department. Officer 

Hernandez testified that he responded to the victims’ 911 call on the night of the 

incident. (Dkt. 9, Ex. 3, p. 135.) He observed four bullet holes in the house, 

including two in the west dining room window and two in the south dining room 

window. (Id. at 140-41.) Shell casings were not recovered. (Id. at 148.) 

 

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 The Michigan Court of Appeals set forth the relevant facts as follows: 

[T]he evidence showed that defendant got into a fight with Tammy 

Robinson, following which, he specifically stated she was going to die 

and that he would come back and shoot her. Defendant left, returned 

with a gun, and started shooting. Tammy testified that defendant 

fired a shot at her while she was still on the porch. Her sister testified 

that defendant did not start shooting until she and Tammy had run 

inside, but also testified that defendant fired directly at them as they 

were running past the window. Tammy testified that she felt a bullet 

passing by her head. 

People v. Keith, No. 278573, 2008 WL 2938787, *1 (Mich. Ct. App. July 31, 2008). 

Following a bench trial in Wayne County Circuit Court, Petitioner was convicted 

and sentenced as follows: assault with intent to commit murder (16 to 25 years), 

four counts of felonious assault (1 to 4 years for each conviction), and felony firearm 

(2 years). He filed an appeal of right in the Michigan Court of Appeals. The 

Michigan Court of Appeals affirmed his convictions. People v. Keith, No. 278573, 

2008 WL 2938787 (Mich. Ct. App. July 31, 2008). Petitioner filed an application for 

leave to appeal in the Michigan Supreme Court. On November 25, 2008, the 

Michigan Supreme Court denied leave to appeal. People v. Keith, No. 137302, 482 

Mich. 1701 (Mich. Nov. 25, 2008). 

 On June 7, 2010, Petitioner filed a motion for relief from judgment in the 

trial court. The trial court denied the motion. 7/20/10 Order Denying Motion for 

Relief From Judgment, People v. Keith, No. 07-003986. The trial court denied a 

motion for reconsideration on August 17, 2010. Petitioner filed an application for 

leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals 

denied leave to appeal. People v. Keith, No. 302918 (Mich. Ct. App. June 20, 2011). 

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The Michigan Supreme Court also denied Petitioner’s application for leave to 

appeal. People v. Keith, 490 Mich. 969 (Mich. Dec. 28, 2011). 

 On July 9, 2012, Petitioner filed a second motion for relief from judgment in 

the trial court. The trial court denied the motion on September 26, 2012, and 

denied a subsequent motion for reconsideration on October 23, 2012. See 9/26/12

Opinion & Order Denying Defendant’s Second Motion for Relief from Judgment; 

10/23/12 Order Denying Motion for Reconsideration, People v. Keith, No. 07-003986. 

On August 29, 2013, the Michigan Court of Appeals dismissed Petitioner’s 

application for leave to appeal for lack of jurisdiction because, under Mich. Ct. R. 

6.502(G)(1), a defendant may not appeal the denial of a successive motion for relief 

from judgment. People v. Keith, No. 314129 (Mich. Ct. App. Aug. 29, 2013). 

 Petitioner filed a third motion for relief from judgment on October 1, 2013. 

The trial court denied the motion on December 17, 2013. See 12/17/13 Opinion and 

Order Denying Defendant’s Third Successive Motion for Relief from Judgment, 

People v. Keith, No. 07-003986. The Michigan Court of Appeals then dismissed 

Petitioner’s application for leave to appeal for lack of jurisdiction under Mich. Ct. R. 

6.502(G)(1). People v. Keith, 322582 (Mich. Ct. App. Aug. 11, 2014). Petitioner filed 

an application for leave to appeal in the Michigan Supreme Court. That application 

remains pending. 

 Petitioner filed this habeas corpus petition on August 27, 2014. 

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II. DISCUSSION 

 Respondent argues that the petition is barred by the one-year statute of 

limitations. A prisoner must file a federal habeas corpus petition within one year of 

the “date on which the judgment became final by the conclusion of direct review or 

the expiration of the time for seeking such review . . . or the date on which the 

factual predicate of the claim or claims presented could have been discovered 

through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(A) & (D). The oneyear limitation period begins at the deadline for filing a petition for a writ of 

certiorari to the United States Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 

283 (6th Cir. 2000). In addition, the time during which a prisoner seeks state-court 

collateral review of a conviction does not count toward the limitation period. 28 

U.S.C. § 2244(d)(2); Ege v. Yukins, 485 F.3d 364, 371-72 (6th Cir. 2007). A properly 

filed application for state post-conviction relief, while tolling the limitation period, 

does not re-fresh the limitation period. Vroman v. Brigano, 346 F.3d 598, 602 (6th 

Cir. 2003). 

 Petitioner appealed his conviction first to the Michigan Court of Appeals, and 

then to the Michigan Supreme Court. The Michigan Supreme Court denied his 

application for leave to appeal on November 25, 2008. Petitioner had ninety days 

from that date to file a petition for writ of certiorari with the United States 

Supreme Court, which he did not do. Thus, his conviction became final on February 

23, 2009, when the time period for seeking certiorari expired. Bronaugh, 235 F.3d 

at 283 (one-year statute of limitations does not begin to run until the time for filing 

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a petition for a writ of certiorari for direct review in the United States Supreme 

Court has expired). The last day on which a petitioner can file a petition for a writ 

of certiorari in the United States Supreme Court is not counted toward the one-year 

limitations period applicable to habeas corpus petitions. Id. at 285. Accordingly, 

the limitations period commenced on February 24, 2009, and continued to run 

uninterrupted until it expired one year later, February 24, 2010. 

 Petitioner’s motions for relief from judgment did not toll the limitations 

period. The first motion for relief from judgment was filed on June 7, 2010, over 

three months after the limitations period already expired. Vroman, 346 F.3d at 602 

(6th Cir. 2003) (holding that the filing of a motion for collateral review in state court 

serves to “pause” the clock, not restart it). Absent equitable tolling of the 

limitations period, the petition is untimely. 

 Equitable tolling is available to toll a statute of limitations when “‘a litigant’s 

failure to meet a legally-mandated deadline unavoidably arose from circumstances 

beyond that litigant’s control.’” Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 

2010) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 

F.3d 552, 560-61 (6th Cir. 2000)). The one-year limitations period applicable to § 

2254 is “subject to equitable tolling in appropriate cases.” See Holland v. Florida, 

560 U.S. 631, 645 (2010). To be entitled to equitable tolling, a petitioner 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.” Lawrence v. Florida, 

549 U.S. 327, 336 (2007), quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A 

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claim of actual innocence may also justify equitable tolling in certain circumstances. 

Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005). A petitioner bears the burden of 

showing that he is entitled to equitable tolling. Robertson, 624 F.3d at 784. 

 Petitioner has not filed a response to Respondent’s motion, but does claim 

actual innocence in his petition. A credible claim of actual innocence may equitably 

toll the one-year statute of limitations. See Souter v. Jones, 395 F.3d 577, 588-90 

(6th Cir. 2005). To determine whether a petitioner has satisfied the requirements 

for establishing a cognizable claim of actual innocence to warrant equitable tolling, 

the court applies “the same actual innocence standard developed in Schlup v. Delo, 

513 U.S. 298, 115 S. Ct. 851 (1995), for reviewing a federal habeas applicant’s 

procedurally defaulted claim.” McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 

2007) (citing Souter, 395 F.3d at 596.) A valid 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. Because such evidence is 

obviously unavailable in the vast majority of cases, claims of 

actual innocence are rarely successful. 

 

Schlup, 513 U.S. at 324. “The Schlup standard is demanding and permits review 

only in the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006) (citation 

omitted). A court presented with new evidence must consider it in light of “all the 

evidence, old and new, incriminating and exculpatory, without regard to whether it 

would necessarily be admitted under rules of admissibility that would govern at 

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trial.” Id., 547 U.S. at 538 (citation omitted). “Based on this total record, the court 

must make ‘a probabilistic determination about what reasonable, properly 

instructed jurors would do.’” Id. (quoting Schlup, 513 U.S. at 329). This standard 

does not require absolute certainty about the petitioner’s guilt or innocence: 

A petitioner’s burden at the gateway stage is to demonstrate that more 

likely than not, in light of the new evidence, no reasonable juror

would find him guilty beyond a reasonable doubt – or, to remove the 

double negative, that more likely than not any reasonable juror would 

have reasonable doubt. 

House, 547 U.S. at 538 (emphasis added). 

 Petitioner presents four affidavits he claims are newly-discovered evidence 

establishing his actual innocence. The first is an affidavit from James Porter, dated 

January 27, 2011. Porter states that he witnessed the shooting outside Tammy 

Robinson’s house on November 4, 2006. He identifies Christopher Clemens as the 

shooter, and states that Petitioner was not outside the home when the shots were 

fired. Porter states that he did not come forward sooner because he was unaware 

that Petitioner had been convicted of this crime until he and Petitioner were 

incarcerated together at the Richard A. Handlon Correctional Facility. Porter’s 

affidavit does not represent the type of credible evidence leading to the conclusion 

that it is more likely than not that no reasonable trier of fact would have voted for 

conviction had they heard this evidence. Porter was incarcerated with Petitioner 

and such jailhouse affidavits are regarded with extreme suspicion. See Carter v 

Mitchell, 443 F.3d 517, 539 (6th Cir. 2006). Porter’s affidavit is executed more than 

four years after the crimes occurred. Further, Petitioner did not diligently seek 

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relief after obtaining the affidavit. A prisoner who presents a convincing actualinnocence claim does not have to “prove diligence to cross a federal court’s 

threshold,” but timing is “a factor relevant in evaluating the reliability of a 

petitioner’s proof of innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1935 (2013). 

As the Court stated in McQuiggin, 

To invoke the miscarriage of justice exception to AEDPA's statute 

of limitations, we repeat, a petitioner “must show that it is more 

likely than not that no reasonable juror would have convicted him 

in the light of the new evidence.” Schlup, 513 U.S., at 327, 115 

S.Ct. 851. Unexplained delay in presenting new evidence bears 

on the determination whether the petitioner has made the 

requisite showing...As we stated in Schlup, “a court may consider 

how the timing of the submission and the likely credibility of a 

petitioner's affiants bear on the probable reliability of ... evidence 

of actual innocence.” 

Id. (internal parentheticals omitted). Here, Petitioner waited approximately 18 

months after Porter executed his affidavit to file a motion for relief from judgment 

raising this claim. After the trial court denied the motion, the Petitioner filed an 

application for leave to appeal in the Michigan Court of Appeals, which was denied 

on August 29, 2013. Yet, Petitioner then waited a year to file his habeas corpus 

petition. 

 The second affidavit is executed by Damone Williams and dated November 

28, 2010. Williams’ affidavit is also not the type of reliable evidence that would 

establish Petitioner’s actual innocence. He states that he witnessed the altercation 

inside the home between Tammy Robinson and Petitioner. He saw Petitioner leave 

the house after he was cut on the face by Robinson and states that Petitioner did 

not return to the home at any point in time. Williams’ affidavit contains no first4:14-cv-13340-TGB-MJH Doc # 10 Filed 03/31/15 Pg 9 of 13 Pg ID 1161
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hand knowledge of the shooting. He states Petitioner was not the shooter and did 

not return to the home, but makes no claim that he witnessed the shooting or saw 

the shooter. The affidavit, therefore, presents no exculpatory evidence. 

 Dujuan Fletcher’s February 29, 2012 affidavit states that he witnessed the 

shooting and Petitioner was not the shooter. Although the content of Fletcher’s 

affidavit is exculpatory, the circumstances surrounding the affidavit render its 

credibility suspect. Fletcher’s affidavit was executed over five years after the 

shooting occurred. Fletcher provides no explanation for the delay or how he 

ultimately came to provide an affidavit. Given these shortcomings, Fletcher’s 

affidavit is insufficient to show that no reasonable juror would have convicted him 

in light of this evidence. 

 The fourth affidavit is that of Glen Davis. It is dated November 21, 2010. 

Davis claims to have been present for the argument between Robinson and 

Petitioner. He witnessed Robinson cut Petitioner’s face. He states that he then 

drove Petitioner to the hospital, where Petitioner told medical staff his name was 

Glen Davis. Davis further states that neither he nor Petitioner returned to the 

scene of the shooting at any time that night. Several factors call into question the 

credibility of Davis’s statement. Davis waited four years after the crime to execute 

an affidavit, despite being aware of Petitioner’s trial and conviction. Petitioner 

obviously knew of Davis’s purported ability to provide an alibi, but did not mention 

Davis on direct appeal or in his first motion for relief from judgment. Further, at 

trial Petitioner assented to his counsel’s strategic decision not to call Damone 

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Williams and Glen Davis as witnesses. (Dkt. 9, Ex. 4, p. 19) (Where Petitioner’s 

counsel stated on the record that she would not be calling them as witnesses based 

upon a “strategic standpoint.”). Because Petitioner purportedly used Davis’s name 

at the hospital, the medical records fail to support Petitioner’s presence at the 

hospital and call into question Davis’s veracity. 

 The Court finds that Petitioner's claim of actual innocence is insufficient to 

satisfy the demanding actual innocence standard. The affidavits all have 

significant credibility problems and fall far short of convincing the Court that, in 

light of these affidavits, when considered in light of all the evidence presented at 

trial, it is “more likely than not any reasonable juror would have reasonable doubt.” 

House, 547 U.S. at 538. It is clear that the evidence presented by Petitioner, when 

considered against the evidence adduced at trial, fails to “show that it is more likely 

than not that no reasonable juror would have convicted him in the light of the new 

evidence.” Schlup, 513 U.S., at 327, 115 S.Ct. 851. Equitable tolling is not 

warranted and the petition is untimely. 

III. CERTIFICATE OF APPEALABILITY

 A certificate of appealability may be issued “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

“The district court must issue or deny a certificate of appealability when it enters a 

final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a). 

 When a district court denies a habeas petition on procedural grounds without 

reaching the prisoner’s underlying constitutional claims, a certificate of 

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appealability should issue, and an appeal of the district court’s order may be taken, 

if the petitioner shows 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 district court was correct in its 

procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 

procedural bar is present and the district court is correct to invoke it to dispose of 

the case, a reasonable jurist could not conclude either that the district court erred in 

dismissing the petition or that the petitioner should be allowed to proceed further.” 

Id. In such a circumstance, no appeal is warranted. Id.

 The Court declines to issue Petitioner a certificate of appealability, because 

reasonable jurists would not find it debatable whether this Court was correct in 

determining that Petitioner filed his habeas petition outside of the one-year 

limitations period and equitable tolling is not warranted. 

IV. MOTION TO STAY 

 Also before the Court is Petitioner’s Motion to Stay Habeas Proceedings and 

Hold Petition in Abeyance. Petitioner asks for a stay so that he may exhaust a 

claim in state court. A federal court may stay a federal habeas petition and hold 

further proceedings in abeyance pending resolution of state court post-conviction 

proceedings if outright dismissal of a habeas petition would jeopardize the 

timeliness of a future petition, there is good cause for the petitioner’s failure to 

exhaust those claims, the unexhausted claims are not “plainly meritless,” and 

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“there is no indication that the petitioner engaged in intentionally dilatory litigation 

tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005). 

 In this case, there is no need to protect Petitioner from the expiration of the 

limitations period if the petition is dismissed outright to allow for exhaustion 

because the limitations period already has expired. Therefore, no stay is warranted 

under Rhines. 

V. CONCLUSION 

 For the reasons explained above, IT IS ORDERED that Respondent’s 

“Motion for Summary Judgment” (Dkt. 8) is GRANTED, and Petitioner’s “Petition 

for Writ of Habeas Corpus” (Dkt. 1) is DISMISSED WITH PREJUDICE. 

IT IS FURTHER ORDERED that the Court DECLINES to issue 

Petitioner a certificate of appealability. 

 Moreover, Petitioner’s “Motion to Stay Habeas Proceedings and Hold Petition 

in Abeyance” (Dkt. 3) is DENIED.

SO ORDERED. 

Dated: March 31, 2015 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on March 31, 

2015, using the CM/ECF system; a copy of this Order was also mailed to the Alger 

Correctional Facility, located at N6141 Industrial Park Drive, Munising, MI 49862, 

directed to Plaintiff’s attention. 

 

 s/A. Chubb 

Case Manager 

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