UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNY ALLEN MEADOR,

Petitioner, Civil No. 5:14-12760

HONORABLE JOHN CORBETT O’MEARA

v. UNITED STATES DISTRICT JUDGE

PAUL KLEE, 

Respondent,

 /

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR

WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE

OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Kenny Allen Meador, (“petitioner”), incarcerated at the Chippewa Correctional

Facility in Kincheloe, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. §

2254. In his pro se application, petitioner challenges his convictions for conducting a

criminal enterprise, M.C.L.A. 750.159i(1), two counts of first-degree home invasion,

M.C.L.A. 750.110a(2), three counts of receiving and concealing stolen property with a

value of $1,000 but less than $20,000, M.C.L.A. 750.535(3)(a), two counts of possession

of a firearm during the commission of a felony, M.C.L.A. 750.227b, and being a third

habitual offender, M.C.L.A. 769.11. Respondent has filed a motion to dismiss, arguing

that the petition was not timely filed in accordance with the statute of limitations

contained in 28 U.S.C. § 2244 (d)(1). Petitioner has filed a reply to the motion. For the

reasons stated below, the petition for a writ of habeas corpus is summarily dismissed. 

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I. Background 

Petitioner was convicted following a jury trial in the Saginaw County Circuit Court

in 2009. Direct review of petitioner’s convictions ended in the state courts on May 24,

2011, when the Michigan Supreme Court denied petitioner leave to appeal following the

affirmance of his conviction on his appeal of right by the Michigan Court of Appeals.

People v. Meador, 489 Mich. 935, 797 N.W.2d 630 (May 24, 2011). 

On January 27, 2012, petitioner signed and dated a petition for writ of habeas

corpus, which was filed with this Court on February 2, 2012. See Meador v. Rapelje,

5;12-CV-10460 (E.D. Mich.)(O’Meara, J.). Petitioner sought relief on the following

grounds, which he had exhausted on his direct appeal with the Michigan courts:

I. Whether the prosecutor deprived Mr. Meador of a fair trial by arguing that

he was of bad character and therefore guilty, alternatively, he was deprived of

the effective assistance of counsel based on his lawyer’s failure to object to

this misconduct.

II. Whether Offense Variable 19 was improperly scored resulting in an

inappropriately inflated sentencing guidelines range. Mr. Meador’s state and

federal constitutional due process rights to be sentenced based on accurate

information were thus denied. Further, trial counsel rendered ineffective

assistance in failing to object to the scoring of OV 19 on the grounds raised

herein. Mr. Meador is entitled to resentencing where the minimum term of

sentence imposed on him exceeds the correct guideline range.

Respondent filed an answer to the petition on August 6, 2012 asserting that it

should be denied for lack of merit. 

On September 18, 2012, petitioner signed and dated a motion to hold the petition

in abeyance so that he could return to the state courts to exhaust additional claims that

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were not contained in the instant petition. The motion was filed by the Court on

September 19, 2012. (5:12-CV-10460, Dkt. # 7). In his motion, petitioner indicated that

he wished to raise the following claims in the state courts:

I. Petitioner was arrested and detained in violation of Michigan law and U.S.

Const. Amend 4, 5, and 14, where he was arrested, detained, then transported

to police headquarters for interrogation with no warrant, no complaint, and no

felony committed before or after his arrest, he was then detained for 6 days

without being arraigned.

II. Petitioner, during the course of his pending criminal matters giving rise to

this action, was deprived of the effective assistance of trial and appellate

counsel at critical stages, as required by U.S. Const. 6, & 14, Michigan

Constitution 1963, art. 1, § 20 for the following reasons:

A. Counsel failed to protect Petitioner in all-pretrial matters which denied

petitioner’s right to a fair trial and compulsory process.

B. Counsel’s failure to object to prosecutorial misconduct and failed to object

to prosecution abusing their charging discretion.

C. Counsel failed to investigate all possibilities of Petitioner’s potential

defenses and challenges.

III. The prosecution violated Michigan Court Rule 6.201(A)(1), by amending

its witness list of 18 new witnesses five (5) days before trial. MCR

6.201(A)(1) states that all amended lists must be filed 28 days before trial. 

Denies petitioner’s counsel a chance to timely review said list and make any

challenges, denying petitioner a fair trial and due process constituting

prosecutorial misconduct in violation of U.S.C.A. 5 & 14. The prosecution

abused its charging discretion which renders all proceedings including trial,

fatally defective and containing both prosecutorial as well as structural error. 

IV. Offense Variables 2, 9, 13, 14, and 16 were incorrectly scored resulting

in an inappropriately inflated sentencing guideline range. The petitioner’s

state and federal constitutional rights to be sentenced based on accurate

information were denied. Further, trial counsel rendered ineffective assistance

in failing to object to the scoring of OV 2, 9, 13, 14, and 16 on the grounds

raised herein. Petitioner is entitled to resentencing where the minimum term

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of sentence imposed on him exceeds the correct guideline range.

On September 21, 2012, the Court denied the motion to stay and hold the petition

in abeyance on the ground that petitioner still had time remaining under the one year

limitations period to file a state post-conviction motion and return to the federal court. 

The Court gave petitioner thirty days to decide whether he wished to proceed only with

his exhausted claims or move for a non-prejudicial dismissal of his petition. Meador v.

Rapelje, No. 5:12-CV-10460, 2012 WL 4341063, at *1 (E.D. Mich. Sept. 21, 2012).

On October 17, 2012, petitioner moved to withdraw his petition without prejudice. 

On October 24, 2012, this Court summarily dismissed the petition without prejudice.

(5;12-CV-10460, Dkt. # 10). 

On December 17, 2012, petitioner filed a post-conviction motion for relief from

judgment with the Saginaw County Circuit Court. After the trial court and the Michigan

Court of Appeals denied petitioner post-conviction relief, collateral review of petitioner’s

conviction ended in the Michigan courts on June 24, 2014, when the Michigan Supreme

Court denied petitioner leave to appeal the denial of his post-conviction motion. People v.

Meador, 496 Mich. 859, 847 N.W. 2d 631 (June 24, 2014).

On June 29, 2014, petitioner filed the current petition for writ of habeas corpus. 1

In his current petition, petitioner seeks relief on the following grounds:

I. Defendant’s defense was unfairly prejudiced when the prosecutor added

1

 Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas petition on

June 29, 2014, the date that it was signed and dated. See Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999). The

Court applied the prison mailbox rule to all of petitioner’s filings in his earlier habeas petition. 

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several new names to its’ witness list a few days before trial, without leave of

the court or on good cause shown. Alternatively, trial counsel was ineffective

for failing to object to the introduction of those witnesses at trial, and for

failing to request a continuance so as to have an opportunity to investigate

them prior to trial.

II. The 144 hour delay between defendant’s detention after a warrantless

arrest, and his probable cause arraignment violated his Fourth Amendment

rights under the U.S. Constitution. Alternatively, his trial counsel was

ineffective for failing to object to the pre-arraignment delay, which resulted in

excludable evidence being admitted against defendant.

III. Appellate counsel’s decision not to raise the issues herein denied

defendant the effective assistance of counsel, satisfying the good cause an

actual prejudice strictures of MCR 6.508(D)(3)(a-b).

Respondent filed a motion to dismiss, arguing that these claims are barred by the

statute of limitations. Petitioner filed a reply to the motion to dismiss.

II. Discussion

Respondent has filed a motion to dismiss the petition for writ of habeas corpus on

the ground that the petition was not filed in compliance with the statute of limitations. In

the statute of limitations context, “dismissal is appropriate only if a complaint clearly

shows the claim is out of time.” Harris v. New York, 186 F.3d 243, 250 (2d Cir.1999);

See also Cooey v. Strickland, 479 F. 3d 412, 415-16 (6th Cir. 2007). 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”), which was signed

into law on April 24, 1996, amended the habeas corpus statute in several respects, one of

which was to mandate a statute of limitations for habeas actions. 28 U.S.C. § 2244(d)

imposes a one-year statute of limitations upon petitions for habeas relief:

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

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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 originally

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. 

Although not jurisdictional, the AEDPA’s one year limitations period “effectively

bars relief absent a showing that the petition’s untimeliness should be excused based on

equitable tolling and actual innocence.” See Akrawi v. Booker, 572 F. 3d 252, 260 (6th

Cir. 2009). A petition for writ of habeas corpus must be dismissed where it has not been

filed within the one year statute of limitations. See Holloway v. Jones, 166 F. Supp. 2d

1185, 1187 (E.D. Mich. 2001). A merits decision is unnecessary where a district court

denies a habeas petition on statute of limitations grounds. See Bachman v. Bagley, 487

F.3d 979, 982 (6th Cir. 2007). 

Petitioner’s direct appeal of his conviction ended when the Michigan Supreme

Court denied petitioner leave to appeal on May 24, 2011, following the affirmance of his

conviction by the Michigan Court of Appeals on direct review. Petitioner’s conviction

would become final, for the purposes of the AEDPA’s limitations period, on the date that

the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See

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Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Petitioner’s judgment therefore

became final on August 22, 2011, when he failed to file a petition for writ of certiorari

with the U.S. Supreme Court. Holloway, 166 F. Supp. 2d at 1188. Petitioner had until

August 22, 2012 to file his habeas petition in compliance with the one year limitations

period. 

Petitioner originally filed a habeas petition in Case # 12-CV-10460 on January 27,

2012, which was dismissed without prejudice on October 24, 2012.

Although a petition for federal habeas review is not “an application for state postconviction or other review” within the meaning of 28 U.S.C. § 2244(d)(2) that would toll

the one year statute of limitations period, See Duncan v. Walker, 533 U.S. 167, 181

(2001), Justice Stevens indicated in a concurring opinion that neither the Supreme Court’s

“narrow holding” in Duncan nor anything in the text or the legislative history of the

AEDPA would prevent a federal court from tolling the limitations period for a habeas

petition as “a matter of equity.” Id. at 183. 

The Sixth Circuit has indicated that a habeas petitioner is entitled to equitable

tolling of the limitations period during the time that his original habeas petition was filed

in the federal court, provided that the habeas petitioner filed his state post-conviction

motion with the state courts within thirty days of the federal court’s dismissal of the

original habeas petition and returned to federal court no later than thirty days after the

conclusion of state post-conviction review. See Griffin v. Rogers, 308 F. 3d 647, 653 (6th

Cir. 2002)(citing Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002)).

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Petitioner is not entitled to equitable tolling for the time that his first habeas

petition was pending in the federal district court, so as to delay the commencement of the

one year limitations period. Petitioner filed his motion for relief from judgment with the

trial court on December 17, 2012, some fifty four days after his first petition for writ of

habeas corpus was dismissed without prejudice. Because petitioner waited more than

thirty days following the dismissal of his first habeas petition to return to the state courts

to initiate post-conviction proceedings, he is not entitled to equitable tolling of the

limitations period during which his first petition was pending in this Court. 

Petitioner’s current petition was filed on June 29, 2014, long after the one year

limitations period had expired. The instant petition is untimely. Moreover, this current

petition cannot be considered as an amendment to petitioner’s 2012 habeas petition, so as

to relate back to the filing date of that first petition, because petitioner’s 2012 petition was

not pending when petitioner filed his current habeas petition. See Tucker v. Kingston, 538

F. 3d 732, 734 (7th Cir. 2008). 

Moreover, even if the Court could construe petitioner’s current habeas petition as

well as the motion to hold the petition in abeyance that petitioner filed in his 2012 petition

as motions to amend his original habeas petition, the current petition would still be

untimely because the claims contained in his current habeas petition or in the motion to

hold the petition in abeyance do not relate back to the claims raised in his earlier petition.

When a habeas petitioner files an original petition within the one-year deadline,

and later presents new claims in an amended petition that is filed after the deadline

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passes, the new claims will relate back to the date of the original petition only if the new

claims share a “common core of operative facts” with the original petition. Mayle v. Felix,

545 U.S. 644, 664 (2005). 

None of the claims that were raised by petitioner in either the motion to hold the

petition in abeyance, which was filed on September 18, 2012, after the expiration of the

one year limitations period, or in his current untimely petition share a common core of

operative facts with the claims raised in his original petition. In his original petition,

petitioner claimed that the prosecutor committed misconduct by arguing that petitioner

should be found guilty because of his bad character and that trial counsel was ineffective

for failing to object to this misconduct, and that his sentencing guidelines had been

incorrectly scored or that trial counsel had been ineffective for failing to object to the

scoring of the guidelines. In his current petition, petitioner argues that he was unfairly

prejudiced when the prosecutor added several new names to its witness list a few days

before trial without leave of the court or good cause shown and that his trial counsel was

ineffective for failing to object to the introduction of the witnesses at trial or for failing to

request a continuance so as to have an opportunity to investigate them prior to trial, that

the 144 hour delay in arraignment violated his Fourth Amendment rights and that counsel

was ineffective for failing to object to the delay in arraignment, and that appellate counsel

was ineffective for failing to raise these claims on his appeal of right. 

Although petitioner alleged ineffective assistance of counsel in his original habeas

petition, it involved counsel’s failure to object to the prosecutor’s use of petitioner’s bad

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character and for failing to object to the scoring of the sentencing guidelines. Petitioner’s

ineffective assistance of counsel claims that he raises in his current petition involve

allegations that trial counsel was ineffective for failing to object to the amendment of the

witness list or to request a continuance and for failing to object to the pre-arraignment

delay, and appellate counsel’s ineffectiveness for failing to raise the witness list, the delay

in arraignment and the related ineffective assistance of counsel claims on petitioner’s

direct appeal. 

Petitioner’s ineffective assistance of counsel claims that he raises in his current

habeas petition cannot relate back to the filing date of his original habeas petition,

because they do not share a common core of operative facts with the ineffective

assistance of counsel claims that he raised in the original habeas petition. See Eller v.

Bock, 422 F. Supp. 2d 813, 818 (E.D. Mich. 2006).

None of petitioner’s claims that he raised for the first time in his current habeas

petition share a “common core of operative facts” with the prosecutorial misconduct, the

sentencing guidelines, and the related ineffective assistance of counsel claims raised in

his timely filed original habeas petition. Because none of petitioner’s claims raised in his

current petition share a common core of operative facts with the claims raised in the

original petition, these claims are barred by the one year limitations period. See Pinchon

v. Myers, 615 F.3d 631, 643 (6th Cir. 2010). 2

2

 Even if the Court were to consider the motion to stay the petition that petitioner submitted on September

18, 2012 in Case # 5;12-CV-10460 as a request to amend the original petition to add these claims, these claims

would still be time-barred because petitioner’s motion to hold the petition in abeyance was filed after the one year

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The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate

cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A habeas petitioner is entitled to

equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way’” and prevented the timely

filing of the habeas petition. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). The Sixth Circuit has observed that “the doctrine of equitable tolling is used

sparingly by federal courts.” See Robertson v. Simpson, 624 F. 3d 781, 784 (6th Cir.

2010). The burden is on a habeas petitioner to show that he or she is entitled to the

equitable tolling of the one year limitations period. Id. Petitioner is not entitled to

equitable tolling of the one year limitations period, because he has failed to argue or show

that the circumstances of his case warranted equitable tolling. See Giles v. Wolfenbarger,

239 Fed. Appx. 145, 147 (6th Cir. 2007).

The one year statute of limitations may be equitably tolled based upon a credible

showing of actual innocence under the standard enunciated in Schup v. Delo, 513 U.S.

298 (1995). McQuiggin v. Perkins, 133 S. Ct. 192, 1928 (2013). The Supreme Court has

cautioned that “tenable actual-innocence gateway pleas are rare[.]” Id. “[A] petitioner

does not meet the threshold requirement unless he persuades the district court that, in

light of the new evidence, no juror, acting reasonably, would have voted to find him

guilty beyond a reasonable doubt.” Id. (quoting Schlup, 513 U.S. at 329). For an actual

limitations period expired on August 22, 2012. 

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innocence exception to be credible under Schlup, such a claim requires a habeas petitioner

to support his or her allegations of constitutional error “with new reliable

evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence--that was not presented at trial.” Schlup, 513 U.S. at 324.

Petitioner’s case falls outside of the actual innocence tolling exception enunciated

in Souter, because petitioner has presented no new, reliable evidence to establish that he

was actually innocent of the crime charged. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th

Cir. 2005). 

IV. Conclusion 

The Court will deny the petition for writ of habeas corpus. The Court will also

deny a certificate of appealability to petitioner. In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2). 

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

reaching the prisoner’s underlying constitutional claims, a certificate of 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). “The district court must issue or deny a certificate

of appealability when it enters a final order adverse to the applicant.” Rules Governing §

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2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.

The Court will deny petitioner a certificate of appealability, because reasonable

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

petitioner had filed his habeas petition outside of the one year limitations period. Grayson

v. Grayson, 185 F. Supp. 2d 747, 753 (E.D. Mich. 2002). The Court will also deny

petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Allen

v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).

V. ORDER

Accordingly, the Petition for Writ of Habeas Corpus is DENIED.

The Court further DENIES a certificate of appealability.

The Court further DENIES petitioner leave to appeal in forma pauperis.

s/John Corbett O’Meara 

United States District Judge

Date: February 26, 2015

I hereby certify that a copy of the foregoing document was served upon the parties

of record on this date, February 26, 2015, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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