UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ORLANDO FLOWERS,

 

Petitioner, Case Number 2:15-cv-10225

 Honorable Nancy G. Edmunds

KENNETH ROMANOWSKI,

Respondent.

_____________________________________/

OPINION AND ORDER 1) DENYING PETITIONER’S MOTION FOR RELEASE

PENDING DECISION [Dkt. 2], 2) GRANTING PETITIONER’S MOTION TO CORRECT

PETITION [Dkt. 3], 3) GRANTING RESPONDENT’S MOTION FOR SUMMARY

JUDGMENT [Dkt. 10], 4) DISMISSING AMENDED PETITION FOR WRIT OF

HABEAS CORPUS, AND 5) DENYING CERTIFICATE OF APPEALABILITY

Orlando Flowers, (“Petitioner”), a Michigan Department of Corrections prisoner, filed

this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges

his Wayne Circuit Court convictions for one count of first-degree felony murder, MICH.

COMP. LAWS § 750.316(1)(b), two counts of armed robbery, MICH. COMP. LAWS § 750.529,

two counts of assault with intent to do great bodily harm less than murder , MICH. COMP.

LAWS § 750.84, and one count of possession of a firearm during the commission of a

felony. MICH. COMP. LAWS § 750.227b. Petitioner was sentenced to mandatory life

imprisonment for the murder conviction and lesser terms for his other convictions. The

amended petition raises a single substantive claim: Petitioner was denied the effective

assistance of counsel when his trial attorney misinformed him regarding whether a

suppressed statement he made to police could be used against him on cross examination. 

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

which he asks the Court to dismiss the petition as untimely. Petitioner filed a response to

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the motion, asserting that the petition was timely filed. The Court agrees with Respondent

and the case will be dismissed. 

I. Background

Petitioner was found guilty of the above offenses after a jury trial on November 30,

1998. Petitioner filed a direct appeal in the Michigan Court of Appeals, raising claims not

pertinent to this action. On February 27, 2001, the Michigan Court of Appeals affirmed

Petitioner’s convictions. People v. Flowers, No. 218593, 2001 WL 721328. (Mich. Ct. App.

Feb. 27, 2001). The Michigan Supreme Court subsequently denied Petitioner’s application

for leave to appeal on September 25, 2001. People v. Flowers, 635 N.W.2d 316 (Mich.

2001) (table). 

A little less than a year later, on September 20, 2002, Petitioner filed a motion for

relief from judgment in the trial court, asserting the claim that now forms the basis for this

action. The trial court granted the motion on March 2, 2007, ordered a new trial, and

released Petitioner on a pretrial bond pending the new trial.

The prosecutor filed an application for leave to appeal in the Michigan Court of

Appeals, challenging the trial court’s decision. On November 18, 2008, the Michigan Court

of Appeals issued an opinion reversing the trial court’s decision and reinstating Petitioner’s

conviction. People v. Flowers, No. 279219, 2008 WL 4927326 (Mich. Ct. App. Nov. 18,

2008).

On January 12, 2009, Petitioner filed an application for leave to appeal in the 

Michigan Supreme Court. On August 6, 2009, the Michigan Supreme Court denied the

application. People v. Flowers, 769 N.W.2d 656 (Mich. 2009) (table).

Bizarrely, Petitioner remained free on the pretrial bond granted by the trial court for

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approximately five more years, despite the fact that the order granting him a new trial had

been reversed. Neither Petitioner nor the prosecutor took further action until August 13,

2014, when the prosecutor finally moved to have Petitioner returned to the custody. The

motion was granted two days later and Petitioner was returned to prison to serve his

sentence.

Petitioner filed the instant habeas petition on January 21, 2015, raising the same

claim that he raised in his state post-conviction review proceeding.

II. Discussion

Summary judgment is proper where there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. In considering a motion for

summary judgment, the Court will construe all facts in a light most favorable to the

non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

There are no genuine issues of material fact when “the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party.” Id. If the movant carries its

burden of showing an absence of evidence to support a claim, then the nonmovant must

demonstrate by affidavits, depositions, answers to interrogatories and admissions that a

genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-325

(1986). This standard of review may be applied to habeas proceedings. See Redmond v.

Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a

one-year period of limitation for a habeas petition filed by a state prisoner seeking habeas

relief from a state court judgment. 28 U.S.C. § 2244(d)(1). The limitation runs from one of

four specified dates, usually either the day when the judgment becomes final by the

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conclusion of direct review or the day when the time for seeking such review expires. 28

U.S.C. § 2244(d)(1)(A). The limitation period is tolled while “a properly filed application for

State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).

The limitation period began to run in this action when Petitioner’s conviction “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). The Michigan Supreme Court denied relief on Petitioner’s

direct review on September 25, 2001. Because of weekends and federal holidays, the

limitations period began running ninety-four days later, on December 27, 2001, the day

after the deadline passed for filing a petition for a writ of certiorari in the U.S. Supreme

Court. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009); FRCP 6(a)(1)(C). 

The limitations period continued to run until Petitioner filed his motion for relief from

judgment in the trial court on September 20, 2002. See 28 U.S.C. § 2244(d)(2). That is, 267

days ran on the limitations period between the expiration of time for seeking direct review

and Petitioner filing his state petition for post-conviction review. 

The limitations period was tolled under § 2244(d)(2) from the time Petitioner filed his

state post-conviction review proceeding until the date relief was ultimately denied by the

Michigan Supreme Court on August 6, 2009. See Carey v. Saffold, 536 U.S. 214, 219-20

(2002). It should be noted that the state court proceeding merely tolled the limitations

period, it did not restart the one-year clock. See McMurray v. Scutt, 136 F. App’x 815, 817

(6th Cir. 2005) (citing Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)). The

limitations period starting running again the day after the Michigan Supreme Court denied

relief, August 7, 2009, and it continued running until Petitioner commenced the present

action by signing his habeas petition and placing it in the prison mail system on January

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21, 2015, a period of 1,994 days. 

Adding the two periods together in which the statute of limitations ran, 2,261 days–a

period of over six years–passed before Petitioner commenced this action. The petition was

therefore untimely filed under the terms of the statute. 

Petitioner’s response to the motion for summary judgment challenges this analysis

in three ways. First, Petitioner asserts that when the trial court set aside his conviction,

granted him a new trial, and released him on pretrial bond, this reset the limitations period

and it did not begin to run again until he was returned to custody in August of 2014.

Second, Petitioner asserts that he is entitled to equitable tolling because he acted with

reasonable diligence in pursuing relief after the he was returned to prison. Essentially,

Petitioner asserts that he had no cause to pursue relief during the period that he was free

on bond because the prosecutor ignored the Michigan Court of Appeals order reinstating

his sentence. Last, Petitioner asserts that he is actually innocent. 

Turning to Petitioner’s first argument, no new judgment of sentence was entered in

August of 2014 that might act to create a new starting point for the statute of limitations

under §2244(d)(1)(A). Rather, and quite simply, Petitioner’s original conviction and

sentence was reinstated by virtue of the reversal of the trial court’s order granting him a

new trial. After the Michigan Supreme Court denied Petitioner’s application for leave to

appeal, he no longer had a state post-conviction proceeding pending to toll the limitations

period. The fact that he was not physically in prison but free on bond does not alter the fact

that he was a person “in custody pursuant to the judgment of a state court” and thus

subject to the statute of limitations. §2244(d)(1); Hensley v. Municipal Court, 411 U.S. 345,

348–51 (1973) (holding that petitioner who was released on his own recognizance pending

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his appeal was in custody for purposes of habeas jurisdiction). 

Next, Petitioner asserts that he is entitled to equitable tolling because the prosecutor

sat on his rights and waited approximately five years to move to cancel Petitioner’s bond

after his conviction was reinstated. The AEDPA limitation is subject to equitable tolling in

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

equitable tolling if he shows “‘(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 649

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 

The equities do not line-up in Petitioner’s favor. Petitioner obtained an order granting

him a new trial and release on bond from the trial court. But after the prosecutor’s appeal,

that decision was reversed. Petitioner was then placed back in the position of a person

facing a life-sentence. But oddly, neither the prosecutor nor the trial court took any action

to enforce Petitioner’s reinstated sentence. Thus, Petitioner found himself in a precarious

but fortunate situation: he was sentenced to serve life in prison, but the state had

apparently neglected to cancel his bond. Obviously, filing a petition for a writ of habeas

corpus in federal court might have been exactly the type of action that would have alerted

the state to its oversight and hastened his return to prison. So one can understand why

Petitioner did nothing to challenge the Michigan Court of Appeals’ decision in federal court.

But this is just another way of saying that Petitioner sat on his rights to enjoy the benefits

of his unwarranted freedom from incarceration. Petitioner’s good fortune is not the type of

“extraordinary circumstance” that prevented him from filing his petition. Rather, it

constituted a calculated gamble on his part to elongate his freedom from incarceration for

as long as possible. In other words, Petitioner was anything by diligent–he purposefully sat

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on his rights so as not to alter the status quo. Accordingly, the Court finds that Petitioner

is not entitled to equitable tolling. 

Lastly, Petitioner claims that he is actually innocent. His claim is based entirely upon

a statement made by the trial court when it granted him a new trial. The trial court stated,

“had I been the finder of fact, I would have not found you guilty. I believe then and I believe

now that you were a victim as well as those who lost their physical lives.” Tr. 8/15/2014, p.

5. 

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

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

298 (1995). McQuiggin v. Perkins, 133 S. Ct. 1924, 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 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 Shlup, because Petitioner has presented no new, reliable evidence to establish that he

was actually innocent of the crimes charged. See Ross v. Berghuis, 417 F. 3d 552, 556

(6th Cir. 2005). Petitioner’s reference to the trial court’s own view of the evidence presented

at trial is not “new reliable evidence” that is “so strong that a court cannot have confidence

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in the outcome” of his trial. See Connolly v. Howes, 304 Fed.Appx. 412, 419 (6th Cir. 2008).

Accordingly, the Court will grant Respondent’s motion for summary disposition and

dismiss the amended petition. 

Petitioner’s motion for release on bond pending resolution of his petition is therefore

denied as moot. 

III. Conclusion

Before Petitioner may appeal, 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 district court was correct in

its procedural ruling. Id. Having undertaken the requisite review, the court concludes that

jurists of reason would not debate the Court’s procedural ruling. A certificate of appealability

will therefore be denied.

IV. Order

For the foregoing reasons, IT IS ORDERED that Petitioner’s motion amend his

petition is GRANTED.

IT IS FURTHER ORDERED that Petitioner’s motion for release pending decision is

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DENIED.

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

GRANTED, and the amended petition is DISMISSED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

 s/ Nancy G. Edmunds 

 Honorable Nancy G. Edmunds

 United States District Judge 

Dated:July 23, 2015

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