UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RODNEY HARRIS,

Petitioner, 

v.

DAVID BERGH, 

Respondent. 

 /

Case Number: 2:15-CV-11122

HON. GEORGE CARAM STEEH

OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR

SUMMARY JUDGMENT, DISMISSING PETITION FOR WRIT OF HABEAS

CORPUS, AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Rodney Harris, a Michigan state prisoner currently incarcerated at the

Thumb Correctional Facility in Lapeer, Michigan, filed a pro se petition for a writ of

habeas corpus under 28 U.S.C. § 2254. He challenges his conviction for first-degree

premeditated murder, Mich. Comp. Laws § 750.316. Respondent has filed a motion for

summary judgment, arguing that the petition should be denied because it is untimely. 

For the reasons stated herein, the Court finds the petition for a writ of habeas corpus is

untimely and grants the Respondent’s motion. The Court also declines to issue

Petitioner a certificate of appealability, and grants him leave to proceed on appeal in

forma pauperis. 

I. Background

Petitioner was convicted by a jury in Oakland County Circuit Court of first-degree

premeditated murder. On November 9, 1992, he was sentenced to life in prison. 

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Petitioner filed a timely claim of appeal in the Michigan Court of Appeals, but the

Michigan Court of Appeals dismissed the appeal for lack of prosecution because

Petitioner’s attorney failed to file a timely appellate brief. See People v. Harris, No.

159431 (Mich. Ct. App. Oct. 10, 1994) (ECF No. 12-25). After several unsuccessful

attempts in state court to restart the time for filing a timely direct appeal, Petitioner filed

a petition for a writ of habeas corpus in this Court. The Court granted a conditional writ

of habeas corpus, ordering the State to release Petitioner unless appointed counsel

was provided for Petitioner and his appeal of right in the Michigan Court of Appeals was

reinstated within sixty days. Harris v. Booker, No. 07-13250, 2008 WL 2999155 (E.D.

Mich. Aug. 1, 2008), amended by Harris v. Booker, No. 07-13250, 2008 WL 3852244

(E.D. Mich. Aug. 18, 2008). 

In accordance with the Court’s order granting a conditional writ, the State court

appointed counsel for Petitioner and reinstated his appeal of right. He raised these

claims: (i) gruesome photographs of the victim at the scene and of the autopsy were

improperly admitted; (ii) Petitioner was denied his right of confrontation; (iii) Petitioner

was denied his right to present a defense; and (iv) insufficient evidence was presented

to sustain the conviction. The Michigan Court of Appeals affirmed Petitioner’s

convictions. People v. Harris, No. 287724, 2010 WL 2925380 (Mich. Ct. App. July 27,

2010). Petitioner filed an application for leave to appeal in the Michigan Supreme

Court. On December 20, 2010, the Michigan Supreme Court denied leave to appeal. 

People v. Harris, 488 Mich. 996 (Mich. 2010). The Michigan Supreme Court denied

Petitioner’s subsequent motion for reconsideration. People v. Harris, 488 Mich. 1052

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(Mich. March 8, 2011).

On May 25, 2012, Petitioner filed a motion for relief from judgment in the trial

court. The trial court denied the motion. 3/25/15 Order, ECF No. 12-33. The Michigan

Court of Appeals denied Petitioner’s application for leave to appeal. People v. Harris,

No. 318352 (Mich. Ct. App. March 6, 2014). Petitioner then filed an application for

leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court denied

leave to appeal on February 3, 2015. People v. Harris, 497 Mich. 951 (Mich. 2015). 

Petitioner filed the pending habeas petition on March 23, 2015. Respondent has filed a

motion for summary judgment on the ground the petition was not timely filed. 

II. Discussion

A.

A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence

of a genuine issue of material fact for trial. The Court must view the evidence and draw

all reasonable inferences in favor of the non-moving party, and determine “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

The party bringing the summary judgment motion has the initial burden of

informing the district court of the basis for its motion and identifying portions of the

record which demonstrate the absence of a genuine dispute over material facts. Mt.

Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th

Cir. 2002). The party opposing the motion then may not “rely on the hope that the trier

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of fact will disbelieve the movant’s denial of a disputed fact” but must make an

affirmative showing with proper evidence in order to defeat the motion. Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for

summary judgment must designate specific facts in affidavits, depositions, or other

factual material showing “evidence on which the jury could reasonably find for the

plaintiff.” Anderson, 477 U.S. at 252. If the non-moving party, after sufficient

opportunity for discovery, is unable to meet his or her burden of proof, summary

judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

B.

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 one-year limitation

period begins at the expiration of 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).

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After his appeal of right was reinstated, 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 December 20, 2010, and

denied a motion for reconsideration on March 8, 2011. Petitioner had ninety days from

the denial of his motion for reconsideration 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 June 6, 2011, when the time period for seeking certiorari expired. Bronaugh v. Ohio,

235 F.3d 280, 283 (6th Cir. 2000) (one-year statute of limitations does not begin to run

until the time for filing 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 June 7, 2011, and continued to run

until Petitioner filed a motion for relief from judgment in the trial court on May 25, 2012. 

That motion, a properly filed motion for state-court collateral review, tolled the

limitations period with 12 days remaining. See 28 U.S.C. § 2244(d)(2). The limitations

period resumed running on February 4, 2015, the day after the Michigan Supreme

Court denied Petitioner’s application for leave to appeal. The limitations period

continued running until it expired on February 16, 2015. The petition was filed on

March 23, 2015, over one month after the limitations period expired. 

Petitioner argues that the limitations period should be equitably tolled because

he did not receive notice of the Michigan Supreme Court’s February 3, 2015 order

denying his application for leave to appeal until February 27, 2015, after the limitations

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period already expired. 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.” Holland v. Florida, 560 U.S.

631, 649 (2010) (quotation omitted). A 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. 

Lack of notice of a state court decision can justify equitable tolling of the

limitations period. Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002). Here, however,

Petitioner provides no support for his claim that he did not received notice of the

Michigan Supreme Court’s order until February 27, 2015. In addition, Petitioner waited

almost one month from the date he received notice of the decision to file his habeas

corpus proceeding. The claims raised in the petition are the same as those raised on

direct appeal and collateral review. The petition essentially combines the briefs

submitted on direct appeal. Thus, Petitioner was not delayed by the need to research

and draft a petition raising new claims. Even assuming that Petitioner did not promptly

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receive the state court’s order, he failed to act promptly once he did. He was required

to act with due diligence to pursue federal habeas review and he did not. Accordingly,

he is not entitled to equitable tolling on this basis. 

Petitioner alternatively argues that his petition is not barred by the statute of

limitations on the ground that he is actually innocent. 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.” 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 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). 

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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. 

To support his claim of actual innocence, Petitioner rehashes the evidence

presented at trial and argues that if certain errors had not been made the result of the

proceeding would have been different. Petitioner fails to present any new evidence to

support his argument. His claim of actual innocence falls far short of that required to

excuse the failure to timely file his habeas petition. 

III. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not

proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. A

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

order adverse to the applicant. . . . If the court issues a certificate, the court must state

the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 

Rule 11, Rules Governing Section 2255 Proceedings. 

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). 

Courts must either issue a certificate of appealability indicating which issues satisfy the

required showing or provide reasons why such a certificate should not issue. 28 U.S.C.

§ 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306,

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1307 (6th Cir. 1997). To receive a certificate of appealability, “a petitioner must show

that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003) (internal quotes and citations omitted).

In this case, the Court concludes that reasonable jurists would not debate the

Court’s conclusion that the petition is untimely. Therefore, the Court denies a certificate

of appealability.

IV. Conclusion

The Court finds that Petitioner failed to file his habeas petition within the

applicable one-year limitations period. Accordingly, the Court GRANTS Respondent’s

Motion for Summary Judgment (ECF No. 8) and the petition for a writ of habeas corpus

is DISMISSED. The Court DENIES a certificate of appealability. If Petitioner chooses

to appeal the Court's decision, he may proceed in forma pauperis on appeal because

an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).

Dated: March 24, 2016

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

March 24, 2016, by electronic and/or ordinary mail and also on

Rodney Harris #227942, Thumb Correctional Facility,

3225 John Conley Dr., Lapeer, MI 48446.

s/Barbara Radke

Deputy Clerk

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