Allen v. Yukins ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Allen v. Yukins No. 03-1078
ELECTRONIC CITATION: 2004 FED App. 114P (6th Cir.)
File Name: 04a114p.06 ATTORNEY GENERAL, CORRECTIONS DIVISION,
Lansing, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________
CHARMEL ALLEN, X RONALD LEE GILMAN, Circuit Judge. Petitioner
Charmel Allen, a Michigan state prisoner, appeals from the
Petitioner-Appellant, - district court’s dismissal of her petition for a writ of habeas
-
- No. 03-1078 corpus. The district court concluded that Allen’s petition was
v. - barred by the one-year statute of limitations imposed by the
> Antiterrorism and Effective Death Penalty Act (AEDPA).
, Allen contends that the district court erred in dismissing her
JOAN N. YUKINS, Warden, -
Respondent-Appellee. - petition. She first argues that her motion for state
postconviction relief, which claimed that her counsel on direct
N appeal had been constitutionally ineffective, should be
Appeal from the United States District Court considered part of the direct appeals process, thus delaying
for the Eastern District of Michigan at Detroit. the start of AEDPA’s statute of limitations. Alternatively,
No. 01-74002—Victoria A. Roberts, District Judge. Allen argues that even if her petition was untimely, the delay
should be excused either because she is entitled to equitable
Submitted: March 17, 2004 tolling or because she is actually innocent of the crime for
which she was convicted. For the reasons set forth below, we
Decided and Filed: April 20, 2004 AFFIRM the judgment of the district court.
Before: KRUPANSKY and GILMAN, Circuit Judges; I. BACKGROUND
RUSSELL, District Judge.*
A jury convicted Allen of both felony murder and assault
_________________ with the intent to commit murder on the basis of an incident
that occurred in September of 1990. The Michigan Court of
COUNSEL Appeals provided the following summary of the facts
underlying Allen’s conviction:
ON BRIEF: Craig A. Daly, Detroit, Michigan, for
Appellant. Debra M. Gagliardi, OFFICE OF THE Defendant lived in an apartment across the hall from
Brian Carson and Larry Wallace, who were roommates.
At trial, it was revealed that on the date in question,
defendant could not account for approximately $1,200 of
*
The Honorable Thomas B. Russell, United States District Judge for her ex-boyfriend’s money. Testimony revealed that this
the Western District of Kentucky, sitting by designation.
1
No. 03-1078 Allen v. Yukins 3 4 Allen v. Yukins No. 03-1078
money was derived from the illegal drug trade. The nolo contendere to the manslaughter charge or the resulting
prosecution theorized that defendant was fearful of the sentence.
probable consequences of her inability to locate the
missing funds and, thus, desperately plotted to recoup II. ANALYSIS
them. Hence, on the night in question, defendant,
accompanied by Anastasia [Allen, the defendant’s sister] A. Standard of review
and [Ronald] Light, forcibly entered Carson’s and
Wallace’s apartment and asked for money—Light This case is governed by AEDPA, codified principally at
possessed a firearm. A struggle ensued. Wallace died as 28 U.S.C. § 2254(d), because Allen filed her habeas petition
a result of being shot at close range, and Carson was in October of 2001, well after AEDPA’s effective date of
severely wounded. April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336
(1997). Under AEDPA, factual findings made by a state
The Michigan Court of Appeals vacated Allen’s conviction court are presumed correct unless the petitioner rebuts the
for felony murder in May of 1991, but affirmed her presumption with clear and convincing evidence. 28 U.S.C.
conviction for assault with the intent to commit murder. Both § 2254(e)(1). We review the district court’s decision to deny
the prosecution’s application for leave to appeal and Allen’s a writ of habeas corpus de novo. Gonzales v. Elo, 233 F.3d
application for leave to cross-appeal were subsequently 348, 352 (6th Cir. 2000).
denied by the Michigan Supreme Court.
B. Does a state postconviction motion claiming
On remand to the trial court, Allen pleaded nolo contendere ineffective assistance of appellate counsel restart
to a charge of manslaughter. The Michigan Court of Appeals AEDPA’s statute of limitations?
affirmed her manslaughter conviction and sentence on
September 23, 1997. Allen did not seek leave to appeal this AEDPA imposes a one-year statute of limitations for
decision to the Michigan Supreme Court. habeas petitions that challenge state-court judgments. The
relevant section provides as follows:
She later filed a motion for relief from judgment in the trial
court on September 28, 1998, seeking resentencing on the (1) A 1-year statute of limitations shall apply to an
assault charge. The trial court denied Allen’s motion. She application for a writ of habeas corpus by a person in
then filed a delayed application for leave to appeal, which was custody pursuant to the judgment of a State court. The
denied by both the Michigan Court of Appeals and the limitation period shall run from the latest of—
Michigan Supreme Court. The Michigan Supreme Court
denied Allen’s motion for reconsideration on October 30, (A) the date on which the judgment became final by
2000. the conclusion of direct review or the expiration of
time for seeking such review . . . .
Allen filed her petition for a writ of habeas corpus in the
district court almost a year later, on October 22, 2001. The 28 U.S.C. § 2244(d). AEDPA further provides, however, that
petition challenges the constitutionality of her conviction and the statute of limitations is tolled for “[t]he time during which
sentence on the assault charge. She does not, however, a properly filed application for State post-conviction or other
challenge the constitutionality of either the subsequent plea of collateral review with respect to the pertinent judgment or
claim is pending . . . .” 28 U.S.C. § 2244(d)(2).
No. 03-1078 Allen v. Yukins 5 6 Allen v. Yukins No. 03-1078
1. When did direct review of Allen’s assault If Allen’s conviction became final on November 18, 1997,
conviction conclude? then AEDPA’s statute of limitations would have begun
running the next day, November 19, 1997. See Fed. R. Civ.
The timeliness of Allen’s petition turns on when the P. 6 (“In computing any period of time prescribed or allowed
judgment in her state case became final, thereby starting by these rules, by the local rules of any district court, by order
AEDPA’s one-year limitations period. According to the of court, or by any applicable statute, the day of the act, event,
district court, the triggering event occurred when the or default from which the designated period of time begins to
Michigan Court of Appeals affirmed Allen’s manslaughter run shall not be included.”). The statutory period would then
conviction and sentence on September 23, 1997. The district have been tolled from the date that Allen filed her motion for
court reasoned that Allen’s conviction became final 56 days relief from judgment, September 28, 1998. See 28 U.S.C.
later, on November 18, 1997, when her time to appeal to the § 2244(d)(2). At that time, 51 days would have remained of
Michigan Supreme Court expired. See Michigan Court the one-year limitations period.
Rule 7.302(C)(2).
The state postconviction review process continued until
Although Allen’s brief is not clear on this point, she October 30, 2000, when the Michigan Supreme Court denied
appears to argue that her conviction was actually final much Allen’s motion for reconsideration. See Carey v. Saffold,
earlier, on October 14, 1994, when the Michigan Supreme 536 U.S. 214, 219-20 (2002) (concluding that an application
Court denied her application for leave to cross-appeal the for state postconviction relief is pending, and the federal
Court of Appeals’s decision affirming her assault conviction. statute of limitations is therefore tolled, “as long as the
She argues for this earlier date in the apparent belief that it ordinary state collateral review process is ‘in continuance’”).
bolsters her contention that equitable tolling should be After Allen’s motion was denied, the statute of limitations
applied. See Part II.C.1. below. Because Allen’s conviction, would have continued to be tolled during the 90 days in
under this theory, would have been final prior to the which Allen could have sought a writ of certiorari from the
enactment of AEDPA, Allen’s time to file her habeas petition United States Supreme Court. See Abela v. Martin, 348 F.3d
would have expired on April 24, 1997. See Austin v. 164, 172-73 (6th Cir. 2003) (en banc). That 90-day period
Mitchell, 200 F.3d 391, 393 (6th Cir. 1999) (holding that would have expired on January 28, 2001, causing the federal
petitioners whose convictions became final before the statute of limitations to resume running the next day, on
enactment of AEDPA had a one-year grace period after January 29, 2001. With 51 days remaining in the statutory
AEDPA’s effective date to file their federal habeas petitions). period, Allen would have had until March 20, 2001 to file her
Allen, however, did not file her habeas petition until habeas petition in the district court. But Allen did not file her
October 22, 2001, approximately four years and six months habeas petition until October 22, 2001, approximately seven
later. months later.
We do not have to decide, however, whether the district Thus, whether the direct-review process concluded when
court was correct in concluding that Allen’s conviction did the Michigan Court of Appeals affirmed Allen’s assault
not become final until November 18, 1997. Even giving conviction, or when that court subsequently affirmed her
Allen the benefit of that later date, her petition was still manslaughter conviction, the result is the same: Allen’s
untimely. petition was untimely. We therefore will assume without
No. 03-1078 Allen v. Yukins 7 8 Allen v. Yukins No. 03-1078
deciding that the district court’s analysis was correct, and that appellate counsel tolls, but does not restart, AEDPA’s one-
Allen’s conviction became final on November 18, 1997. year statute of limitations. Allen therefore filed her habeas
petition seven months late, unless she is entitled to the
2. Does a state postconviction motion claiming equitable tolling of AEDPA’s statutory period.
ineffective assistance of appellate counsel
restart the one-year limitations period? C. Is Allen entitled to the equitable tolling of
AEDPA’s one-year statute of limitations?
In an attempt to demonstrate that her petition was in fact
timely, Allen argues that a state postconviction motion Because AEDPA’s one-year statute of limitations is not
claiming ineffective assistance of appellate counsel should be jurisdictional, a petitioner who misses the deadline may still
considered part of the state’s direct-review process. Under maintain a viable habeas action if the court decides that
this theory, Allen’s habeas petition would have been timely equitable tolling is appropriate. Dunlap v. United States, 250
because the state courts did not finally dispose of her F.3d 1001, 1007 (6th Cir.), cert. denied, 122 S. Ct. 649 (2001).
postconviction motion, which claimed ineffective assistance “The petitioner bears the burden of demonstrating that he [or
of appellate counsel, until October 30, 2000, less than one she] is entitled to equitable tolling.” McClendon, 329 F.3d at
year before Allen filed her habeas petition in federal court. 494. In a case like the present one, where the facts are
Allen relies on this court’s decision in Payton v. Brigano, undisputed and the district court decides as a matter of law
256 F.3d 405 (6th Cir. 2001), in which this court observed in that equitable tolling does not apply, this court reviews the
a footnote that, under Ohio law, a state postconviction motion district court’s decision de novo. Dunlap, 250 F.3d at 1007-
claiming ineffective assistance of appellate counsel is 08 n.2.
considered part of the state’s direct-review process. Id. at 409
n.4. A court must consider the following factors in deciding
whether equitable tolling should apply:
The argument she raises, however, was rejected in
McClendon v. Sherman, 329 F.3d 490 (6th Cir. 2003), where (1) the petitioner’s lack of notice of the filing
the petitioner was a Michigan state prisoner, as is Allen. In requirement; (2) the petitioner’s lack of constructive
McClendon, this court stated: “We reject McClendon’s knowledge of the filing requirement; (3) diligence in
contention that whenever a prisoner raises an allegation in his pursuing one’s rights; (4) absence of prejudice to the
state post-conviction proceedings that he was denied the respondent; and (5) the petitioner’s reasonableness in
effective assistance of counsel on direct appeal, his conviction remaining ignorant of the legal requirement for filing his
does not become final until those state post-conviction claim.
proceedings have ended.” Id. at 493. The McClendon court
emphasized that, even in the unique context of Ohio law, Id. at 1008. “This list of factors is not necessarily
“upon the filing of an ineffective assistance claim in state comprehensive, and not all factors are relevant in all cases.”
court, the statute of limitations is not restarted, but merely Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003). This
tolled.” Id. at 494. court has also emphasized that “[a]bsence of prejudice is a
factor to be considered only after a factor that might justify
McClendon clearly holds that a state petition for tolling is identified.” Id.
postconviction review claiming ineffective assistance of
No. 03-1078 Allen v. Yukins 9 10 Allen v. Yukins No. 03-1078
1. Allen’s lack of actual or constructive Even assuming that Allen’s conviction did not become final
knowledge of the filing requirement until November 18, 1997, as held by the district court, she
still had notice of the limitations period. The AEDPA statute
Allen first contends that she is entitled to equitable tolling plainly states that the one-year statute of limitations runs from
because she lacked actual or constructive knowledge of the the “conclusion of direct review” and that the statutory period
filing requirement. This court considered a similar situation is tolled during the time when a motion for state
in McClendon, where the petitioner’s conviction became final postconviction review is pending. 28 U.S.C. §§ 2244(d)(1)-
in August of 1995, before the enactment of AEDPA on (2). These statutory provisions clearly explained to Allen
April 24, 1996. 329 F.3d at 493. But McClendon did not file how AEDPA’s statute of limitations would apply to her case.
his habeas petition until November of 2000, eleven months Notice by means of a statute, moreover, is certainly as
after this court’s decision in Austin v. Mitchell, 200 F.3d 391 adequate as notice through a published court opinion.
(6th Cir. 1999). McClendon, 329 F.3d at 492. The Austin
court held that petitioners whose convictions became final Allen, however, contends that confusion existed about the
before the enactment of AEDPA had until April 24, 1997 to application of AEDPA’s statutory period. According to
file their habeas petitions. This court in McClendon Allen,
concluded that the decision in Austin informed McClendon
that the time for filing his habeas petition had lapsed, and that [i]n light of the fact that the court’s [sic] were having
McClendon had shown a lack of diligence by waiting eleven difficulty in interpreting and applying the statute of
months after Austin was decided before filing his habeas limitations for inmates whose convictions occurred
petition. Id. at 495. McClendon, in other words, had before the enactment of AEDPA, it can hardly be said
constructive knowledge of the filing requirement through a that inmates themselves should have known how the
published opinion of this court. statute would operate.
As discussed above, Allen’s conviction became final either But the district court explained the flaw in Allen’s argument
prior to the enactment of AEDPA or, as the district court as follows:
concluded, on November 18, 1997, more than a year after
AEDPA’s effective date. Allen had notice of AEDPA’s one- The law was somewhat unsettled as [to] petitioners
year statute of limitations either way. If her conviction whose convictions became final before the effective date
became final prior to the enactment of AEDPA, then she was of AEDPA. This Court is not aware, however, of the law
on notice of the limitations period when this court decided being unsettled regarding when the one year statute of
Austin. But Allen contends that Austin provided insufficient limitations would begin running for petitioners such as
notice because it was not decided until 1999 and therefore Allen, whose convictions became final after the effective
“did absolutely nothing for inmates such as Petitioner, date of AEDPA.
because they could do nothing retroactively to file or toll the
running of the statute.” To the contrary, “a reasonably Because of this court’s decision in Austin and AEDPA’s
diligent effort to file within a reasonably quick time [after clear provisions regarding the statute of limitations, Allen
Austin was decided] might have entitled [Allen] to equitable cannot claim a lack of constructive knowledge regarding the
tolling[,]” despite the fact that the statutory period would filing deadline. Even if Allen lacked actual knowledge of the
already have lapsed. McClendon, 329 F.3d at 495. relevant provisions of AEDPA, this court has repeatedly held
No. 03-1078 Allen v. Yukins 11 12 Allen v. Yukins No. 03-1078
that “ignorance of the law alone is not sufficient to warrant from the conclusion of direct review. 28 U.S.C.
equitable tolling.” Rose v. Dole, 945 F.2d 1331, 1335 (6th § 2244(d)(1)(A). The advice of the attorney, therefore, could
Cir. 1991). We therefore conclude that Allen’s purported lack not have affected Allen’s federal rights. Even if Allen had
of actual or constructive knowledge does not make equitable followed the attorney’s suggestion and delayed her decision
tolling appropriate. of whether to appeal the pretrial order, the federal statute of
limitations still would not have started until the conclusion of
2. Allen’s lack of diligence in pursuing her both the trial proceedings and direct review.
rights
The second letter to Allen from her attorney is dated
Allen next contends that equitable tolling is appropriate March 24, 1997, which was after Allen was sentenced on the
because she was diligent in pursuing her rights. Using the manslaughter charge, but before Allen had appealed that
district court’s analysis of the date on which Allen’s conviction and sentence to the Michigan Court of Appeals.
conviction became final, however, she filed her habeas In the second letter, Allen’s attorney states: “I know you have
petition approximately seven months late. Under the asked about federal habeas corpus relief. I’m not an expert on
alternative analysis, her petition would have been filed that procedure, but it would seem to me that you are a long
approximately four years and six months late. Even giving way from exhausting your state court remedies, a prerequisite
Allen the benefit of the shorter period, she still has offered no typically to federal relief.” Allen contends that the attorney’s
adequate reason for the delay. “lack of knowledge of the statute of limitations” is a factor
that supports the application of equitable tolling in this case.
Allen contends, however, that one reason for her delay is
that she received mistaken advice contained in two letters This court has held, however, that a petitioner’s reliance on
written to her by her attorney. The first is dated the unreasonable and incorrect advice of his or her attorney is
September 20, 1995, when the cases of Allen’s codefendants not a ground for equitable tolling. Jurado v. Burt, 337 F.3d
were still pending in the Michigan Supreme Court. Allen’s 638, 644-45 (6th Cir. 2003). Although not directly on point,
case had returned to the trial court, where she eventually pled Jurado suggests that equitable tolling is not appropriate in
nolo contendere to a charge of manslaughter. In the first this case. In Jurado, the attorney (unintentionally) misled the
letter, the lawyer advised Allen to wait and see how the petitioner; in the present case, Allen’s attorney simply
Supreme Court decided her codefendants’ cases before she admitted that he was not an expert in federal habeas
decided whether to appeal a pretrial order in her remanded procedures. The advice that Allen’s attorney did provide,
proceeding. moreover, was correct: Allen could not file a habeas petition
until she had exhausted her state remedies. See
Assuming, once again, that Allen’s conviction was not final 28 U.S.C.§ 2254(b)(1) (“An application for a writ of habeas
until soon after the Michigan Court of Appeals affirmed her corpus on behalf of a person in custody pursuant to the
manslaughter conviction and sentence, the attorney’s advice judgment of a State court shall not be granted unless it
to Allen in the first letter is not relevant to Allen’s delay in appears that—(A) the applicant has exhausted the remedies
filing her federal habeas petition. At the time the attorney available in the courts of the State . . . .”).
wrote the letter, Allen had not yet pled guilty to manslaughter,
much less started the process of direct review. AEDPA, If equitable tolling was not appropriate in Jurado, where
however, clearly states that the statute of limitations runs the petitioner detrimentally relied on the unintentionally
No. 03-1078 Allen v. Yukins 13 14 Allen v. Yukins No. 03-1078
incorrect advice from his attorney, then tolling is certainly not D. Does Allen’s claim of actual innocence allow her
appropriate here, where Allen’s attorney simply admitted that to circumvent AEDPA’s statute of limitations?
he lacked the relevant legal knowledge and gave Allen advice
that was, in fact, correct. The attorney’s second letter to Allen finally contends that, even if her habeas petition was
Allen therefore provides no basis for the application of untimely, her claims should still be considered because she is
equitable tolling. actually innocent of the assault-with-the-intent-to-commit-
murder charge. Although one district court within this circuit
3. Length of Allen’s delay in filing her habeas has held that the United States Constitution requires an
petition actual-innocence exception to AEDPA’s statute of
limitations, see Holloway v. Jones, 166 F. Supp. 2d 1185,
Allen also claims that she is entitled to equitable tolling 1190 (E.D. Mich. 2001), this court has never endorsed that
because the seven-month delay between the conclusion of the view. One case that provides useful guidance, however, is
state postconviction proceedings and the time she filed her Whalen v. Randle, 2002 WL 409113 (6th Cir. March 12,
habeas petition was reasonable. But this court has declined to 2002) (unpublished opinion), where this court declined to
apply equitable tolling where the delay was far less than decide whether an actual-innocence exception exists because
seven months. See, e.g., Cook v. Stegall, 295 F.3d 517, 518 the petitioner in that case was “unable to demonstrate that he
(6th Cir. 2002) (concluding that equitable tolling was not was actually innocent of the charges for which he was
appropriate where the petitioner filed his habeas petition one convicted.” Id. at *7.
month late); Dunlap v. United States, 250 F.3d 1001, 1010
(6th Cir. 2002) (holding that the petitioner was not entitled to Although the Whalen court declined to adopt an actual-
equitable tolling where he filed his habeas petition more than innocence exception, the court suggested the likely
two months late). In light of Cook and Dunlap, the length of requirements of such a claim:
Allen’s delay does not support the application of equitable
tolling; in fact, the length of her delay actually suggests that Other circuits that have considered such an exception
equitable tolling is not appropriate in this case. have set a very high bar for actual innocence claims,
since a substantial claim that constitutional error has
4. Lack of prejudice to the respondent caused the conviction of an innocent person should be
extremely rare. The exception requires petitioner to
Allen finally argues that equitable tolling is appropriate “show that it is more likely than not” that no reasonable
because the state has not been prejudiced by the delay. As juror would have found [him] guilty beyond a reasonable
noted above, however, this court has held that the “[a]bsence doubt in light of all the evidence. The petitioner must
of prejudice is a factor to be considered only after a factor that produce evidence of innocence so strong that the court
might justify tolling is identified.” Vroman v. Brigano, can not “have confidence in the outcome of the trial
346 F.3d at 605. Because Allen has failed to demonstrate the unless the court is also satisfied that the trial was free of
existence of a factor that justifies tolling, we may not consider nonharmless constitutional error.”
the alleged lack of prejudice.
Id. at *6 (citations omitted).
No. 03-1078 Allen v. Yukins 15 16 Allen v. Yukins No. 03-1078
In the present case, Allen first contends that the evidence Anastasia’s affidavit in essence states that (1) Allen did not,
presented at trial was insufficient to demonstrate that she in the presence of Anastasia, encourage Light to shoot
aided and abetted the gunman, Ronald Light, in committing Carson, and (2) Allen and Anastasia did not jointly encourage
the crime of assault with the intent to commit murder. But Light to shoot Carson. But the affidavit does not eliminate
this evidence was actually presented to a jury, which found the possibility that Allen, outside of the presence of
Allen guilty. Allen therefore cannot credibly contend that no Anastasia, encouraged Light to shoot Carson. Anastasia’s
hypothetical reasonable juror, after hearing the trial evidence, affidavit is therefore insufficient to demonstrate actual
would have found Allen guilty beyond a reasonable doubt; an innocence.
entire jury did exactly that.
Light’s affidavit, on the other hand, has the potential to
Beyond the trial evidence, Allen also claims that affidavits exculpate Allen. As the district court noted, however,
by her codefendants, Anastasia Allen and Light, demonstrate postconviction statements by codefendants are inherently
her innocence. Her sister Anastasia’s affidavit states: suspect because codefendants may try to assume full
responsibility for the crime without any adverse
1. That I, Anastasia Allen, did not hear Charmel Allen consequences. But Allen contends that the district court’s
ask, nor encourage, instigate, express nor imply to analysis was incorrect because “Mr. Light has effectively
Ronald Light that she desired him to assault Brian deprived himself of any opportunity to seek legal recourse for
Carson, and; his release by signing the affidavit and disclosing the truth.”
The flaw in Allen’s argument, however, is that Light’s
2. That I, Anastasia Allen and Charmel Allen never affidavit exculpates Allen, but does not actually inculpate
discussed, planned nor intended for Ronald Light to Light in any way. Thus, the district court correctly concluded
assault Brian Carson before, during, after nor in the that Light’s affidavit was inherently suspect because Light
presence [sic]. could have signed the affidavit in order to help his
codefendant Allen without endangering his own interests.
In a similar vein, Light’s affidavit reads:
Aside from its lack of reliability, Light’s affidavit is
1. That I, Ronald Light, did not receive any assistance, insufficient to demonstrate that Allen is innocent because
encouragement, nor counseling from Charmel C. Allen, Light’s assertions are inconsistent with the evidence presented
and; at trial. According to the Michigan Court of Appeals, the
evidence introduced at trial demonstrated the following:
2. That there was not a common design or purpose
between Charmel Allen and I, and; • On the date of the incident, Allen could not account for
$1,200 of her ex-boyfriend’s money;
3. That Charmel Allen and I did not share any criminal
intent on the assault against Brian Carson, and; • Allen “orchestrated the plan to bring Anastasia and Light
to Wallace’s and Carson’s apartment”;
4. That no advice or advisement was given to me by
Charmel Allen during, before, in between nor after the • After arriving at the apartment, Allen “coaxed Carson
assault on Brian Carson. into unlocking his door”;
No. 03-1078 Allen v. Yukins 17 18 Allen v. Yukins No. 03-1078
• Allen, Anastasia, and Light then “forcibly entered” the question of whether the Constitution requires an actual-
apartment; innocence exception to [28 U.S.C.] § 2244(d)(1).” Id. at *7.
• “[W]hile Light pointed the gun at Carson and Wallace, III. CONCLUSION
[Allen] demanded money.”
For all of the reasons set forth above, we AFFIRM the
We must presume that these factual findings by the Michigan judgment of the district court.
Court of Appeals are correct unless Allen rebuts that
presumption with clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).
Light’s affidavit essentially asserts that Allen never
encouraged him to participate in either the attempt to get
money from Carson and Wallace or the shooting. This
assertion is inconsistent with the evidence presented at trial
demonstrating that Allen, not Light, had the motive to obtain
money from Carson and Wallace. Light’s affidavit is also
contrary to the Michigan Court of Appeal’s finding that Allen
“orchestrated the plan to bring Anastasia and Light to
Wallace’s and Carson’s apartment.”
This court noted in Whalen that the actual-innocence
exception “requires petitioner to ‘show that it is more likely
than not’ that no reasonable juror would have found [him]
guilty beyond a reasonable doubt in light of all the evidence.”
2002 WL at *6 (citing Schlup v. Delo, 513 U.S. 298, 327
(1995)). In the present case, Allen’s evidence of her alleged
innocence consists of two postconviction affidavits from her
codefendants. One affidavit is facially insufficient to
establish that Allen is innocent; the other is inherently
unreliable and contradicted by the evidence presented at trial.
In light of the foregoing, we conclude that a reasonable juror
could easily find beyond a reasonable doubt that Allen is
guilty of assault with the intent to commit murder.
Because the affidavits are legally insufficient to establish
that Allen is actually innocent of the assault charge, we will
follow the lead of the Whalen court and “decline to reach the