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Supreme Court of the United States EXHIB1TJt t Page of No. 17-1410 / 0 % ages UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED JONATHAN HENRY HILL, ) Oct 11, 2017 DEBORAH S. HUNT, Clerk Petitioner-Appellant, ) ) V. ) ORDER ) STATE OF MICHIGAN, ) Respondent-Appellee. ) Jonathan Henry Hill, a pro se federal prisoner, appeals a district court judgment denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and moves this court for a certificate of appealability. He also requests the appointment of counsel. In 2006, while he was serving a federal sentence for pleading guilty to bank robbery by force and use of a weapon during a violent crime, a jury convicted Hill in state court of two counts of first-degree murder, Mich. Comp. Laws § 750.3 16, and two counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. The convictions arose following the shooting deaths of two victims that occurred prior to the filing of Hill's federal charges. He was sentenced to life imprisonment for each first-degree murder conviction and two years of imprisonment for each felony-firearm conviction. The Michigan Court of Appeals affirmed, People v. Hill, No. 269095, 2007 WL 2331077 (Mich. Ct. App. Aug. 16, 2007), and the Michigan Supreme Court denied leave to appeal on December 28, 2007, People v. Hill, 742 N.W.2d 369 (Mich. 2007) (mem.). -- No. 17-1410 -2- Sometime after September 25, 2014, Hill filed a motion for relief from judgment, which the state trial court denied. The Michigan Court of Appeals and Michigan Supreme Court each denied leave to appeal. On July 19, 2016, Hill filed the instant habeas corpus petition, challenging his state-court convictions. He claims that he received ineffective assistance of counsel and that the prosecutor committed misconduct. The district court denied Hill's habeas petition as time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1) and declined to issue a certificate of appealability. Hill now moves this court for a certificate of appealability. In his motion, Hill does not challenge the district court's ruling that his petition is time-barred under § 2244(d)(1). Because Hill did not raise this issue in his motion for a certificate of appealability, it is waived on appeal. See Jackson v. United States, 45 F. App'x 382, 385 (6th Cir. 2002). Hill, however, maintains that he "has pursued his rights diligently" to obtain "newly-discovered evidence"—two affidavits from 2014—and that this new evidence establishes his actual innocence. This court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim," the petitioner can satisfy § 2253(c)(2) by establishing that "jurists of reason would find it debatable whether the petition 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). Hill argues that he is entitled to equitable tolling. Section 2244(d) is subject to equitable tolling when a petitioner shows: "(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) (quoting Pace v. DiGuglielmo, 544 U.S. 408,418 (2005)). Hill has not met this burden. He alleges that two affidavits constitute "newly discovered evidence" and support his claim that the prosecution committed misconduct because it knew or No. 17-1410 -3- should have known that its informant, George Williams, provided false testimony that implicated Hill in the crimes.' At trial, Williams testified that, when he and Hill were cellmates in 2002 and 2003, Hill admitted to shooting the murder victims. Hill, 2007 WL 2331077, at *1. Neither of the affidavits provided by Hill contains any facts that could not have been discovered previously through the exercise of due diligence. The affidavits are authored by two inmates, Nathan Hill and Leslie James Warnsley, who were previously incarcerated with Williams on separate occasions. In Nathan's affidavit, he claims that Williams told him that Williams planned to implicate Hill in the murders by falsely testifying that Hill had confessed to the murders, and asked Nathan to join him in his plan. Nathan also claims that, when he thereafter ran into Hill in segregation, he "explained to [Hill] what [Williams] had told [him]." Contrary to Hill's argument, Nathan advised Hill of Williams's statements before Hill was tried. Nathan's affidavit makes clear that he told Hill what Williams said before Hill's trial because Hill asked in response if Nathan would testify for him and against Williams. Nathan declined, and Hill later told him that Williams indeed was a witness against him at his trial. Although Hill did not receive this affidavit from Nathan until 2014, the underlying facts—i.e., that Williams intended to falsely implicate Hill in the murders—were known to Hill before his trial in 2006 by virtue of his previous conversation with Nathan. Hill therefore knew of the factual predicate underlying his prosecutorial misconduct claim before he was convicted and thus well before expiration of the limitations period. Reasonable jurists therefore could not debate the district court's conclusion that Nathan's affidavit is not based on any newly discovered facts and thus does not warrant equitable tolling. Nor could reasonable jurists debate the district court's conclusion that Warnsley's affidavit does not support equitable tolling. In Warnsley's affidavit, he claims that he met Williams in prison in 2005 and that Williams told him "that he had returned to Michigan to testify as a cooperating Government witness in a high profile murder case" so that he could "shorten his prison time" and that he "convince[d] [the government] that the person he was 1 Because Hill does not raise his ineffective-assistance-of-counsel claim in his motion for a 4 çitificate of appealability, it is waived on appeal. See Jackson, 45 F. App'x at 385. No. 17-1410 -4- had confessed to him." As set forth above, Hill knew—prior to his trial— testifying against. that Williams intended to testify that Hill had confessed to the murders. Thus, even if Williams's statements to Warnsley show that Williams intended to falsely implicate Hill—despite that the affidavit does not mention Hill—Hill knew of Williams's intentions when Nathan told him so prior to trial. No jurist of reason therefore could disagree with the district court's conclusion that Hill is not entitled to equitable tolling. Absent equitable tolling, the only gateway for review of an otherwise time-barred claim is a showing of actual innocence. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). A credible 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 accounts, or critical physical evidence—that was not presented at trial." Schiup v. Delo, 513 U.S. 298, 324 (1995). The Supreme Court has cautioned that "tenable actual-innocence gateway pleas are rare: '[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." McQuiggin, 133 S. Ct. at 1928 (quoting Schiup, 513 U.S. at 329). Hill has not made this showing. Contrary to Hill's argument, neither affidavit described above establishes his actual innocence. As previously explained, the facts underlying each affidavit were known to Hill prior to trial and therefore the affidavits do not constitute new evidence. Nor do the affidavits show that no reasonable juror would have convicted him, particularly in view of the evidence presented at trial showing that "Hill shot [one of the victims] multiple times in the back as [the victim] staggered away," which "indicates that Hill not only intended to kill [the victim], but that he had time to contemplate his actions between shots" and thus "killed [the victim] with premeditation and deliberation." Hill, 2007 WL 2331077, at *2. Jurists of reason therefore could not debate the district court's finding that the affidavits do not No. 17-1410 -5- Accordingly, the court DENIES the application for a certificate Of appealability and DENIES as moot the request for the appointment of counsel. ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk Case 1:16-cv-00950-JTN-ESC ECF No. 8 filed 11/28/16 Page lD.88 Page 1 of 5 EXFflBrr4 UNITED STATES DISTRICT COURT Page WESTERN DISTRICT OF MICHIGAN ages SOUTHERN DIVISION JONATHAN HENRY HILL, Petitioner, Case No. 1:16-cv-950 V. HON. JANET I. NEFF STATE OF MICHIGAN, Respondent. I . OPINION AND ORDER This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred to the Magistrate Judge, who issued a Report and Recommendation (R&R, Dkt 6), recommending that this Court deny the petition as barred by the one-year statute of limitations. The. matter is presently before the Court on Petitioner's objections to the Report and Recommendation (Objs., Dkt 7). In accordance with 28 U.S.C. § 636(b)(1) and FED.
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