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finding due process rights not violated by witness testimony allegedly secured through "police intimidation" where jury heard evidence regarding the alleged intimidation
Summary of this case from Vanhalst v. DavisOpinion
No. 15-2491
11-30-2016
CHUCK WILLIAM BACON, Petitioner-Appellant, v. PAUL KLEE, Respondent-Appellee.
ORDER
Chuck William Bacon, a Michigan prisoner proceeding pro se, appeals the district court's judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. He has applied for a certificate of appealability (COA). See Fed. R. App. P. 22(b)(1). He has also filed a motion for leave to proceed in forma pauperis (IFP) on appeal, see Fed. R. App. P. 24(a)(5), and a motion for appointment of counsel.
In 2006, a jury convicted Bacon of second-degree murder, assault with intent to murder, possession of a firearm by a felon, and possession of a firearm during the commission of a felony. The trial court sentenced him as a habitual offender to sixty to ninety years of imprisonment for the second-degree murder conviction, sixty to ninety years for the assault-with-intent-to-murder conviction, three to five years for the felon-in-possession-of-a-firearm conviction, and two years for the felony-firearm conviction. The Michigan Court of Appeals affirmed, People v. Bacon, No. 274242, 2008 WL 2356359 (Mich. Ct. App. June 10, 2008) (per curiam), and the Michigan Supreme Court denied leave to appeal, People v. Bacon, 757 N.W.2d 444 (Mich. 2008) (Mem.).
Bacon then filed a motion for relief from judgment, which the state courts denied. People v. Bacon, 815 N.W.2d 484 (Mich. 2012) (Mem.). While this motion was pending, Bacon filed a second motion for relief from judgment, which the state courts also denied. People v. Bacon, 839 N.W.2d 473 (Mich. 2013) (Mem.). On January 3, 2013, while his second motion for relief from judgment was pending, Bacon filed a federal habeas petition. On May 13, 2013, the district court held Bacon's petition in abeyance to allow him to exhaust additional claims in state court. On December 20, 2013, Bacon filed a supplemental habeas petition.
On May 8, 2015, the district court reopened Bacon's habeas proceedings and granted his request to file a supplemental petition. Bacon raised a total of eleven grounds for relief: (1) the prosecution improperly introduced coerced witness testimony; (2) the trial court improperly admitted evidence that witnesses were concerned for their safety; (3) the trial court improperly admitted evidence of an unrelated attack on the victim's mother; (4) the prosecution committed misconduct by introducing evidence that Bacon exercised his right to remain silent while in custody; (5) the prosecution committed misconduct (a) by appealing to sympathy, (b) by shifting the burden of proof, (c) by arguing facts not in evidence, (d) by disparaging defense counsel, (e) by improperly arguing other bad acts, and (f) based on cumulative error; (6) the trial court admitted improper character evidence; (7) trial counsel provided ineffective assistance (a) by failing to request a continuance, (b) by opening the door for Bacon's impeachment, (c) by failing to object to prosecutorial misconduct, (d) by failing to investigate and present inconsistencies in prosecution witness testimony, (e) by failing to investigate a prosecution witness's background, (f) by failing to request a manslaughter jury instruction, and (g) based on cumulative error; (8) newly discovered evidence established that Bacon shot the victim in self-defense; (9) the prosecution withheld impeachment evidence; (10) the trial court excluded a prosecution witness's Holmes Youthful Trainee Act disposition; and (11) the trial court excluded the public and Bacon's family from the courtroom during jury selection and counsel was ineffective in failing to object to this error.
The district court denied Bacon's habeas petition, finding that Grounds Eight, Nine, and Ten, and subsections (d) through (g) of Ground Seven, were procedurally defaulted; Ground Eleven was barred by the applicable statute of limitations; and Bacon's remaining claims failed on the merits. The district court declined to issue a COA and denied leave to proceed IFP on appeal.
Bacon appeals. In his COA application, he challenges the district court's findings as to procedural default, the statute of limitations, and the merits of his remaining claims.
To obtain a COA, a petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court may not grant habeas corpus relief with respect to any claim adjudicated on the merits in state court unless the state court's adjudication of the claim resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). When the district court has denied a § 2254 petition on procedural grounds, a petitioner must show "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).
In Ground One, Bacon claims that he was deprived of his right to due process and a fair trial because the statements of two key prosecution witnesses, Lateece Turner and Indea Knox, were introduced at trial after being obtained through police intimidation. Specifically, Bacon claims that officers obtained statements from Turner and Knox after, inter alia, threatening to take away Turner's children and threatening to send both Turner and Knox to jail. The Michigan Court of Appeals concluded that reversal on this claim was not warranted because both prosecution witnesses "provided evidence that their previous incriminating statements were truthful" and "[t]he jury heard the testimony about the alleged intimidation and also heard the denials by the police." Bacon, 2008 WL 2356359, at *2. The district court similarly rejected this claim, finding it unsupported by clearly established federal law. The district court also relied on Wilcox v. Ford, 813 F.2d 1140, 1149 (11th Cir. 1987), to conclude that, because Bacon was able to cross-examine the witnesses at trial regarding the police intimidation, his due process rights were not violated.
Reasonable jurists could not disagree with the district court's rejection of this claim. Although Bacon's claim is supported by clearly established federal law, see Giglio v. United States, 405 U.S. 150, 153 (1972), the state appellate court concluded that Bacon's due-process rights were not violated by the admission of Turner and Knox's allegedly coerced statements because the jury heard sufficient testimony as to the alleged intimidation to "reach its own conclusions about the weight to be afforded to Turner's and Knox's various statements." Bacon, 2008 WL 2356359, at *2. This determination was not an unreasonable application of clearly established federal law. See Rosencrantz v. Lafler, 568 F.3d 577, 589 (6th Cir. 2009).
In Grounds Two, Three, and Six, Bacon claims that he was deprived of his right to due process and a fair trial by several evidentiary rulings. In Ground Two, he challenges the introduction of evidence that prosecution witnesses "were afraid and concerned about their safety when there was no evidence that their fears were connected to [Bacon]"; in Ground Three, he challenges the "introduction of a separate uncharged, alleged attack on the victim's mother after the shooting"; and, in Ground Six, he challenges the "admission of a video displaying [Bacon] with weapons [and] 'gangsta rap.'" Alleged errors of state evidentiary law are not cognizable on habeas review unless the state court's ruling is so fundamentally unfair that it amounts to a due process violation. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Franklin v. Bradshaw, 695 F.3d 439, 456-57 (6th Cir. 2012). "Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they 'offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).
The district court found that the Michigan Court of Appeals reasonably concluded that the evidence that witnesses felt threatened was properly admitted "because the issue of [a witness]'s concern for her safety helped to explain the reason for [her] inconsistent statements and bore directly on her credibility as a witness." Bacon, 2008 WL 2356359, at *4. Reasonable jurists could not disagree. As for the admission of evidence that Bacon attacked the victim's mother and appeared in a rap video with weapons, "[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Under these circumstances, reasonable jurists could not disagree with the district court's conclusion that Bacon was not entitled to relief on Grounds Two, Three, and Six.
In Ground Four, Bacon claims that the prosecutor committed misconduct by commenting on his post-arrest silence. To be entitled to habeas relief on a prosecutorial misconduct claim, a petitioner must show that the prosecutor's conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). It is generally improper for a prosecutor to comment on a defendant's post-arrest silence, but "post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest." Doyle v. Ohio, 426 U.S. 610, 619 n.11 (1976). Bacon testified that after he was arrested, no officer asked him what had happened the night of the shooting, even though Bacon was jailed for eight days and maintained that he had acted in self-defense. Reasonable jurists could not disagree with the district court's conclusion that the Michigan Court of Appeals reasonably found that, because Bacon's "testimony arguably created the impression that he was unable to tell his version of events to police after his arrest," Bacon, 2008 WL 2356359, at *5, he was not entitled to relief on this claim. See Doyle, 426 U.S. at 620 n.11.
In Ground Five, Bacon raises several additional subclaims of prosecutorial misconduct. He first argues that the prosecutor committed misconduct by appealing to sympathy. Specifically, he challenges the prosecutor's statement during closing argument that the victim was scheduled to report for military duty the day after he was shot. In rejecting this claim, the Michigan Court of Appeals explained that the prosecutor's remarks were isolated and that "any possible prejudice was cured by the trial court's instruction to the jury that it was not to be influenced by sympathy." Bacon, 2008 WL 2356359, at *6. Reasonable jurists could not disagree with the district court's conclusion that the state appellate court reasonably adjudicated this claim. See Byrd v. Collins, 209 F.3d 486, 532 (6th Cir. 2000).
Bacon next argues that, in arguing that Bacon's previous attorney failed to ask any questions about self-defense at his preliminary examination, the prosecutor committed misconduct by shifting the burden of proof to Bacon. Although agreeing that the prosecutor's argument was improper, the Michigan Court of Appeals concluded that "any prejudice resulting from these comments was cured by the trial court's instruction that it was the prosecutor's burden, rather than the defendant's, to prove beyond a reasonable doubt that defendant did not act in self-defense." Bacon, 2008 WL 2356359, at *6-7. Reasonable jurists could not disagree with the district court's conclusion that the state appellate court reasonably adjudicated this claim. See Scott v. Elo, 302 F.3d 598, 603-04 (6th Cir. 2002).
Bacon next argues that the prosecutor committed misconduct by arguing, in her opening statement and closing argument, facts not in evidence. Specifically, he challenges the prosecutor's remarks during her opening statement that the victim was shot in the back of the head and that a witness had received "external pressure" from Bacon and his family. He also challenges the prosecutor's statement during her closing argument that Bacon knocked the victim down with his car. The district court found that, to the extent that the prosecutor's remarks in her opening statement varied from the evidence introduced at trial, any prejudice resulting from these remarks was cured by a subsequent limiting instruction to the jury. Reasonable jurists could not disagree. See Frazier v. Cupp, 394 U.S. 731, 736 (1969); Hamblin v. Mitchell, 354 F.3d 482, 495 (6th Cir. 2003). Moreover, as the Michigan Court of Appeals noted, any prejudice to Bacon's defense resulting from the prosecutor's remark as to the bullet's entry point was cured when "the medical examiner explained during direct examination by the prosecutor that the bullet entered [the victim]'s forehead." Bacon, 2008 WL 2356359, at *7. As for the prosecutor's statement that Bacon knocked the victim down with his car, the district court found that, because Bacon testified that he nearly knocked the victim down with his car, this statement was not very misleading. The district court found that, in any event, this statement did not prejudice Bacon's defense because the trial court subsequently issued a limiting instruction to the jury. Reasonable jurists could not disagree. See Hamblin, 354 F.3d at 495.
Bacon next argues that the prosecutor committed misconduct by disparaging defense counsel. Specifically, he challenges the prosecutor's statement, during her rebuttal argument, that "[y]ou heard Mr. Bacon's rap on that video. Now, you heard Counsel's rap, and I'll submit to you that Counsel is a better game spinner than his own client as far as the facts in this case." In rejecting this claim, the Michigan Court of Appeals explained that, "in context, the prosecutor's reference to defense counsel as a 'game spinner' was a play on words comparing defense counsel to defendant, who was a neighborhood rap artist, and part of the prosecutor's rebuttal that the evidence did not support defense counsel's argument that defendant acted in self-defense." Bacon, 2008 WL 2356359, at *8. The district court concluded that the state appellate court reasonably rejected this claim, explaining that, "even if the prosecutor's comments about [Bacon]'s defense were improper . . . . [w]hen combined with the instruction from the trial judge that the attorneys' arguments, questions, and statements were not evidence, the prosecutor's isolated comments did not render the entire trial fundamentally unfair." Reasonable jurists could not disagree. See Byrd, 209 F.3d at 532-33.
Bacon next argues that the prosecutor committed misconduct by arguing that Bacon was involved in other criminal activity. The district court found that, because the trial judge admitted this evidence, Bacon was not entitled to habeas relief on this claim. Reasonable jurists could not disagree. See Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008).
Finally, Bacon argues that, in combination, the prosecutor's improper arguments entitle him to habeas relief. Reasonable jurists could not disagree with the district court's conclusion that, because the Supreme Court "has not held that distinct constitutional claims can be cumulated to grant habeas relief," Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002), Bacon was not entitled to relief on this claim.
In Ground Seven, Bacon argues that trial counsel provided ineffective assistance. To establish an ineffective-assistance claim, a habeas petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness" and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is "a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id. at 689. Habeas review also mandates the application of a second layer of deference: a habeas court analyzes only whether the state court was reasonable in its determination that counsel's performance was adequate. See Burt v. Titlow, 134 S. Ct. 10, 13, 18 (2013); Abby v. Howe, 742 F.3d 221, 226 (6th Cir. 2014).
Bacon first argues that trial counsel was ineffective in failing to request a continuance when trial counsel received Bacon's case on a Friday, and Bacon's trial was scheduled to begin the following Tuesday. In rejecting this claim, the Michigan Court of Appeals explained that Bacon failed to establish prejudice to his defense because "it was clear that defense counsel was well prepared to try this case, given his vigorous cross-examination of the prosecutor's witnesses, presentation of defendant's case, and argument on behalf of defendant." Bacon, 2008 WL 2356359, at *10. The district court similarly noted that Bacon failed to "explain how trial counsel was unprepared or how additional preparation time would have aided [Bacon]'s case," and concluded that Bacon was not entitled to habeas relief on this claim because conclusory allegations of ineffective assistance do not warrant such relief. Reasonable jurists could not disagree. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Bacon next argues that trial counsel was ineffective in opening the door for the prosecutor's impeachment of Bacon with a prior drug conviction. In rejecting this claim, the Michigan Court of Appeals explained that "[i]t was [Bacon] himself who, contrary to counsel's advice, requested that the jury hear the audio portion of the video in which he described himself as a drug dealer." Bacon, 2008 WL 2356359, at The state appellate court found that, "[i]n light of the potential prejudice that could result, it was sound trial strategy for defense counsel to raise the issue that defendant was not a drug dealer currently and that the video was merely an image." Id. The state appellate court also noted that, "given the form of defense counsel's question—'Are you a dope dealer, a drug dealer?'—it is clear counsel attempted to confine this issue to the time of trial. Indeed, counsel made this argument in his objection to evidence of [Bacon]'s prior conviction." Id. The state appellate court found that, in any event, "counsel's performance in this matter was not outcome-determinative" because "evidence of defendant's prior conviction was but one issue testing [his] credibility." Id. Reasonable jurists could not disagree with the district court's conclusion that the state appellate court's rejection of this claim was based on a reasonable application of Strickland.
Bacon next argues that counsel was ineffective in failing to object to the prosecutorial misconduct alleged in Grounds Four and Five. The district court found that, because the state appellate court reasonably found that the prosecutor's comments did not deprive Bacon of a fair trial for the reasons discussed above, Bacon failed to establish that he suffered prejudice as a result of counsel's failure to object to these comments. Reasonable jurists could not disagree. See Slagle v. Bagley, 457 F.3d 501, 528 (6th Cir. 2006).
The district court determined that Bacon's remaining ineffective-assistance claims, as well as Grounds Eight, Nine, and Ten, were procedurally defaulted. A federal habeas court ordinarily will not review a petitioner's claims if he "has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Bacon presented his remaining ineffective-assistance claims, as well as Grounds Eight, Nine, and Ten, to the state trial court in his motion for relief from judgment. The state trial court rejected these claims, and the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal, entering substantively identical orders stating that Bacon had failed "to meet the burden of establishing entitlement to relief under [Michigan Court Rule (MCR)] 6.508(D)." Bacon, 815 N.W.2d 484.
MCR 6.508(D)(3) provides that a defendant may not raise claims in state post-conviction proceedings that could have been raised on appeal unless he can show good cause for his failure to do so and actual prejudice as a result of the alleged violations. To determine whether a brief, unexplained order citing MCR 6.508(D) is based on a procedural default or a merits ruling, this court reviews "the last reasoned state court opinion to determine the basis for the state court's rejection of" a particular claim. Amos v. Renico, 683 F.3d 720, 726 (6th Cir. 2012) (quoting Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc)). Here, the state trial court denied Bacon's post-conviction motion on procedural grounds set forth in MCR 6.508(D)(3)—specifically, because Bacon failed to raise the claims presented in his motion for relief from judgment on direct appeal. While the state trial court also addressed the merits of Bacon's claims, this review does not compromise the state trial court's procedural default ruling. Stokes v. Scutt, 527 F. App'x 358, 364 (6th Cir. 2013) (quoting Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)). Thus, this court presumes that the state intermediate and supreme courts—citing only MCR 6.508(D)—invoked the procedural bar as well. See Guilmette, 624 F.3d at 291-92. This court has recognized that enforcement of MCR 6.508(D)(3) constitutes "an independent and adequate state ground sufficient for procedural default." Amos, 683 F.3d at 733. Accordingly, the district court properly ruled that Bacon's remaining ineffective-assistance claims, as well as Grounds Eight, Nine, and Ten, were procedurally defaulted. Likewise, the district court properly ruled that Bacon failed to establish cause because he did not present any argument as to why he did not present these claims on direct appeal. Nor does he present any arguments with respect to cause in his application for COA. Reasonable jurists could not debate whether Bacon has established cause for his procedural default.
In Ground Eleven, Bacon claims that he was deprived of his right to a public trial when the trial court excluded the public and Bacon's family during jury selection, and trial counsel was ineffective in failing to object to this ruling. The district court concluded that this claim was barred by the applicable statute of limitations.
AEDPA imposes a one-year statute of limitations on petitions filed under § 2254. The limitation period runs from the latest of four specified dates:
(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;28 U.S.C. § 2244(d)(1). The one-year statute of limitations is statutorily tolled for the amount of "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The limitations period may also be equitably tolled. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010).
(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 initially 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.
It is undisputed that subsections (B) and (D) are inapplicable in this case. See 28 U.S.C. § 2244(d)(1)(B), (D). As for subsection (A), see 28 U.S.C. § 2244(d)(1)(A), the statute of limitations began to run when Bacon's conviction became final on February 23, 2009, ninety days after the Michigan Supreme Court denied his application for leave to appeal the adverse decision of the Michigan Court of Appeals. Bacon, 757 N.W.2d 444; see Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). As a result, Bacon had until February 23, 2010, to file his habeas petition. Because Bacon did not file his habeas petition until January 2013, the district court correctly concluded that, absent statutory or equitable tolling, his petition was time-barred.
On October 30, 2009, 249 days into the one-year limitations period, Bacon filed his first motion for relief from judgment in the state trial court. On June 25, 2012, the Michigan Supreme Court denied Bacon leave to appeal the adverse decisions of the state trial court and the Michigan Court of Appeals. Bacon, 815 N.W.2d 484. Thus, the one-year limitations period—with 116 days left on the clock—began to run again on June 26, 2012. Bacon therefore had until October 20, 2013, to file his habeas petition. Bacon filed his habeas petition on January 3, 2013, well before the one-year limitations period expired. Bacon's original habeas petition was therefore timely.
Bacon's second motion for relief from judgment did not toll the limitations period because it was not properly filed. See 28 U.S.C. § 2244(d)(2). "An application for post-conviction or other collateral review is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). "Federal courts are obligated to accept as valid a state court's interpretation of state law and rules of practice of that state." Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003). The Michigan Supreme Court held that Bacon's second motion for relief from judgment was a second or successive motion prohibited by Michigan Court Rule 6.502(G). Bacon, 839 N.W.2d 473. The district court properly deferred to the state court's determination. See Vroman, 346 F.3d at 604; Israfil, 276 F.3d at 771.
But Bacon's original habeas petition contained only Grounds One through Ten. He did not raise Ground Eleven until he filed a supplemental habeas petition on December 20, 2013, at which point the limitations period had expired. An amended or supplemental habeas petition may relate back to a timely filed original pleading, and thereby comply with AEDPA's one-year time limit, when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P. 15(c)(1)(B); see Mayle v. Felix, 545 U.S. 644, 654-55 (2005). But an amended habeas petition does not relate back "when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle, 545 U.S. at 650. Because the private-jury-selection claim asserted in Bacon's supplemental habeas petition set forth a new claim for relief that was based on facts that differed in time and type from the claims asserted in his original habeas petition, the supplemental petition did not relate back to the original habeas petition. See Fed. R. Civ. P. 15(c)(1)(B); Mayle, 545 U.S. at 650. Thus, absent equitable tolling, Bacon's supplemental habeas petition was untimely filed under 28 U.S.C. § 2244(d)(1)(A).
As for subsection (C), see 28 U.S.C. § 2244(d)(1)(C), Bacon based Ground Eleven on Presley v. Georgia, 558 U.S. 209 (2010) (per curiam), in which the Supreme Court held that a defendant's Sixth Amendment right to a public trial was violated when the trial court excluded the public from jury selection. But the Supreme Court did not establish a new constitutional right in Presley; indeed, in Presley, the Court expressly observed that the Sixth Amendment right to public jury selection was "well settled." 558 U.S. at 213. Moreover, the Supreme Court has not made Presley retroactive to cases on collateral review. See United States v. Edelkind, 456 F. App'x 428, 428 (5th Cir. 2012). Subsection (C) is therefore inapplicable in this case.
Thus, unless Bacon is entitled to equitable tolling, his supplemental habeas petition was untimely filed. A prisoner is entitled to equitable tolling of the limitations period if he can show that he diligently pursued his rights and was prevented from timely filing his habeas petition by an extraordinary circumstance. Holland, 560 U.S. at 649. Alternatively, a demonstration of actual innocence may serve as a gateway for review of an otherwise barred claim. See McQuiggin, 133 S. Ct. at 1928. Bacon does not argue that he is entitled to equitable tolling based on an extraordinary circumstance. He instead argues that he is entitled to equitable tolling because he has demonstrated his actual innocence.
"[A]ctual innocence means factual innocence, not mere legal insufficiency." Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). In order to demonstrate actual innocence, the petitioner must present "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Schlup v. Delo, 513 U.S. 298, 316 (1995). A showing must rely on "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Id. at 324. The only evidence that Bacon has submitted in support of his actual innocence claim is an affidavit in which an eyewitness to the shooting describes Bacon as having shot the victim in self-defense. Because this evidence goes to Bacon's legal, rather than factual, innocence, it is insufficient to equitably toll the limitations period. See Souter, 395 F.3d at 590. Accordingly, reasonable jurists could not debate the district court's ruling that Ground Eleven was barred by AEDPA's statute of limitations.
For these reasons, Bacon's application for COA is DENIED and his motions to proceed IFP and for appointment of counsel are DENIED as moot.
ENTERED BY ORDER OF THE COURT
/s/_________
Deborah S. Hunt, Clerk