Court: Court of Appeals for the Sixth Circuit; August 2, 2005; Federal Appellate Court
Thomas Ross was convicted in Michigan of first-degree felony murder for an incident involving the fatal shooting of Donald Schroeder during an attempted robbery, with the jury finding that Ross committed assault with intent to rob while unarmed (AWIR-U). He was sentenced to life imprisonment without parole. Ross subsequently filed a habeas corpus petition, claiming that AWIR-U should not be considered a predicate offense for felony murder, thus arguing that his due process rights were violated. The State of Michigan moved for summary judgment, asserting that Ross's petition was untimely. The district court granted this motion. Ross contended that the court should equitably toll the limitations period of the Antiterrorism and Effective Death Penalty Act (AEDPA) due to his actual innocence. However, the court ruled that even assuming equitable tolling could apply, Ross failed to prove his actual innocence since Michigan law recognizes AWIR-U as a predicate offense for felony murder. The Michigan Court of Appeals upheld Ross's conviction, noting sufficient evidence supported the jury's conclusion that Ross committed AWIR-U. Ross did not appeal to the Michigan Supreme Court. His first application for state postconviction relief was denied in 1990, while a second application in 1999 claimed he was wrongfully convicted based on the same argument regarding AWIR-U, which resulted in the trial court granting relief and ordering resentencing for second-degree murder.
The Michigan Court of Appeals reversed a lower court's decision, ruling that AWIR-U (Assault with Intent to Rob and Steal Unarmed) qualifies as a predicate offense for felony murder under Michigan law. The court noted that while AWIR-U is classified as assault, its elements resemble those of attempted unarmed robbery, which is included as a predicate for felony murder. The Michigan Supreme Court later vacated the Court of Appeals' opinion, affirming on different grounds, stating Ross had not demonstrated good cause for failing to raise his argument regarding AWIR-U on appeal. Subsequently, Ross filed a habeas corpus petition in the U.S. District Court, claiming his felony murder conviction violated due process as AWIR-U is not a valid predicate offense. The State of Michigan sought summary judgment, asserting Ross failed to meet the AEDPA statute of limitations, which had expired for his claim. The court determined that Ross's postconviction application did not toll the limitations period since it was filed after it had ended. Additionally, Ross did not provide sufficient grounds for equitable tolling, nor did he present new reliable evidence to substantiate his claim of actual innocence as required by precedent.
The court determined that for a petitioner to invoke an actual innocence exception, reasonable diligence in pursuing the claim is required. Ross failed to demonstrate this diligence, as he only raised the issue of AWIR-U's inability to support his felony-murder conviction a decade after his conviction was final and waited an additional year post-decision to file for habeas corpus. Consequently, the court granted the State's summary judgment motion, affirming that Ross's petition was untimely and did not comply with AEDPA's statute of limitations.
Ross did not argue that equitable tolling under Dunlap applied or that he had provided new exculpatory evidence necessary to support his claim of actual innocence as established in Souter v. Jones, which requires a showing of new reliable evidence proving that no reasonable juror would convict him. Furthermore, even if Souter's rule were extended to non-capital cases, Ross did not prove his innocence concerning the life imprisonment penalty, especially given that Michigan law recognizes attempted robbery as a lesser-included offense of assault with intent to rob, which can predicate felony murder.
The court clarified that there are two categories of actual innocence applicable to habeas cases, but Ross's situation did not align with the requirements for equitable tolling based on actual innocence. He acknowledged that his case more closely resembled the second category, which allows consideration of claims in extraordinary circumstances where constitutional violations may have led to the conviction of someone who is actually innocent. However, he failed to meet the standards set forth by Schlup and Souter, as he did not present new evidence or contest the acts underlying his conviction. Ross also sought to extend Souter's rule to claims of "innocence of the penalty," referencing Sawyer v. Whitley, which permits such considerations for capital cases, but this extension was not applicable to his circumstances.
Arson served as the predicate felony for the petitioner's first-degree murder conviction and an aggravating factor during sentencing. The Court established that to demonstrate actual innocence, a petitioner must provide clear and convincing evidence that, absent a constitutional error, no reasonable juror would have deemed them eligible for the death penalty under state law. This standard, articulated in Sawyer, imposes a stricter burden than Schlup's standard for claims based on new facts and aims to preserve the narrow and objective nature of actual innocence. Sawyer’s “innocence of the penalty” test applies to any special factors qualifying a petitioner for the death penalty, regardless of whether these factors are part of the murder offense or serve as sentencing enhancers.
In this context, Ross is contesting the validity of the felony, assault with intent to rob while unarmed (AWIR-U), which rendered him eligible for first-degree murder and the associated severe penalty under Michigan law. A ruling in Ross's favor would require extending the equitable tolling principles from Souter to claims of actual innocence concerning non-capital penalties, which remains an unresolved issue. Nonetheless, the Court determined that Michigan recognizes AWIR-U as a predicate for felony murder, and therefore, Ross has not shown actual innocence regarding life imprisonment. The Michigan Court of Appeals has affirmed that assault with intent to rob is a legitimate predicate for felony murder, supported by both historical and current versions of the statute. The court referenced prior cases, noting that the Michigan Supreme Court has established that attempted armed robbery is a lesser included offense of assault with intent to rob while armed, confirming the legal foundation for the charges against Ross.
Akins concluded that attempted robbery is established whenever assault with intent to rob is established, with the distinction being that assault with intent to rob includes assault with force and violence. The court reasoned that since attempted robbery is a predicate offense for felony murder, assault with intent to rob must also be considered a predicate. Although Akins focused on the armed variant of assault with intent to rob, the reasoning applies equally to unarmed variants, as attempted unarmed robbery is a lesser-included offense of assault with intent to rob. The applicability of Akins is further supported by its endorsement of the vacated Ross opinion from the Michigan Court of Appeals, with the Michigan Supreme Court denying review. The principles in Akins were already established at the time of Ross’s 1986 conviction and did not depend on later changes to Michigan's felony-murder statute. The foundational analysis in Akins, asserting that attempted robbery is a lesser-included offense within assault with intent to rob, was established in the 1972 case People v. Patskan. Akins does not differentiate between armed and unarmed variants in its conclusion that assault with intent to rob supports a felony murder conviction. Consequently, Ross's claim of innocence regarding the penalty is unfounded, as both armed and unarmed assault with intent to rob supports a first-degree felony murder conviction in Michigan. The district court's grant of summary judgment to the State of Michigan is affirmed.
