McCray v. Vasbinder

499 F.3d 568, 2007 U.S. App. LEXIS 20552, 2007 WL 2416426
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 28, 2007
Docket06-2381
StatusPublished
Cited by60 cases

This text of 499 F.3d 568 (McCray v. Vasbinder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCray v. Vasbinder, 499 F.3d 568, 2007 U.S. App. LEXIS 20552, 2007 WL 2416426 (6th Cir. 2007).

Opinions

SUTTON, J., delivered the opinion of the court, in which NORRIS, and GILMAN, JJ., joined. GILMAN, J. (pp. 577-78), delivered a separate concurring opinion.

[569]*569OPINION

SUTTON, Circuit Judge.

A Michigan jury convicted Oyd McCray of first-degree murder and possession of a firearm during the commission of a felony, and the state court sentenced him to life in prison without the possibility of parole. Claiming to be innocent of the crimes, McCray filed an untimely application for a writ of habeas corpus, which the district court granted. Because McCray has not satisfied the gateway requirements for excusing a time-barred claim, see Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (requiring the applicant to “show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt”); Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005) (applying the Sehlup standard to determine whether a late-filed claim should be equitably tolled under AEDPA), we reverse.

I.

On September 28, 1994, Perry Leonard was shot to death while sitting in his Chevrolet Suburban on Bessemore Street in Detroit. Three days after the shooting, a witness identified Oyd McCray in a line-up as the gunman. Detroit police arrested McCray and charged him with first-degree murder, see Mich. Comp. Laws § 750.316, and with possession of a firearm during the commission of a felony, see id. § 750.227b.

At McCray’s trial, Eric Perrin, the witness who identified McCray, testified that he was driving on Bessemore Street sometime after 5:00 p.m. when he saw a brown Chevrolet Suburban truck stopped “in the middle of the street” blocking traffic. JA 88. He observed a man standing by the driver’s side window of the vehicle talking to the driver. About ten minutes later, Perrin testified, a blue car pulled up to the Suburban. The driver exited the car, “put his arm across the roof ... and looked toward the guy ... in the Suburban.... And then when he did that, the [man standing by the driver’s side window of the Suburban] started shooting the guy in the Suburban” through the open window, “just jerking the gun into the driver of the truck.” JA 93-94. Perrin described the gun as a silver, semi-automatic handgun.

In the midst of the shooting, Perrin continued, the Suburban began moving, veered left, jumped the curb and crashed into a house, and all the while the shooter “kept firing the gun, running alongside the vehicle.” JA 95. Perrin estimated that the shooter fired off “anywhere from five to ten shots.” JA 102. He next saw the shooter enter the blue car, and, fearing that he had seen “more than what [he] should have,” Perrin “got out of there.” JA 98.

At a line-up three days later, Perrin fingered McCray as the shooter. At trial, Perrin admitted that he had not “noticed [McCray’s] beard as profoundly at the time of the incident as [he] did in the lineup,” JA 103, but concluded that McCray was in fact the person he saw shoot and kill Leonard.

The State’s second witness, Dartrell Ef-finger, testified that he was the driver of the blue car that pulled up to the Suburban. He observed McCray, whom he had known for a “[l]ong time,” JA 129, talking to Leonard, the driver of the Suburban. He got out of his car, greeted Leonard, then heard gunfire. He could not see McCray’s hand because it was inside the driver’s side window of the Suburban. After hearing gun shots, Effinger returned to his car and drove away. He denied that McCray and he left the scene together in his car and testified that he did not see Perrin’s car stopped near the Suburban [570]*570during the shooting. On cross-examination, Effinger acknowledged that he had told defense counsel that the shooter might have been McCray’s brother, Stacy, who looked “very much” like McCray. JA 145-46.

A county medical examiner testified that Leonard died from “massive internal bleeding” caused by multiple gunshot wounds and noted that he found “15 bullet tracks” in Leonard’s body. JA 154-55. The prosecution called several Detroit Police officers, who testified that Leonard was lying face-down in the Suburban with “blood spattered about the vehicle,” JA 164, and that the vehicle had bullet holes in the passenger door. Police tested the Suburban for fingerprints but did not recover any.

McCray put on two witnesses, one of whom undermined his defense. Herbert Sanders, the attorney whom the court had appointed to ensure fairness at the suspect line-up, acknowledged that Perrin “was eventually able” to identify McCray as the shooter. JA 244. Evelyn Ross, who lived in the home struck by Leonard’s Suburban, testified that she did not see Effing-er’s or Perrin’s car at the time of the shooting.

The jury found McCray guilty on both charges. The court sentenced McCray to life in prison without the possibility of parole for the murder conviction and to two years in prison for the firearm conviction (to be served concurrently with the life term).

On direct appeal, McCray argued that his trial counsel had been ineffective because he had not contacted several potential witnesses. The Michigan Court of Appeals affirmed McCray’s convictions, see People v. McCray, No. 181017, 1996 WL 33362436 (Mich.Ct.App. June 25, 1996) (per curiam); the Michigan Supreme Court denied leave to appeal, see People v. McCray, 454 Mich. 914, 564 N.W.2d 897 (1997); and the United States Supreme Court denied McCray’s certiorari petition, see McCray v. Michigan, 522 U.S. 888, 118 S.Ct. 223, 139 L.Ed.2d 156 (1997).

McCray collaterally attacked his convictions, filing a motion in the trial court for relief from judgment. Among the issues McCray raised was his trial attorney’s failure to track down potential witnesses. The trial court denied the motion, see People v. McCray, No. 94-3272 (Mich.3d Cir. Ct., Crim.Div. Feb. 9, 2000); and the Michigan appellate courts denied leave to appeal, see People v. McCray, No. 229804 (Mich.Ct.App. Apr. 26, 2001); People v. McCray, No. 119425 (Mich. Nov. 30, 2001).

McCray filed a second motion for relief from judgment, arguing that newly discovered evidence entitled him to a new trial. The new evidence consisted of two affidavits — one from Effinger expressing doubt that McCray was the shooter, the other from Jermaine Hunter claiming he had spoken to Effinger about the crime when the two were incarcerated together. Ef-finger, says Hunter, told him that McCray was not the shooter and that he had named McCray as the shooter to spare himself and his own brother jail time. The trial court denied McCray’s motion. See People v. McCray, No. 94-3272 (Mich.3d Cir.Ct., Crim.Div. Aug. 14, 2001). The Michigan Court of Appeals dismissed McCray’s appeal as untimely, observing that, even if McCray had filed a timely appeal, it would have denied the motion because McCray “could have discovered the proffered evidence before he filed his initial motion for relief from judgment.” People v. McCray, No. 243197 (Mich.Ct. App. Sept. 4, 2002). McCray did not seek leave to appeal to the Michigan Supreme Court.

[571]

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Cite This Page — Counsel Stack

Bluebook (online)
499 F.3d 568, 2007 U.S. App. LEXIS 20552, 2007 WL 2416426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccray-v-vasbinder-ca6-2007.