People of Michigan v. Jason Alan Brown ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 16, 2023
Plaintiff-Appellant,
v No. 358352
Ingham Circuit Court
JASON ALAN BROWN, LC No. 10-000631-FC
Defendant-Appellee.
Before: GLEICHER, C.J., AND BOONSTRA AND CAMERON, JJ.
PER CURIAM.
The prosecution appeals by leave granted1 a 2021 opinion and order granting defendant’s
motion for relief from judgment. The prosecution argues that the trial court relied on nonexistent
facts, improperly assessed the evidence and legal standards, and abused its discretion by granting
the motion. We agree and, therefore, reverse and remand for entry of an order denying the motion
for relief from judgment.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
In 2011, a jury convicted defendant of first-degree murder, MCL 750.316; armed robbery,
MCL 750.529; and conspiracy to commit armed robbery, MCL 750.157a. He was sentenced as a
fourth-offense habitual offender, MCL 769.12, to life imprisonment for first-degree murder and to
two terms of 171 months to 25 years’ imprisonment for armed robbery and conspiracy to commit
armed robbery. Defendant appealed and this Court affirmed the convictions. People v Brown,
unpublished per curiam opinion of the Court of Appeals, issued August 16, 2012 (Docket No.
305153), p 1.
1
See People v Brown, unpublished order of the Court of Appeals, entered February 9, 2022
(Docket No. 358352).
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This Court set forth the following facts in the 2012 opinion:
This case arises out of the murder and armed robbery of the victim in
Lansing, Michigan. Defendant arrived in Lansing and proceeded to spend a
significant amount of money purchasing crack cocaine. As a result of this behavior,
defendant needed money. Defendant was aware that the victim had recently cashed
a large check because defendant accompanied the victim to the party store to cash
the check. Defendant and his acquaintance, Jason Morse, decided to rob the victim
and split the money. While the events surrounding the murder are disputed,
defendant eventually confessed to the police that, according to Morse, defendant
strangled the victim to death.[2]
After the murder, defendant met with another acquaintance, Christopher
Stipanuk, and they continued to use crack cocaine throughout the day. Later that
evening, Stipanuk and defendant planned to meet Morse in an alley to exchange a
car, so defendant pulled into the alley to await Morse’s arrival. While waiting,
defendant began to pound the steering wheel and behave erratically. Defendant
then admitted to Stipanuk that he and Morse intended to rob the victim[] [and] split
the money, and the victim ended up dead.
While defendant and Stipanuk were waiting in the alley, the police received
a report of a suspicious vehicle. The police approached defendant’s car and
Stipanuk immediately informed the police that he [i.e., Stipanuk] had a warrant out
for his arrest. Stipanuk then relayed defendant’s admission to the police. While
one officer was talking with Stipanuk, another officer noticed drug paraphernalia
in the car, and conducted a search of the vehicle. The officer questioned defendant
about his drug use but when he was informed of Stipanuk’s statements, the officer
placed defendant in the back of the patrol car.
Defendant was then transported to the police precinct. An interrogating
officer questioned defendant three times regarding the murder, giving defendant his
Miranda[3] warnings only before defendant’s last statement. [Brown, unpub op at
1-2 (first footnote added).]
Years later, defendant moved for public funds to pay for a forensic psychological
examination by psychologist Jeffrey Wendt, Ph.D. In defendant’s view, an examination was
necessary to evaluate his mental state at the time of the Miranda waiver. The trial court granted
the motion and an evaluation and a report were completed. Defendant later moved for relief from
judgment, attaching Dr. Wendt’s report.
2
In a third statement to police, defendant said that Morse told him that he (defendant) had killed
the victim. An autopsy report showed that the victim died from strangulation.
3
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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In his report, Dr. Wendt stated that defendant “is currently functioning in the high average
range, at an intellectual level higher than 91% of same-aged peers.” He concluded that, when
properly medicated, defendant “presents as an intelligent man with a strength in his ability to attend
to information presented verbally, manipulate that information in short-term immediate memory,
and then formulate a response.” However, Dr. Wendt opined that these abilities were “neutralized
by acute cocaine withdrawal and sleep deprivation” when defendant made his post-Miranda
statement. According to Dr. Wendt, defendant told him that he had been having visual
hallucinations and paranoid delusions at the time of the statement. Dr. Wendt stated that defendant
had been experiencing acute pain at the time as a result of an injured ankle and was taking opioids
to deal with the pain. Dr. Wendt also credited Stipanuk’s preliminary-examination testimony that
defendant had what Stipanuk perceived as a “nervous breakdown” while he was sitting in a truck
with Stipanuk following the murder. Dr. Wendt concluded that the combination of the
circumstances prevented defendant “from making a knowing and intelligent waiver of [Miranda]
rights.” He also opined that there were “significant concerns regarding the trustworthiness of the
content of [defendant’s] statements” made to the investigating detective.
The trial court conducted a hearing on the motion for relief from judgment. The parties
argued over the prejudicial nature of defendant’s post-Miranda statements, some of which had
been played for the jury. During this discussion, the trial court interjected with the following
commentary:
I can tell you that I’ve had a number of law clerks look at this case because it’s
probably . . . one of the few cases that has never set well with me, and I have to
follow my gut, and that’s not in the law, . . . but we’ve been looking through this
file for quite a long time. . . . I’ve had four or five law clerks, I’ve had a number of
students look at this, number of attorneys have chimed in on [it], and we all missed
this until my current law clerk was looking at this so that we were prepared for
today . . . and one thing that really sticks in my mind, and that was, first of all, did
we scrub the third confession . . . enough, and I always thought maybe I should
have scrubbed it more. . . . I don’t know if either one of you have seen this, but
[defendant] is wearing street clothes for the first two. He’s not been Mirandized.
Prior to being Mirandized, he then is put in jail garb, so given his confused state of
mind, given that he is now dressed in jail garb, and he’s not yet confessed or been
read his rights, to me that adds a whole new psychological dimension . . . . I think
that brings a whole new layer to undue influence to not being freely, voluntarily,
knowingly making these statement . . . .
The trial court also stated that it was inequitable that Morse got a plea deal and added,
“[M]y gut says [defendant] gets a new damn trial.” It said, “[T]his can go up higher, but it is my
intention, unless I hear something today, that this case be vacated and we go into a new trial.” The
trial court opined that it should have ruled at trial that the third, post-Miranda, statement was
inadmissible. It granted defendant’s motion for relief from judgment in a written order. This
appeal followed.
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II. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s decision regarding a motion
for relief from judgment. People v Clark, 274 Mich App 248, 251; 732 NW2d 605 (2007). “The
trial court abuses its discretion when its decision falls outside the range of principled outcomes or
when it erroneously interprets or applies the law.” People v Lane, 308 Mich App 38, 51; 862
NW2d 446 (2014) (citation omitted). Conclusions of law and findings of fact made by the trial
court in support of its decision are reviewed, respectively, de novo and for clear error. See Clark,
274 Mich App at 251. “Clear error exists when the reviewing court is left with a definite and firm
conviction that a mistake has been made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d
528 (1993).
III. FOUNDATIONAL LAW
Criminal defendants in Michigan are permitted to seek postappeal relief through the
procedures described by MCR 6.500 et seq.
Accordingly, a defendant bears the burden of establishing entitlement to the relief
requested in their motion for relief from judgment. MCR 6.508(D). A trial court may not grant
relief from judgment if a defendant:
(2) alleges grounds for relief which were decided against the defendant in a
prior appeal or proceeding under this subchapter, unless the defendant establishes
that a retroactive change in the law has undermined the prior decision; for purposes
of this provision, a court is not precluded from considering previously decided
claims in the context of a new claim for relief, such as in determining whether new
evidence would make a different result probable on retrial, or if the previously
decided claims, when considered together with the new claim for relief, create a
significant possibility of actual innocence;
(3) alleges grounds for relief, other than jurisdictional defects, which could
have been raised on appeal from the conviction and sentence or in a prior motion
under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior
motion, and
(b) actual prejudice from the alleged irregularities that support the claim for
relief. As used in this subrule, “actual prejudice” means that,
(i) in a conviction following a trial,
(A) but for the alleged error, the defendant would have had a reasonably
likely chance of acquittal . . . .
* * *
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(iii) in any case, the irregularity was so offensive to the maintenance of a
sound judicial process that the conviction should not be allowed to stand regardless
of its effect on the outcome of the case . . . .
“The court may waive the ‘good cause’ requirement of subrule (D)(3)(a) if it concludes that there
is a significant possibility that the defendant is innocent of the crime.” MCR 6.508(D). Ultimately,
to obtain relief from judgment on the basis of a claim not previously decided, a defendant must
show: (1) actual prejudice, and (2) either good cause or a significant possibility of innocence.
One way a defendant establishes the good cause prong is by showing ineffective assistance
of counsel. People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995). “To establish ineffective
assistance of counsel, defendant must first show that (1) his trial counsel’s performance fell below
an objective standard of reasonableness under the prevailing professional norms, and (2) there is a
reasonable probability that, but for counsel’s error, the result of the proceedings would have been
different.” People v Uphaus, 278 Mich App 174, 185; 748 NW2d 899 (2008). “[T]he test for
ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective
assistance of trial counsel.” Id. at 186.
Defendant’s motion for relief from judgment asserted many reasons why defendant
believed he was entitled to a new trial. The trial court accepted some of these arguments, and
rejected others. Additionally, the trial court went beyond defendant’s arguments and found its
own reasons to grant defendant a new trial. As explained below, the trial court abused its discretion
in granting the motion for relief from judgment.
IV. TRIAL COURT’S ARGUMENTS
A. SPOLIATION
The prosecution first challenges the trial court’s conclusion that defendant was entitled to
relief because law enforcement mishandled evidence. In his motion for relief from judgment,
defendant argued that, during the initial investigation, law enforcement prematurely released the
scene of the murder to the victim’s family. According to defendant, this was an effort by law
enforcement to intentionally destroy potentially exculpatory evidence. The trial court concluded
that this argument had merit due to a “colossal failure in handling evidence” by the Ingham County
Sheriff’s Office. It noted that over the course of ten years, the Sheriff’s Office had been accused
of destroying or mishandling evidence. However, defendant did not raise this argument, and made
no claims against the Sheriff’s Office. Defendant’s allegations about spoliation related to actions
by the Lansing Police Department because that is the agency that investigated this case. The trial
court erroneously attributed to the Lansing Police Department unrelated allegations against the
Sheriff’s Office. Thus, the trial court’s findings as to this issue are clearly erroneous, and the trial
court abused its discretion in granting the motion for relief from judgment on the basis of
inaccurate facts that were also not argued by defendant.
B. JAIL UNIFORM
This issue concerns defendant’s third statement to police. Although defendant had made
two previous statements, he had not been informed of his Miranda warnings, so those statements
were suppressed. Before making his third statement, he was given his Miranda warnings and was
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wearing a jail uniform during this video-taped statement. Without any argument from defendant,
the trial court concluded that defendant’s confession was involuntary because defendant’s wearing
a jail uniform during his post-Miranda statement “had a coercive effect on [his] understanding and
decision[-]making regarding the waiver of his rights.” The prosecution argues defendant’s change
of clothes was not new evidence, and therefore cannot serve as grounds to grant relief from
judgment. We agree that the jail uniform was not new evidence under MCR 6.508(D)(2), nor is
there any indication in the record that defendant’s clothing had any effect on defendant’s
understanding of his rights. Also problematic is that defendant never raised this issue and the
record contains neither evidence nor argument that would support good cause for failing to raise
it. Therefore, defendant did not meet his burden establishing grounds for relief.
Even so, the trial court apparently thought this issue was significant enough to raise this
issue “of its own accord in the interests of justice and fairness.” Criminal defendants in Michigan
may be deprived of due process if they are compelled to be tried in jail attire. People v Shaw, 381
Mich 467, 474; 164 NW2d 7 (1969). Drawing a comparison to Shaw, the trial court concluded
that in this case, “[t]he jury was no longer impartial after footage of [d]efendant in the jail outfit
was viewed as they saw him dressed as a convict and not as someone presumed to be innocent.”
But the trial court’s reliance on Shaw was misplaced. Shaw held that criminal defendants
may be deprived of due process if, during trial, they are forced to wear a jail uniform in the
presence of the jury. Shaw, 381 Mich at 474. In this case, there is no evidence that defendant was
dressed in a jail uniform during his trial. By itself, the fact that defendant was wearing jail garb
during his police interview does not demonstrate a deprivation of due process. Moreover, the
video footage of defendant’s third statement was introduced at trial and available to defendant in
the first appeal, yet defendant never raised his attire as an issue in his prior appeal. Thus, this was
not new evidence, and it was therefore inappropriate for the trial court to consider it in the context
of defendant’s motion for relief from judgment. Accordingly, the trial court abused its discretion
in granting the motion for relief from judgment as to this issue.
V. DEFENDANT’S ARGUMENTS
The trial court also granted the motion for relief from judgment on the basis of arguments
actually presented in defendant’s motion. While we consider each argument, we conclude that
defendant failed to present sufficient evidence warranting relief.
A. PSYCHOLOGICAL EVALUATION
Defendant argued that he did not voluntarily waive his Miranda rights. The prosecution
asserts this argument was raised and rejected in defendant’s earlier appeal, and that Dr. Wendt’s
opinions in the psychological evaluation do not change this Court’s earlier conclusions regarding
the voluntariness of the statement at issue.
When deciding a motion for relief from judgment, one of the first questions a trial court
should ask is whether the defendant “alleges grounds for relief which were decided against the
defendant in a prior appeal.” MCR 6.508(D)(2). In defendant’s earlier appeal, he “contend[ed]
that his confession and waiver of his Miranda rights were involuntary and the admission of his
confession at trial violated his Due Process rights and Fifth Amendment right against self-
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incrimination.” Brown, unpub op at 5. Defendant specifically argued “that his confession and the
waiver of his Miranda rights w[ere] the result of police coercion, sleep deprivation, drug use, and
a preexisting physical injury, which resulted in an involuntary confession.” Id. Using a totality-
of-the-circumstances test, we concluded that “the trial court did not err in finding that defendant’s
third statement to the police was voluntary and admissible.” Id. at 6. We further stated that there
was “no indication that defendant’s alleged drug use interfered with his ability to assert his free
will.” Id.
In his motion for relief from judgment, defendant argued he was entitled to relief from
judgment because he was not provided a psychological evaluation regarding his mental state at the
time he made his third statement to the police. Defendant claims that the waiver of his Miranda
rights was ineffective because, when he made that statement, he was sleep-deprived and under the
influence of substances. Defendant’s supplemental brief in support of his motion for relief from
judgment underscored Dr. Wendt’s evaluation as evidence that his confession and waiver of his
Miranda rights were involuntary. The appellate record demonstrates that defendant’s present
argument regarding the voluntariness of his post-Miranda statement was raised and decided
against defendant in an earlier appeal.
We note, however, that Dr. Wendt’s report was not part of the record in the earlier appeal.
As such, the next question is whether this report is “new evidence” under MCR 6.508(D)(2). This
analysis generally requires a court to consider whether the defendant demonstrated that: “(1) the
evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered
evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered
and produced the evidence at trial; and (4) the new evidence makes a different result probable on
retrial.” People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003) (quotation marks and citation
omitted). But, in this case we need not analyze these factors because the burden was on defendant
to demonstrate Dr. Wendt’s report satisfied the newly-discovered evidence standard under MCR
6.508(D)(2). Defendant’s supplemental brief, which was filed after Dr. Wendt issued his report,
made no such argument.
The trial court nevertheless analyzed the issue, and engaged in extensive discussion
whether, under the circumstances surrounding his third statement to the police, defendant was
capable of waiving his rights under Miranda. The trial court concluded that, given defendant’s
state of mind at the time he made his statement to the police, he could not freely waive his rights.
However, the trial court’s analysis fails to recognize that this Court had already decided this same
issue in defendant’s earlier appeal. The sole question before the trial court should have been
whether Dr. Wendt’s report was “new evidence” under MCR 6.508(D)(2). Because defendant
failed to argue the factors for newly-discovered evidence, he could not meet his burden of
establishing that he was entitled to relief from judgment, and the trial court should have rejected
defendant’s arguments. As such, the trial court abused its discretion in granting relief from
judgment as to this issue.
B. ALLEGED SEIBERT VIOLATION
Defendant next argues appellate counsel was ineffective for failing to challenge the
admissibility of defendant’s third statement under Missouri v Seibert, 542 US 600; 124 S Ct 2601;
159 L Ed 2d 643 (2004). In Seibert, the United States Supreme Court struck down a police practice
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that involved first obtaining an un-Mirandized, inadmissible confession, then advising a suspect
of their Miranda warnings to obtain a second, admissible confession—colloquially, courts call this
an impermissible “two-step” interrogation process. Id. at 610-614. In evaluating the voluntariness
of a subsequent confession, Seibert developed a multi-factor voluntariness test. Id. at 615. These
factors include:
The completeness and detail of the questions and answers in the first round of
interrogation, the overlapping content of the two statements, the timing and setting
of the first and the second, the continuity of police personnel, and the degree to
which the interrogator’s questions treated the second round as continuous with the
first. [Id.]
At the hearing on defendant’s motion for relief from judgment, the trial court recognized
the potential Seibert issue, noting defendant’s third statement was given after two unwarned
statements to police. The trial court went on to state that it “[did not] know that Seibert was brought
to [the Court of Appeals’] attention.” In the order entered after the hearing, the trial court granted
defendant’s motion, in part, because “Seibert, factors two, four, and five inform this Court that the
Miranda warnings [given before the third statement] were ineffective.”
The trial court’s findings are incorrect. Indeed, this Court engaged in extensive analysis of
the potential Seibert issue. Brown, unpub op at 7-8. We concluded that the type of “two-step
interrogation process” that occurred in Seibert “did not occur in this case” and, therefore,
defendant’s waiver was not involuntary. Id. at 7. In evaluating defendant’s motion for relief from
judgment, the trial court should have recognized that the Seibert issue had been raised in the earlier
appeal and the trial court should not have granted relief on that basis.
C. MISTRIAL
Defendant also argued appellate counsel was ineffective for failing to raise potential
mistrial issues in the earlier appeal. His motion for relief from judgment was based, in part, on the
investigating detective’s testimony, which included facts that had been suppressed by the trial
court. Although the detective was able to correct his testimony, defendant argued that was not
enough, and a mistrial should have been declared, or in the alternative, an adequate curative
instruction should have been given.
Again, when considering motions for relief from judgment, courts should generally reject
claims that either were, or could have been, raised in an earlier proceeding. MCR 6.508(D)(3).
However, courts may deviate from this standard for good cause, MCR 6.508(D)(3)(a), and a
defendant can demonstrate good cause if he can show that appellate counsel was ineffective. Reed,
449 Mich at 378. In this case, defendant claimed his appellate counsel was ineffective for failing
to challenge the mistrial issue. To succeed, defendant must demonstrate his appellate counsel was
ineffective.
None of defendant’s arguments in connection with his motion for relief from judgment—
his original motion, his supplemental brief in support of the motion, and his statements at oral
argument—offered any explanation of the “objective standard of reasonableness” necessary to
determining whether counsel was effective. Likewise, he failed to analyze appellate counsel’s
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performance under this objective standard. In the absence of such explanation, a defendant’s
motion for relief from judgment must fail. MCR 6.508(D).
Even so, the trial court in this case provided extensive discussion explaining its belief that
defendant was deprived of effective assistance of appellate counsel regarding this issue. But, the
burden of proof was not on the trial court, it was on defendant. Thus, it was an abuse of discretion
for the trial court to grant the motion for relief from judgment without adequate argument by
defendant.
D. DIRECT APPEAL ERRORS
Defendant’s motion for relief from judgment further claimed that: (1) prior appellate
counsel was ineffective for failing to move for a Ginther4 hearing; (2) prior appellate counsel was
ineffective for failing to file a reply brief in the earlier appeal; and (3) prior appellate counsel was
ineffective for failing to timely file its brief on appeal, resulting in a waiver of oral argument. The
trial court erred when it partially relied on these arguments in granting the motion for relief from
judgment.
A defendant must show both good cause and actual prejudice if he could have raised an
issue in an earlier appeal but did not. MCR 6.508(D)(3). Defendant claimed these prongs were
satisfied because appellate counsel was ineffective. In this case, we need not resolve whether these
alleged failings by appellate counsel amounted to ineffective assistance of counsel because
defendant failed to establish actual prejudice. Actual prejudice means that “but for the alleged
error, the defendant would have had a reasonably likely chance of acquittal.” MCR
6.508(D)(3)(b)(i)(A). Defendant does not explain in his motion for relief from judgment how he
would have had a reasonable chance of acquittal had prior appellate counsel taken the steps
defendant alleges they failed to take. Although appellate counsel’s actions caused defendant to
lose out on some opportunities for argument, it does not follow that defendant was completely
deprived of presenting his case. Indeed, appellate counsel filed a brief on appeal and defendant
filed a Standard 4 brief. The trial court did not recognize defendant’s failure to present a prejudice
argument, did not address the actual prejudice prong in its ruling, and therefore abused its
discretion in granting defendant’s motion for a new trial.
E. ACTUAL INNOCENCE
Finally, defendant’s supplemental brief in support of his motion alleged that relief was
warranted because there was a reasonable possibility he was actually innocent of the crimes. “To
satisfy the ‘actual innocence’ standard, a defendant must show that it is more likely than not that
no reasonable juror would have found the defendant guilty beyond a reasonable doubt.” People v
Swain, 288 Mich App 609, 638; 794 NW2d 92 (2010) (quotation marks, citation, and alterations
omitted). While a defendant need not show with “absolute certainty” their guilt or innocence, this
is a “demanding standard and permits review only in ‘extraordinary’ cases.” Id. (citation omitted).
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Defendant’s assertion of actual innocence was predicated on his contention that he “has no
true recollection of committing the act and only provided a story of what some had told him
happened.” He emphasized Dr. Wendt’s opinion that his “condition rendered him vulnerable to
external influence and he stated that he based much of his account on what he had been told rather
than what he recollected.” Defendant also noted Dr. Wendt’s belief that others’ accounts of what
defendant told them “should be treated very skeptically.”
The trial court analyzed this argument, stating:
There was no other evidence presented, outside of Defendant’s statements
that would prove guilt in a substantial manner. Physical evidence that [d]efendant
was at the scene of the homicide was nonexistent. The only other evidence of
consequence was testimony of the detective, which should have been suppressed
under the fruit of the poisonous tree doctrine had the incriminating statements been
properly suppressed. Testimonies from the other witnesses were from parties who
had motive to assign blame to [d]efendant to avoid criminal liability themselves.
Again, the burden of proof was on defendant in this case. MCR 6.508(D). Defendant’s
assertion of actual innocence was premised on the credibility of his statements, and the testimonies
of other witnesses. Thus, the trial court’s analysis should have focused on these two arguments,
and its sua sponte rationale in support of defendant’s actual innocence claim is irrelevant.
The trial court disregarded defendant’s assertions about his own statements, noting that this
was the only evidence “that would prove guilt in a substantial manner.” Therefore, the only other
argument the trial court could consider in granting defendant’s motion for relief from judgment
was the testimony of the other witnesses at trial. The trial court noted that the witnesses’
testimonies were not reliable because they “had motive to assign blame to [d]efendant to avoid
criminal liability themselves.” Regardless, the trial court completely failed to account for the
jury’s role in the proceedings. “[I]t is the role of the jury . . . to determine the weight of the
evidence or the credibility of witnesses.” People v Eisen, 296 Mich App 326, 331; 820 NW2d 229(2012) (quotation marks and citation omitted). Standing alone, the fact that witnesses may have
had motive to lie does not give rise to the conclusion that defendant was actually innocent of the
offense—this is especially true given that the jury is charged with assessing a witness’s credibility.
Id. We conclude defendant failed to overcome the “demanding standard” showing actual
innocence and it was an abuse of discretion to grant relief on this basis.
Reversed and remanded for entry of an order denying the motion for relief from judgment.
We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Mark T. Boonstra
/s/ Thomas C. Cameron
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