Opinion
No. 00-CV-73313-DT
February 14, 2001
OPINION AND ORDER GRANTING MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner, an inmate at the Scott Correctional Facility in Plymouth, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that she is incarcerated in violation of her constitutional rights. Petitioner was convicted of second-degree murder following a jury trial in the Recorder's Court for the City of Detroit in 1990 and was sentenced to 20-30 years imprisonment.
This matter is before the Court on Respondent's motion to dismiss the habeas petition for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244 (d)(1). For the reasons set forth below, this Court concludes that Respondent's motion should be granted and that the habeas petition should be dismissed as untimely.
II. Procedural History
Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed her conviction and sentence. People v. Bunnell, No. 130974 (Mich.Ct.App. July 8, 1992) (unpublished, per curiam). Petitioner filed an application for leave to appeal with the Michigan Supreme Court which was denied. People v. Bunnell, No. 94653 (Mich. Dec. 30, 1992).
Petitioner filed a motion for relief from judgment with the trial court on June 12, 1996. The trial court denied the motion. People v. Bunnell, No. 90-000288 (Recorder's Ct. Oct. 30, 1996). Petitioner subsequently filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Bunnell, No. 200680 (Mich.Ct.App. Nov. 12, 1998). Petitioner also filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Bunnell, No. 113819 (Mich. July 27, 1999).
Petitioner filed the present federal petition for writ of habeas corpus, dated July 26, 2000, on that same date. Petitioner asserts that she is entitled to habeas relief on the following grounds: (1) the trial court failed to instruct the jury on the defense theory, (2) there was insufficient evidence to convict, (3) the verdict was against the great weight of the evidence, (4) she was denied the effective assistance of trial and appellate counsel, and (5) the trial judge erred at sentencing. Respondent filed the motion to dismiss the petition for failure to comply with the one-year statute of limitations on February 2, 2001. Petitioner filed reply to the motion on February 9, 2001.
III. Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996. The AEDPA governs the filing date for the habeas application in this case because Petitioner filed his application after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Among other things, the AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Matthews v. Abramaflys, 39 F. Supp.2d 871, 872 (E.D. Mich. 1999). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244 (d)(1)(A). The revised statute provides that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(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;
(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.
(2) The 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 shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244 (d).
Petitioner's conviction became final before the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final prior to the AEDPA's effective date are given a one-year grace period in which to file their federal habeas petitions. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Accordingly, Petitioner was required to file her federal habeas petition on or before April 24, 1997, excluding any time during which a properly filed application for state post-conviction or collateral review was pending in accordance with 28 U.S.C. § 2244 (d)(2).
Petitioner filed her state court motion for relief from judgment on June 12, 1996. At that juncture, 49 days of the one-year grace period had expired. Petitioner then pursued her state court remedies until the Michigan Supreme Court denied leave to appeal the denial of her motion for relief from judgment on July 27, 1999. The AEDPA's one-year statute of limitations period was thus tolled from June 12, 1996 to July 27, 1999 while Petitioner's motion for relief from judgment was properly filed and pending. The AEDPA's limitations period is only tolled while a prisoner has a properly filed post-conviction motion under consideration. 28 U.S.C. § 2244 (d)(2); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir. 2000); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); see also Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999).
Once the Michigan Supreme Court denied Petitioner's application for leave to appeal the denial of her motion for relief from judgment, Petitioner had 316 days remaining before the one-year period expired. Contrary to Petitioner's assertion, the limitations period did not begin to run anew after the completion of his post-conviction proceedings. See, e.g., Cromwell v. Keane, 33 F. Supp. 2 d 282, 285 (S.D.N.Y. 1999); Gray v. Walters, 26 F. Supp.2d 771, 772 (D. Md. 1998). Petitioner was thus required to file her federal habeas petition by June 8, 2000. Petitioner did not file the instant habeas petition until July 26, 2000 (the date upon which she signed the petition) — more than six weeks after the expiration of the one-year period. Thus, Petitioner's present habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244 (d).
Several courts have concluded that the limitations period is not a jurisdictional bar and may be subject to equitable modifications such as tolling. See, e.g., Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 617-19 (3rd Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); Thomas v. Straub, 10 F. Supp.2d 834, 835-36 (E.D. Mich. 1998). Petitioner, however, has not alleged any extraordinary circumstances which caused her to file the instant petition more than six weeks after the expiration of the one-year limitations period.
IV. Conclusion
This Court thus concludes that Petitioner failed to file her petition for writ of habeas corpus within the one-year grace period and has not alleged any extraordinary circumstances which caused her to file outside the applicable time frame.
Accordingly;
IT IS ORDERED that Respondent's motion to dismiss is GRANTED and that the petition for writ of habeas corpus is DISMISSED for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244 (d)(1).