Opinion
Civil Case No. OO-CV-74647-DT
January 31, 2002
OPINION AND ORDER OF DISMISSAL
Nelson Cobas, ("petitioner"), an inmate at the Lakeland Correctional Facility in Coldwater, Michigan, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence on one count of first degree murder, M.C.L.A. 750.316; M.S.A. 28.548. Respondent has filed a motion for summary judgment, contending that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). Petitioner has filed a response to the motion for summary judgment. For the reasons stated below, the petition for writ of habeas corpus is DISMISSED pursuant to the one year statute of limitations contained in 28 U.S.C. § 2244(d).
I. Background
Petitioner was convicted of first degree murder in the Oakland County Circuit Court in 1991. His direct appeals ended on September 13, 1995, when the Michigan Supreme Court denied him leave to appeal. People v. Cobas, 450 Mich. 862; 539 N.W.2d 375 (1995). On April 10, 1997, petitioner filed a motion for Nunc Pro Tunc in the Oakland County Circuit Court. On September 15, 1997, the Oakland County Circuit Court denied the motion. Petitioner did not appeal the denial of this motion, but instead filed a motion for relief from judgment on May 18, 1999. The trial court denied the motion on June 23, 1999, because M.C.R. 6.502(G)(1) limits a defendant to one post-conviction motion in Michigan. On May 25, 2000, the Michigan Court of Appeals dismissed petitioner's appeal, on the ground that they lacked jurisdiction to hear an appeal from a second motion for relief from judgement. People v. Cobas, 226810 (Mich.Ct.App. May 25, 2000). Petitioner's application for leave to appeal was rejected by the Michigan Supreme Court as being untimely filed on August 3, 2000. See affidavit of Corbin R. Davis, Clerk of the Michigan Supreme Court, dated December 20, 2000. The instant habeas petition was signed and dated October 3, 2000.
Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas. petition on October 3, 2000, the date that it was signed and dated, despite the existence of some evidence that it may have been filed later with this Court. See Neal v. Bock, 137 F. Supp.2d 879, 882, fn. 1 (E.D. Mich. 2001)(Lawson, J.).
II. Discussion
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000) (quoting Fed.R.Civ.P. 56(c)). To defeat a motion for summary judgment, the non-moving party must set forth specific facts sufficient to show that a reasonable factfinder could return a verdict in his favor Sanders, 221 F.3d at 851. The summary judgment rule applies to habeas proceedings. Harris v. Stegall, 157 F. Supp.2d 743, 746 (E.D. Mich. 2001)(Steeh, J.).In the present case, summary judgment is appropriate, because the petition for writ of habeas corpus was not filed within the one year statute of limitations. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year statute of limitations shall apply to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. The one year statute of limitation 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.28 U.S.C. § 2244(d)(1).
Because petitioner filed this petition after the effective date of the habeas reform law, the requirements of the AEDPA, including the statute of limitations, would be applicable to his case. Lindh v. Murphy, 521 U.S. 320, 336 (1997). A federal court will dismiss a case where a petitioner for a writ of habeas corpus does not comply with the one year statute of limitations. Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D. Mich. 1998)(Duggan, J.).
In the present case, petitioner's direct appeals ended on September 13, 1995, when the Michigan Supreme Court denied him leave to appeal. Petitioner's conviction would become final, for the purposes of the AEDPA's limitations period, on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Petitioner's judgment therefore became final on December 13, 1995, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas v. Straub, 10 F. Supp.2d at 835. However, because petitioner's conviction became final prior to the April 24, 1996 enactment date of the AEDPA, petitioner had one year from this date to timely file a petition for habeas relief with the federal court. Porter v. Smith, 126 F. Supp.2d 1073, 1074-1075 (E.D. Mich. 2001)(Gadola, J.). Petitioner therefore had until April 24, 1997 to timely file his habeas petition with this Court, unless the one year limitations period was somehow tolled.
On April 10, 1997, petitioner filed a motion for Nunc Pro Tunc in the Oakland County Circuit Court. 28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly filed application for state postconviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute. Matthews v. Abramajtys, 39 F. Supp.2d 871, 874 (E.D. Mich. 1999)(Tarnow, J.). However, although the time during which a properly filed application for collateral review is pending in the state courts is excluded from the one year limitations period, the limitations period is not reset upon the conclusion of state collateral review. Neal v. Bock, 137 F. Supp.2d 879, 884 (E.D. Mich. 2001)(Lawson, J.). Thus, although the filing of the motion for relief from judgment may have tolled the running of the one-year statute, it would not cause the statute to begin running anew when the state court denied the motion. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001). When petitioner filed this motion, he had only fourteen days remaining with which to file his petition in compliance with the statute of limitations. On September 15, 1997, the Oakland County Circuit Court denied the motion.
Petitioner did not appeal the denial of this motion, but instead filed a motion for relief from judgment on May 18, 1999. The trial court denied the motion on June 23, 1999, because M.C.R. 6.502(G)(1) limits a defendant to one post-conviction motion in Michigan. On May 25, 2000, the Michigan Court of Appeals dismissed petitioner's appeal, on the ground that they lacked jurisdiction to hear an appeal from a second motion for relief from judgement. Petitioner's application for leave to appeal was rejected by the Michigan Supreme Court as being untimely filed on August 3, 2000. Even if the Court gives petitioner the benefit of all of the above court dates and tolls the limitations period for the entire time that petitioner was seeking various forms of state post-conviction relief petitioner only had fourteen days remaining from the time that the Michigan Supreme Court rejected his untimely application for leave to appeal, or until August 17, 2000, to timely file the instant petition with this Court. Since the instant habeas petition was not filed until October 3, 2000, the petition is untimely because it was filed more than fourteen days after the Michigan Supreme Court denied petitioner's application for leave to appeal.
Petitioner does not deny that his petition was untimely filed, but argues that the limitations period should be tolled because of the fact that he was born and raised in Cuba and is unable to understand, read, or write the English language. Petitioner did have an interpreter for his trial, as verified by an Order for Interpreter signed by Judge Gene Schnelz of the Oakland County Circuit Court. However, petitioner has also submitted a two page letter from himself to his attorney for his direct appeal, dated April 1, 1993, in which he discussed several complex legal issues involving his criminal case in great detail with his attorney in fluent English. However, it is unclear whether another inmate wrote this letter for him. In fact, at the end of the letter, petitioner requests that his appellate attorney make arrangements to have an interpreter with him when the attorney came to visit petitioner. Petitioner has also attached to his habeas petition several police reports from the Kalamazoo Township Police Department from the time of his arrest for the offense that he is challenging in his petition on December 13, 1990. In one of these reports, a Sergeant Paul Marlett indicates that he spoke with petitioner at the time that petitioner was booked at the Kalamazoo County Jail. There is no indication in this report that Marlett had difficulty speaking with petitioner, that petitioner had difficulty understanding Marlett, or that Marlett needed to request the services of a Spanish speaking interpreter. Nonetheless, petitioner claims that he did not complete his G.E.D. in English until December 4, 2000.
The one year limitations period under the AEDPA is considered a statute of limitations which is subject to equitable tolling, and is not a jurisdictional prerequisite which would bar review by the federal courts if not met. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001). In Dunlap, the Sixth Circuit adopted the test for equitable tolling set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) and indicated that five factors should be used to determine whether it would be appropriate to equitably toll the statute of limitations in a habeas case:
(1) the petitioners lack of notice of the filing requirement;
(2) the petitioners lack of constructive knowledge of the filing requirement;
(3) diligence in pursuing one's rights;
(4) absence of prejudice to the respondent; and,
(5) the petitioners reasonableness in remaining ignorant of the legal requirement for filing his claim.Dunlap, 250 F.3d at 1008.
The Sixth Circuit also noted that the doctrine of equitable tolling should be used sparingly." Dunlap, 250 F.3d at 1008-1009. The Sixth Circuit concluded that "[a]bsent a satisfactory explanation for his failure to timely file his habeas petition", a petitioner would fail to exercise due diligence in pursuing his claim, and thus would not be entitled to equitable tolling of the limitations period. Id. at p. 1010. The burden is on a habeas petitioner to show that he or she is entitled to the equitable tolling of the one year limitations period. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
As one court recently noted, district courts have unanimously held that the lack of English proficiency is insufficient to justify the tolling of the statute of limitations. Tan v. Bennett, 2001 WL 823869, * 2 (S.D.N.Y. July 20, 2001) (collecting cases). Only one of these cases, however, is published. In Silvestre v. United States, 55 F. Supp.2d 266, 268 (S.D.N.Y. 1999), the district court declined to toll the limitations period for filing a motion to vacate sentence because of the inmate's alleged difficulty with English and his inability to find legal assistance in preparing his petition, finding that the "difficulty with English is not coterminous with an inability to understand English." Id. A fair reading of Silvestre is that a judge might be able to distinguish between cases where an inmate merely had problems with the English language, as opposed to cases where there is a complete lack of understanding of the language. Indeed, many of the unpublished cases that have rejected equitable tolling have involved situations where the petitioner did not allege a complete inability to speak English, but only alleged difficulties with the English language. See e.g. Nguyen v. Hickman, 2001 WL 58969, * 2 (N.D. Cal. January 11, 2001) (rejecting equitable tolling of limitations period because of the petitioner's contention that he did not speak English well); Mejia v. Pliler, 2001 WL 125307, * 3 (N.D. Cal. February 13, 2001) (petitioner not entitled to equitable tolling because of his "limited grasp of the English language"); Gutierrez v. Elo, 2000 WL 1769559, * 3 (E.D. Mich. October 30, 2000)(Friedman, J.) (fact that petitioner is a Cuban with limited education and limited command of the English language insufficient to justify the tolling of the limitations period); Roman v. Artuz, 2000 WL 1201392, * 2 (S.D.N.Y. August 22, 2000) (petitioner not entitled to tolling because of his limited knowledge of English); United States v. Maldanado, 1997 WL 360932, *3 (E.D. Pa. June 26, 1997) (defendant not entitled to equitable tolling merely because he did not speak English well).
Other unpublished cases have appeared not to make that distinction and have declined to equitably toll the limitations period because of a petitioner's inability to speak the English language. See United States v. Cordova, 202 F.3d 283, 1999 WL 1136759, * 1 (10th Cir. December 13, 1999) (lack of familiarity with the English language does not rise to the level of a rare and exceptional circumstance that would equitably toll the AEDPA's limitations period); Perez v. Johnson, 2001 WL 804524, * 4 (N.D. Tex. July 6, 2001)(petitioner's lack of familiarity with English language is not a rare and exceptional circumstance that would justify tolling, because the inability to read or speak the English language is a disability common to prisoners in the U.S. prison system); See also Mendez v. Artuz, 2000 WL 991336, * 2 (S.D.N.Y. July 19, 2000) (employing same rationale); Nguyen v. Mervau, 1998 WL 556628, * 2 (N.D. Cal. August 24, 1998) (lack of fluency in English language does not justify tolling).
This Court believes that a distinction can be made between a habeas petitioner who is completely or substantially unable to speak or understand the English language and a petitioner who merely alleges difficulties with or a limited knowledge of the English language. The Court believes that equitable tolling of the one year limitations period would be appropriate in those situations where a habeas petitioner could establish that he or she was completely or substantially unable to read, write, or understand the English language and was unable to obtain any assistance from fellow inmates or others who understood his or her language and could assist the petitioner in the preparation of a habeas petition or other forms of post-conviction relief However, the Court does not believe that equitable tolling of the limitations period would be appropriate in those situations where the petitioner merely alleged a limited command of the English language and is able to obtain assistance in the preparation of any post-conviction relief
In the present case, petitioner is not entitled to the equitable tolling of the limitations period because he has failed to show that he was completely or substantially unable to understand the English language during the four year period following the enactment of the AEDPA's limitations period in which he was pursing various forms of post-conviction relief in the state courts and then attempting to seek habeas relief with this Court. Moreover, even if petitioner had difficulties understanding the English language, he is unable to show that this prevented him from filing his habeas petition on time. As far back as 1993, petitioner wrote a detailed letter to his appellate attorney in English, in which he discussed complex legal issues in great detail. If petitioner wrote this letter himself, it would obviously refute his claim that he does not understand the English language. However, even if he did not write this letter, it shows that petitioner had access to another prisoner who could communicate for him in regards to his legal issues. Moreover, even after petitioner's direct appeals ended in 1995, petitioner was able to file two different post-conviction motions in the state courts, as well as the instant habeas petition, either by preparing them himself or by obtaining the assistance of fellow inmates. Indeed, in an affidavit that he submitted with his response to the motion for summary judgment, petitioner indicates that he had the assistance of fellow inmates in the preparation of his various pro per applications until he obtained his G.E.D. in English. Because petitioner has not shown he was completely or substantially unable to read, write or understand and because Petitioner apparently had the assistance of others to help him prepare and submit his various forms of state and federal post-conviction relief petitioner is not entitled to equitable tolling because of his allegedly limited knowledge of the English language.
Affidavit in Support of Petitioners Answer to Respondent's Motion
III. Order
Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1) is DISMISSED with prejudice.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (Docket No. 11, filed April 18, 2001) is GRANTED.
IT IS FURTHER ORDERED that Petitioner's Motion to Appoint Counsel (Docket No. 20, filed April 30, 2001) is DENIED as MOOT.