Opinion
Case No.: 02-10010-BC
March 13, 2003
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner John Johnson, presently confined at the Ryan Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed without the assistance of counsel, the petitioner challenges his conviction of one count of second-degree murder, Mich. Comp. Laws § 750.317, and one count of commission of a felony with the aid of a firearm ("felony-firearm"), Mich. Comp. Laws § 750.227b. The respondent has filed a motion to dismiss, contending that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). The Court agrees, and will dismiss the petition.
I.
The petitioner was convicted of these offenses in the Detroit Recorder's Court on October 18, 1988 and was sentenced on October 31, 1988. The petitioner's conviction was affirmed on appeal. People v. Johnson, 113808 (Mich.Ct.App. November 21, 1990), lv. denied, 437 Mich. 1056 (1991).
On November 12, 1998, the petitioner filed a post-conviction motion for relief from judgment with the trial court pursuant to Michigan Court Rule 6.500, et. seq., which the trial court denied. People v. Johnson, 88-3540 (Wayne County Circuit Court, Criminal Division, March 8, 2000). The Michigan appellate courts denied the petitioner leave to appeal. People v. Johnson, No. 232753 (Mich.Ct.App. April 25, 2001), lv. denied, 636 N.W.2d 527 (2001). The instant petition for writ of habeas corpus was signed and dated December 5, 2001, which is the prescriptive filing date in this Court pursuant to the "prison mailbox rule." See Neal v. Bock, 137 F. Supp.2d 879, 882 n. 1 (E.D.Mich. 2001).
II.
The respondent has filed a motion to dismiss the pending habeas petition as untimely. Title 28, § 2244 of the United States Code imposes a one-year limitation period within which habeas petitions challenging state court judgments must be filed. The petition now must be filed within one year 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). The court must dismiss a case where a petitioner for a writ of habeas corpus does not comply with the one-year statute of limitations. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000).
In the present case, the petitioner's direct appeal of his conviction became "final" ninety days after the Michigan Supreme Court denied the petitioner's application for leave to appeal on August 5, 1991. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The petitioner's judgment therefore became final on November 3, 1991, when he failed to file a petition for writ of certiorari with the United States Supreme Court. Isham, 226 F.3d at 694. Because the petitioner's conviction became final prior to the April 24, 1996, the date the statute of limitations was revised by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the petitioner had one year from this date to timely file a petition for habeas relief with the federal court. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Absent state collateral review, the petitioner would have been required to file his petition for writ of habeas corpus with this Court no later than April 24, 1997 in order for the petition to be timely filed. See id.
In the present case, the petitioner filed a post-conviction motion for relief from judgment with the state trial court on November 12, 1998. Title 28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute. Carey v. Saffold, 122 S.Ct. 2134, 2136-37 (2002). This tolling provision is applicable to state prisoners like the petitioner whose one year limitations period for seeking federal habeas relief began to run on the AEDPA's enactment date. Holloway v. Jones, 166 F. Supp.2d 1185, 1188 (E.D.Mich. 2001). 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 at 884. In this case, by the time that the petitioner had filed this post-conviction motion, the one year limitations period had already expired. A state court post-conviction motion that is filed following the expiration of the limitations period for seeking federal habeas relief cannot toll that period because there is no period remaining to be tolled. See Searcey v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).
In his response to the motion to dismiss, the petitioner contends that the Court should equitably toll the one year limitations period. The doctrine of equitable tolling does apply to the one-year limitations period for habeas corpus petitions. Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir.), cert. denied, 534 U.S. 1057 (2001). "The federal courts sparingly bestow equitable tolling. Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000) (citations omitted). When determining whether equitable tolling is appropriate, courts must consider:
"(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's 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 petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim." Dunlap, 250 F.3d at 1008.
The petitioner argues that he is entitled to equitable tolling of the limitations period because he mistakenly believed that he had one year following the conclusion of his state post-conviction proceedings to timely file his petition with this Court. The petitioner also appears to argue that his lack of education and knowledge of the law and his pro se status hampered his ability to ascertain, or properly understand, the AEDPA's requirements.
As an initial matter, this Court notes that a habeas petitioner is not entitled to equitable tolling of the statute of limitations due to a lack of academic and legal education. Turner v. Smith, 70 F. Supp.2d 785, 787 (E.D.Mich. 1999). Neither ignorance of the law, see Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D.Mich. 1998), nor a lack of professional legal assistance tolls the limitations period in 28 U.S.C. § 2244(d)(1). Henderson v. Johnson, 1 F. Supp.2d 650, 655-656 (N.D.Tex. 1998).
Furthermore, the Court cannot accept the petitioner's argument that the limitations period should be equitably tolled because the petitioner mistakenly believed that the one-year limitations period would begin to run anew following the denial of his application for post-conviction relief in the state courts. A habeas petitioner's ignorance as to the proper calculation of the limitations period for filing a federal habeas petition does not warrant equitable tolling. See Pearson v. North Carolina, 130 F. Supp.2d 742, 744 (W.D.N.C. 2001). Any miscalculation or misinterpretation by the petitioner of the plain language contained in § 2244(d)(2) would not constitute an extraordinary circumstance sufficient to warrant equitable tolling of the statute of limitations. See Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000).
As a related claim, the petitioner contends that he was misled by the language in several federal court cases which either implicitly or explicitly suggested that the one-year limitations period only began to accrue at the conclusion of state post-conviction proceedings. Although not referenced by the petitioner, the Court is aware that two district court cases have suggested that the one-year limitations period would not begin to run until the conclusion of collateral review in the state courts. See Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 1997) (finding habeas petition was not time barred when it was filed within one year after leave to appeal the denial of the petitioner's post-conviction motion had been denied); Martin v. Jones, 969 F. Supp. 1058, 1061 (M.D.Tenn. 1997) (stating in dicta that the one-year limitations period for filing a petition for writ of habeas corpus would not begin to run until after both direct and postconviction review had been exhausted). The petitioner also points to a footnote in Erdman v. Tessmer, 69 F. Supp.2d 955, 959, n. 4 (E.D.Mich. 1999), which suggested that the habeas petition was timely "because it was filed within one year of the date after Petitioner's appeal of his motion for relief from judgment became final." The flaw IN the petitioner's argument is that these cases were decided after — he one year limitations period had expired in the petitioner's case. As a result, the petitioner simply can not credibly allege that he was misled by these decisions into delaying the filing of either his federal habeas petition or his state post-conviction motion.
Finally, the petitioner is not entitled to equitable tolling of the limitations period because he has failed to show due diligence in seeking habeas relief given the amount of time that he waited to seek state post-conviction relief. See Cummings v. Yukins, 197 F. Supp.2d 785, 788 (E.D.Mich. 2002). In Neal v. Bock, 137 F. Supp.2d at 885, this Court held that a habeas petitioner was not entitled to equitable tolling of the limitations period where he failed to offer any reasons why he waited over six years following the denial of his direct appeal in the Michigan Supreme Court to file for state post-conviction relief or to seek federal habeas review of his conviction. Likewise, in this case, the petitioner is not entitled to equitable tolling where he waited seven years following the denial of his direct appeal in the Michigan Supreme Court to file his state post-conviction motion. Although the petitioner claims that he needed time to "spot issues," research the law, and present his claims to the state courts, the petitioner offers no explanation why it took him seven years to do so. Accordingly, the petitioner has failed to show that he acted with diligence in seeking either state post-conviction relief or in filing his petition for a writ of habeas corpus with this Court.
III.
The Court concludes that the petitioner failed to file his application for a writ of habeas corpus within the one-year limitations period established by 42 U.S.C. § 2244(d). The Court further concludes that the petitioner has failed to demonstrate any exceptional circumstances which would warrant equitable tolling of the limitations period.
Accordingly, it is ORDERED that the respondent's Motion to Dismiss [dkt #9] is GRANTED and the petition for writ of habeas corpus is DISMISSED.