Opinion
No. 00-CV-73676-DT.
December 21, 2001.
OPINION AND ORDER OF SUMMARY DISMISSAL
Amy Ellen Nowak, ("Petitioner"), presently confined at the Scott Correctional Facility in Plymouth, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her pro se application, Petitioner challenges her conviction on one count of second degree murder, MICH. COMP. LAWS § 750.549; one count of kidnaping, MICH. COMP. LAWS § 750.349; and one count of armed robbery, MICH. COMP. LAWS § 750.529. At the time that the petition was filed, Petitioner also filed a motion to toll the limits of 28 U.S.C. § 2244(d)(1) and to grant her leave to file the petition for writ of habeas corpus. Respondent has now 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). For the reasons stated below, Petitioner's application for a writ of habeas corpus shall be dismissed.
I. Background
On November 23, 1987, Petitioner pleaded guilty to second degree murder, kidnaping, and armed robbery in the St. Clair County Circuit Court. On January 19, 1988, she was sentenced to life imprisonment on the second degree murder count, and received concurrent sentences of twenty five to fifty years and seven to twenty years on the kidnaping and armed robbery counts. Petitioner's direct appeals with the Michigan courts ended on February 28, 1992, when the Michigan Supreme Court denied Petitioner leave to appeal. People v. Nowak, 439 Mich. 948 (1992).
At some point thereafter, Petitioner filed a post-conviction motion for relief from judgment with the St. Clair County Circuit Court pursuant to M.C.R. 6.500, et seq. Neither party indicates when the motion was filed, but Petitioner indicates that the motion was denied by the trial court on January 8, 1997. Although it is unclear when the Michigan Court of Appeals denied leave to appeal, Petitioner's post-conviction proceedings ended in the Michigan courts on December 30, 1998, when the Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Nowak, 459 Mich. 935 (1998).
Petitioner filed her application for writ of habeas corpus on August 16, 2000. At the time that she filed her application for writ of habeas corpus, Petitioner also filed a motion to toll the one year limitations period found in 28 U.S.C. § 2244(d)(1). In that motion, Petitioner acknowledges that her petition was untimely. However, Petitioner asserts that because of emotional trauma that she was suffering from, as well as difficulties that she was having adjusting to the prison environment, she was unable to file her application for writ of habeas corpus within the applicable one year period. Specifically, Petitioner claims that in 1998, she suffered an emotional breakdown due to a number of deaths and illnesses in her family. Petitioner further alleges that she was treated by mental health professionals at the Scott Correctional Facility and was prescribed psychotropic medications. Petitioner has attached documentation from mental health professionals at the Scott Correctional Facility in support of her argument. Petitioner contends that her mental and emotional difficulties support the equitable tolling of the one year limitations period.
II. Discussion
The petition for writ of habeas corpus must be dismissed because it has not been 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 her case. Lindh v. Murphy, 521 U.S. 320, 336; 117 S. Ct. 2059, 2068; 138 L.Ed.2d 481 (1997). A federal court will dismiss a case where a petitioner seeking 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).
In the present case, Petitioner's direct appeals in the Michigan courts ended on February 28, 1992, when the Michigan Supreme Court denied her application for leave to appeal. Petitioner's conviction became final, for purposes of § 2244(d)(1), when the ninety day time period for filing a petition for writ of certiorari in the United States Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Petitioner's judgment therefore became final on May 28, 1992, when she failed to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas v. Straub, 10 F. Supp. 2d at 835. Nonetheless, because Petitioner's conviction became final prior to the effective date of the AEDPA, Petitioner would have had one year from the date of that act to timely file her petition with this Court. A habeas petitioner whose state court proceedings were completed prior to the effective date of the habeas reform law generally has one year from April 24, 1996, the effective date of the AEDPA, to file his or her petition for writ of habeas corpus with the federal court. Brown v. O'Dea, 187 F.3d 572, 576-577 (6th Cir. 1999). Petitioner therefore had until April 24, 1997 to timely file her habeas petition with this Court, unless the one year limitations period was somehow tolled.
At some point in time, Petitioner filed a post-conviction motion for relief from judgment with the St. Clair County Circuit Court. 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. Corbin v. Straub, 156 F. Supp.2d 833, 836 (E.D. Mich. 2001); Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999). This tolling provision is applicable to state prisoners like Petitioner whose one year limitations period for seeking federal habeas relief began to run on the AEDPA's enactment date. Lucas v. Carter, 46 F. Supp.2d 709, 711 (N.D. Ohio 1999). Neither Petitioner nor Respondent indicate when the motion for relief from judgment was filed. However, Respondent does not argue in the motion to dismiss that any time had elapsed under the one year statute of limitations prior to the filing of this motion for relief from judgment. For purposes of the motion to dismiss, this Court assumes that Petitioner had the entire one year remaining under the limitations period to file her petition with this Court following the completion of her state court post-conviction proceedings. The tolling of the AEDPA's one year statute of limitations therefore ended in this case when the Michigan Supreme Court denied Petitioner's application for leave to appeal the denial of her motion for relief from judgment on December 30, 1998. Hudson v. Jones, 35 F. Supp. 2d at 988-989.
Petitioner does not dispute that her petition, filed on August 16, 2000, is untimely. However, she asserts that the limitations period should be equitably tolled because of the mental and emotional problems that she was suffering from while incarcerated. 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 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 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 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.
In the present case, Petitioner urges this Court to equitably toll the limitations period because of the fact that she had emotional problems and was receiving mental health treatment while incarcerated. Where a habeas petitioner's mental competence is at issue and the record indicates a "genuine basis for concern," it is proper for a district court to toll the AEDPA's limitations period, at least until a district court makes a competency evaluation. See Calderon v. U.S. Dist. Court for Cent. Dist. of California, 163 F.3d 530, 541 (9th Cir. 1998). However, a habeas petitioner must allege more than the "mere existence of physical or mental ailments" to invoke the equitable tolling of the AEDPA's statute of limitations. Rhodes v. Senkowski, 82 F. Supp.2d 160, 173 (S.D.N.Y. 2000). A habeas petitioner has the burden of showing that mental health problems rendered him or her unable to file a habeas petition during the one year limitations period. Id.
In the present case, Petitioner has failed to show that the mental health problems that she suffered from rendered her incapable of filing her habeas petition during the one year limitations period. Although Petitioner attaches a number of documents from mental health professionals at the Scott Correctional Facility in support of her argument that the limitations period should be tolled, the evaluations of Petitioner contained in these mental health reports actually defeat her argument. It is true that these reports indicate that Petitioner was under stress and was prescribed psychotropic medications. However, none of these evaluations establish that Petitioner lacked the ability to file her habeas petition within the one year limitations period.
An evaluation from September 2, 1998 indicated that although Petitioner had not been sleeping well, she was sleeping better as a result of receiving medications. The report also indicated that Petitioner no longer felt stressed or angry and was feeling relaxed now that she was in administrative segregation. The report further noted that Petitioner was able to concentrate and had been reading books. A second report from December 30, 1998 indicated that Petitioner had stopped taking her medications in the second week of November, 1998, because of adverse side effects. The report indicated that Petitioner was depressed, crying, and not sleeping well. However, this report also indicated that Petitioner was still able to concentrate and further noted that Petitioner was not feeling as stressed and was able to control her anger. A report dated March 18, 1999 indicated that Petitioner was taking her medications regularly and was not feeling "really stressed or angry." The report indicated that Petitioner expressed a desire of attending cooking school. Most significantly, the report indicated that Petitioner was "better able to concentrate now." A report from June 10, 1999 indicated that Petitioner was still taking her medications and was able to sleep. A report from January 20, 2000 indicated that in the previous ninety day period, Petitioner's medications had been tapered off. Finally, a report from March 8, 2000 indicated that Petitioner was alert and oriented, denied suicidal or homicidal ideation, or any psychotic symptoms. That report indicated that medication was discontinued for Petitioner in October of 1999. The report found Petitioner's speech to be "clear, coherent, and goal directed." The report found no retardation on Petitioner's part and found that Petitioner functioned in the average range of intellectual functioning with intact recent and remote memory. This report acknowledged that Petitioner's insight and judgment were limited. Finally, the report indicated that there was no evidence to support a diagnosis of a formal thought disorder, major affective disorder, or organicity. Petitioner was diagnosed with having an Antisocial Personality Disorder.
The evaluations are attached to petitioner's motion as Exhibit A.
Upon reviewing the records submitted by Petitioner, this Court does not have a "genuine basis for concern" about Petitioner's mental competence so as to toll the AEDPA's limitations period. Calderon, 163 F.3d at 541. In Nichols v. Dormire, 11 Fed. Appx. 633, 634 (8th Cir. 2001), the Eighth Circuit held that a prison inmate's alleged mental impairment did not justify the equitable tolling of the one year limitations period, where during the applicable time frame, Petitioner lived in the general prison population, was employed at the prison's factory, appeared coherent and alert at all times, did not suffer from auditory or visual hallucinations, was not suicidal or homicidal, and was capable of registering a written complaint with prison officials.
In the present case, the evidence submitted by Petitioner indicates that she was able to concentrate and read books. Petitioner offers no evidence to rebut the finding in her discharge report that she was coherent and alert. Petitioner has submitted no evidence that she was suicidal, homicidal, or suffered from hallucinations. There is no evidence that Petitioner was not oriented as to time, place, or person. While the Court is sympathetic with Petitioner's emotional difficulties, there is simply no evidence to suggest that these problems rendered her incapable of filing her habeas petition in compliance with the one year statute of limitations. Accordingly, Petitioner is not entitled to equitable tolling of the limitations period. Because the petition was not filed in compliance with the one year statute of limitations, the case is subject to dismissal.
III. ORDER
Accordingly, the Court DISMISSES WITH PREJUDICE the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1).