Opinion
Civil Action No. 00-CV-74833-DT
June 20, 2001
OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Harold Ross, a state prisoner currently in custody at the Lakeland Correctional Facility in Coldwater, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. Petitioner was convicted of two counts of criminal sexual conduct following two jury trials in the Recorder's Court for the City of Detroit in 1988. He was initially sentenced to concurrent terms of 75-150 years imprisonment, but that sentence was later reduced to 50-100 years imprisonment. This matter is before the Court on Respondent's motion for summary judgment seeking dismissal of the petition for failure to comply with the statute of limitations. For the reasons set forth below, Respondent's motion is GRANTED and the petition for writ of habeas corpus is DISMISSED.
II. Procedural History
Following re-sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed his convictions and sentence. People v. Ross, Nos. 127996, 130070 (Mich.Ct.App. April 15, 1992). Petitioner did not seek review of this decision with the Michigan Supreme Court. On March 28, 1998, Petitioner filed a motion for relief from judgment with the trial court, which was denied. People v. Ross, Nos. 87-010299, 97-010594 (Wayne Co. Cir. Ct. May 18, 1998). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Ross, No. 212309 (Mich.Ct.App. April 5, 1999). Petitioner then filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Ross, No. 114569 (Mich. Oct. 26, 1999).
Petitioner filed the present petition for writ of habeas corpus, dated October 20, 2000, on November 9, 2000, asserting claims of ineffective assistance of appellate counsel, prosecutorial misconduct, and a Brady violation. On May 8, 2001, Respondent filed a motion for summary judgment seeking dismissal of the habeas petition because it was filed outside the one-year statute of limitations established by 28 U.S.C. § 2244 (d)(l). Petitioner has not filed a reply to the motion.
III. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 10-132, 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). 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. Abramajtys, 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)(l)(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).
In this case, Petitioner's convictions 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. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Accordingly, Petitioner was required to file his 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 his state court motion for relief from judgment on May 18, 1998. Thus, the one-year limitations period had expired before Petitioner filed his application for state post-conviction review. A state court post-conviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Thus, Petitioner's post-conviction state court proceedings did not toll the running of the statute of limitations. Further, Petitioner does not assert that the State created an impediment to filing his habeas petition or that his claims are based upon newly-created rights or newly-discovered facts. His habeas petition is thus barred by the statute of limitations set forth in 28 U.S.C. § 2244 (d).
The United States Court of Appeals for the Sixth Circuit has recently determined that the one-year limitations period is subject to equitable tolling. In Dunlap v. United States, ___ F.3d ___, 2001 WL 473063 (6th Cir. May 7, 2001), the court held that the limitations period set forth in 28 U.S.C. § 2254 and 2255 is not a jurisdictional bar and may be equitably tolled. The court also ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test are:
(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, 2001 WL 473063 at *5. In Dunlap. the habeas petition was filed two months after the one year period expired. The court found that the petitioner did not provide a satisfactory explanation for failing to timely file the petition and concluded that he failed to exercise due diligence in pursuing his claim and was not entitled to equitable tolling of the limitations period. Id. at *8.
In this case, Petitioner sets forth no circumstances which caused him to file his state court motion for relief from judgment more than one-year after the expiration of the one-year grace period. The fact that Petitioner is proceeding without a lawyer or may have been unaware of the limitations period does not warrant tolling. See, e.g., Sperling v. White, 30 F. Supp.2d 1246, 1254 (C.D. Cal. 1998) (citing cases establishing that ignorance of the law, illiteracy, and lack of legal assistance do not constitute extraordinary circumstances). Further, Petitioner has not shown diligence in seeking habeas relief given that he filed his state court motion for relief from judgment six years after the end of his direct appeals and then waited an additional year once those proceedings were concluded to file his federal petition.
IV. Conclusion
Based on the foregoing analysis, the Court concludes that Petitioner failed to file his habeas petition within the one-year limitations period established by 28 U.S.C. § 2244 (d) and that the statute of limitations precludes federal review of the petition.
Additionally, before Petitioner may appeal this Court's dispositive decision, a certificate of appealability must issue. 28 U.S.C. § 2253 (c)(l)(a); Fed.R.App.P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). When a federal district court denies a habeas claim on procedural grounds without addressing the claim's merits, a certificate of appealability should issue, and an appeal of the district court's order may be taken, if the petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, ___ U.S. ___, 120 S.Ct. 1595, 1604 (2000). When a plain procedural bar is present and the district court is correct to invoke it to dispose of the matter, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed. In such a case, no appeal is warranted. Id. The Court is satisfied that jurists of reason could not find this Court's procedural ruling debatable. No certificate of appealability is warranted in this ease nor should Petitioner be granted leave to proceed on appeal in forma pauperis. Fed.R.App.P. 24(a).
Accordingly;
IT IS ORDERED that Respondent's Motion for Summary Judgment is GRANTED and that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED and leave to proceed on appeal in forma pauperis is DENIED.