Opinion
Civil Case No. 01-CV-71287-DT
May 9, 2001
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO COMPLY WITH THE STATUTE OF LIMITATIONS
I.
Petitioner Kimberly Simmons, an inmate at the Scott Correctional Facility in Plymouth, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that she is incarcerated in violation of her constitutional rights. The habeas petition states that Petitioner was convicted of first-degree felony murder and arson of a dwelling house following a jury trial in the Recorder's Court for the City of Detroit in 1988. She was sentenced to life imprisonment without parole on the murder conviction and 10-20 years imprisonment on the arson conviction. Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed the murder conviction and sentence, but reversed the arson conviction and sentence. People v. Simmons, No. 111548 (Mich.Ct.App. Jan. 27, 1992). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Simmons, No. 93425 (Mich. June 29, 1992).
On June 16, 1997, Petitioner filed a motion for relief from judgment with the trial court, which was denied on September 10, 1997. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Simmons, No. 213773 (Mich.Ct.App. Feb. 19, 1999). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Simmons, No. 114982 (Mich. Feb. 29, 2000).
The present petition for writ of habeas corpus, dated February 25, 2001, was initially filed in the United States District Court for the Western District of Michigan on February 27, 2001. The petition was subsequently transferred to this District and filed on April 3, 2001. On April 4, 2001, this Court ordered Petitioner to show why this matter should not be dismissed for failure to comply with the applicable statute of limitations. Petitioner filed a response to that order on May 2, 2001, claiming that her conviction did not become final until completion of state post-conviction remedies and that the limitations period should be tolled due to delays in obtaining transcripts for use in seeking post-conviction relief in the state courts.
II.
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 petition in this case because Petitioner filed her petition 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. 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)(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).
As an initial matter, Petitioner asserts that her convictions did not become final until February 29, 2000 — the date upon which the Michigan Supreme Court denied her application for leave to appeal the denial of her motion for relief from judgment. However, for purposes of a collateral attack, a conviction becomes final at the conclusion of direct review. See Johnson v. United States, ___ F.3d ___, 2001 WL 369844 (6th Cir. April 16, 2001) (citing United States v. Torres, 211 F.3d 836, 839 (4th Cir. 2000)). Direct review for a prisoner who files a petition for certiorari with the United States Supreme Court concludes when the Court either denies the petition or decides the case on the merits. Id. Petitioner did not file a petition for certiorari with the United States Supreme Court on direct review of her convictions. Consequently, for purposes of the AEDPA her convictions became final when her time for seeking such review expired. See Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001). Petitioner had 90 days after the Michigan Supreme Court denied leave to appeal her convictions in which to seek a writ of certiorari with the United States Supreme Court. See Rule 13(1), Supreme Court Rules. With regard to the statute of limitations, therefore, her convictions became final on September 29, 1992 — well 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 her federal habeas petition on or before April 24, 1997, excluding any time during which a properly filed application for state postconviction or collateral review was pending in accordance with 28 U.S.C. § 2244(d)(2).
Petitioner did not file her motion for relief from judgment with the state trial court until June 16, 1997. Thus, the one-year limitations period had expired before Petitioner sought state postconviction 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 state post-conviction proceedings did not toll the running of the statute of limitations. 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); see also Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999). Further, Petitioner does not assert that the State created an impediment to filing her habeas petition or that her claims are based upon newly-created rights or newly-discovered facts. Her habeas petition is thus 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., Craddock v. Mohr, 2000 WL 658023, *2 (6th Cir. May 8, 2000); accord Harris, 209 F.3d at 328-29; Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000); Sandvik v. United States, 177 F.3d 1269, 1270 (11th Cir. 1999); Taliani v. Chrans, 189 F.3d 597, 597 (7th Cir. 1999).
Petitioner asserts that delays in receiving copies of her transcripts constituted extraordinary circumstances which caused her to file her state post-conviction motion after the expiration of the statute of limitations. However, it is well-settled that a prisoner has no constitutional right to a transcript on collateral review of a conviction, see United States v. MacCollom, 426 U.S. 317 (1976), and the lack of a transcript itself is not an extraordinary circumstance which justifies equitable tolling of a period of limitation. See Fadayiro v. United States, 30 F. Supp.2d 772, 779-80 (D. N.J. 1998); United States v. Van Poyck, 980 F. Supp. 1108, 1110-11 (C.D. Cal. 1997). The record reveals that Petitioner retained counsel to assist her in seeking state post-conviction relief, and she has not shown that she or counsel was prevented from preparing the necessary state court pleadings or using the mail during the relevant time period. See United States v. Ramsey, 1999 WL 718079, *2 (E.D. Pa. Aug. 26, 1999) (unpublished). Petitioner has thus not established that extraordinary circumstances prevented her from pursuing state post-conviction relief or filing a federal habeas petition.
Petitioner is also not entitled to equitable tolling of the statute because she has failed to show that she acted with reasonable diligence in pursuing habeas relief. To establish the extraordinary circumstances necessary to equitably toll the AEDPA's statute of limitations, a habeas petitioner must prove that the cause of his delay was both beyond his control and unavoidable even with diligence. Hizbullahankhamon v. Walker, 105 F. Supp.2d 339, 344 (S.D.N.Y. 2000); see also Craddock, supra, slip op. at *2 (equitable tolling not applicable when prisoner does not diligently pursue habeas relief). Petitioner has not done so in this case. She does not explain why she waited more than four years to seek state post-conviction relief (from June, 1992 until November, 1996), or why she waited one full year after the Michigan courts denied that relief to file her federal habeas petition. Because Petitioner has not adequately explained her failure to diligently seek state postconviction relief or to prepare her habeas petition, she is not entitled to equitable tolling of the limitations period.
III.
This Court thus concludes that Petitioner has failed to file this petition for writ of habeas corpus within the one-year statute of limitations and has not shown that extraordinary circumstances caused her to file outside the applicable time frame.
Accordingly;
IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED for failure to comply with the statute of limitations set forth at 28 U.S.C. § 2244(d).
JUDGMENT
The above-entitled matter having come before the Court on a Petition for Writ of Habeas Corpus, Honorable Avern Cohn, United States District Judge, presiding, and in accordance with the Opinion and Order entered on MAY 09 2001, 2001;
IT IS ORDERED AND ADJUDGED that the Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.