Opinion
Case No. 02-10129-BC
March 17, 2003
OPINION AND ORDER OF DISMISSAL
The petitioner, Andre White, has filed an application for the writ of habeas corpus under 28 U.S.C. § 2254. Also pending before the Court is the respondent's motion to dismiss the habeas petition as time-barred. For the reasons set forth below, the Court has concluded that the respondent's motion shall be granted and the habeas petition must be dismissed for failure to comply with the statute of limitations.
I.
The petitioner was convicted in 1991 of second-degree murder, Mich. Comp. Laws § 750.317, larceny over $100, Mich. Comp. Laws § 750.356, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. The trial court sentenced the petitioner to two years in prison for the felony firearm conviction, followed by concurrent terms of twenty-five to thirty-seven and one-half years for the murder conviction and two and one-half to five years for the larceny conviction.
The Michigan Court of Appeals affirmed the petitioner's convictions and sentence in an unpublished opinion. See People v. White, No. 143945 (Mich.Ct.App. Aug. 13, 1993). The Michigan Supreme Court denied leave to appeal. See People v. White, 444 Mich. 981; 518 N.W.2d 485 (1994) (table).
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted. The AEDPA established a one-year period of limitation for prisoners who attack their state court convictions under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d). The petitioner filed a motion for relief from judgment on June 17, 1999. The trial court denied the motion, and both state appellate courts denied leave to appeal the trial court's decision. See People v. White, No. 225900 (Mich.Ct.App. Aug. 9, 2000); People v. White, 464 Mich. 860; 627 N.W.2d 606 (2001) (table). The habeas petition is dated April 11, 2002.
Subsection (d) reads as follows:
(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).
II.
"A motion to dismiss based on the expiration of the statute of limitations is analyzed under [Federal] Rule [of Civil Procedure] 12(b)(6)." Moseke v. Miller and Smith, Inc., 202 F. Supp.2d 492, 501 (E.D.Va. 2002). Rule 12(b)(6) authorizes federal courts to dismiss a pleading for "failure to state a claim upon which relief can be granted." "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "What that means in the statute of limitations context is that dismissal is appropriate only if a complaint clearly shows the claim is out of time." Harris v. New York, 186 F.3d 243, 250 (2d Cir. 1999).
III.
Prisoners, like the petitioner, whose convictions became final before the AEDPA was enacted, have one year from April 24, 1996, or until April 24, 1997, to file their habeas petitions. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir.), cert. denied, 123 S.Ct. 699 (2002); Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999), overruled on other grounds, 530 U.S. 1257 (2000). The petitioner's convictions became final in 1994, but he did not file his habeas petition until April of 2002. Consequently, the habeas petition is barred by the one-year statute of limitations, absent tolling.
A.
A properly filed motion for post-conviction relief tolls the statute of limitations. 28 U.S.C. § 2244(d)(2). However, the petitioner filed his motion for relief from judgment on June 17, 1999. Because the one-year period of limitations had already run by then, his motion did not affect the limitations period. Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002). Filing the motion did not restart the limitations period. Id. (citing Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.), cert denied, 534 U.S. 905 (2001)).
B.
Equitable tolling applies to the one-year period of limitation for habeas corpus petitions, Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir.), cert. denied, 534 U.S. 1057 (2001), but "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). Courts must consider the five factors set forth in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988), when determining whether equitable tolling is appropriate. Dunlap, 250 F.3d at 1009. These factors 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." Id. at 1008. This list of factors is not comprehensive; on the other hand, each factor may not be relevant in all cases. Cook, 295 F.3d at 521. "The decision whether to equitably toll a period of limitations must be decided on a case-by-case basis." Id.
The petitioner has not alleged that he was unaware of the statute of limitations or that his failure to meet the deadline arose from circumstances beyond his control, and it does not appear that he was diligent in pursuing his claims. He waited over three years after the AEDPA was enacted to file his motion for relief from judgment. The Court therefore concludes that this is not an appropriate case for equitable tolling.
IV.
For the reasons given above, the petitioner has failed to show compliance with the statute of limitations.
Accordingly, it is ORDERED that the respondent's motion to dismiss [dkt #14] is GRANTED, and the application for a writ of habeas corpus is DISMISSED.
JUDGMENT
In accordance with the Opinion and Order entered on this date, IT IS ORDERED AND ADJUDGED that the respondent's Motion to Dismiss is GRANTED, and the Petition for Writ of Habeas Corpus is DISMISSED.