Opinion
Case Number: 01-72461
January 28, 2002
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Edward Carmack, a state prisoner currently incarcerated at the Carson City Correctional Facility in Carson City, Michigan, has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Now before the Court is Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus. For the reasons set forth below, the Court grants the motion.
II. Procedural History
Following a bench trial in the Third Judicial Circuit Court, Petitioner was convicted of second-degree murder, assault with intent to commit murder, and felony firearm. On May 24, 1988, Petitioner was sentenced to thirty-five to eighty years imprisonment for the second-degree murder conviction, twenty to sixty years imprisonment for the assault with intent to commit murder conviction, and two years imprisonment for the felony firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals. On January 9, 1990, the Michigan Court of Appeals issued an opinion affirming Petitioner's convictions. People v. Carmack, No. 110798 (Mich.Ct.App. Jan. 9, 1990).
Petitioner filed an application for leave to appeal the Michigan Court of Appeals opinion in the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal. People v. Carmack, No. 88357 (Mich. Oct. 30, 1990).
On August 24, 1999, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion for relief from judgment. People v. Carmack, No. 87004722 (Third Judicial Circuit Court Sept. 20, 1999). Petitioner filed a motion for reconsideration of the trial court's order, which was also denied. People v. Carmack, No. 87004722 (Third Judicial Circuit Court Oct. 18, 1999).
Petitioner filed a delayed application for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal.People v. Carmack, No. 224008 (Mich.Ct.App. Aug. 21, 2000). He then filed an application for leave to appeal in the Michigan Supreme Court, which was also denied. People v. Carmack, No. 117640 (Mich. Feb. 26, 2001).
Petitioner filed the pending petition for a writ of habeas corpus on June 25, 2001.
III. Analysis
Respondent has filed a motion to dismiss on the ground that the petition for a writ of habeas corpus is barred from review because it is untimely. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA" or "the Act") applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Petitioner's application for habeas corpus relief was filed after April 24, 1996. Therefore, the provisions of the AEDPA, including the limitations period for filing an application for habeas corpus relief apply to Petitioner's application. Lindh v. Murphy, 521 U.S. 320, 337 (1997).
Among other amendments, the AEDPA amended 28 U.S.C. § 2244 to include a one-year limitations period within which habeas petitions challenging state court judgments must be filed. In most cases, a prisoner is required to file a federal habeas corpus petition within one year of completing direct review of the habeas claims. 28 U.S.C. § 2244 (d)(1)(A). Where a prisoner's conviction became final prior to the effective date of the AEDPA, the prisoner is permitted one year from the AEDPA's effective date to file a petition for habeas corpus relief in federal court. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999).
However, the time during which a prisoner seeks collateral review of a conviction does not count toward the limitations period. Section 2244(d)(2) provides:
The time during which a properly filed application for 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)(2).
In the pending case, Petitioner's conviction became final before the AEDPA's effective date, April 24, 1996. Therefore, absent state collateral review, Petitioner was required to file his application for habeas corpus relief by April 24, 1997, to comply with the one-year limitations period. Petitioner sought state collateral review of his conviction by filing a motion for relief from judgment in the trial court. However, he did not file his motion for relief from judgment until August 24, 1999. Thus, the limitations period commenced on April 24, 1996 and continued to run, uninterrupted, until it expired on April 24, 1997. Petitioner's motion for relief from judgment was filed over two years after the limitations period expired and, consequently, did not serve to toll the limitations period. Accordingly, his petition is untimely.
In his response to the Motion to Dismiss, Petitioner argues that his petition should not be dismissed as untimely because he is entitled to equitable tolling of the limitations period. The Sixth Circuit Court of Appeals has identified the following five factors to be considered in determining the appropriateness of equitably tolling a statute of limitations: (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 v. U.S., 250 F.3d 1001, 1008 (2001).
Petitioner contends that he is entitled to equitable tolling of the limitations period because initially it was unclear how courts would apply the one-year limitations period to prisoners whose convictions became final prior to the effective date of the AEDPA. While there may initially have been some uncertainty as to how federal courts in the Sixth Circuit would apply the AEDPA's one-year limitations period to those prisoners whose convictions became final prior to the enactment of the AEDPA, any such uncertainty was dispelled by the Sixth Circuit Court of Appeals decision in Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999). In Austin, the Court of Appeals held that, where a prisoner's conviction became final prior to the effective date of the AEDPA, the prisoner is permitted one year from the AEDPA's effective date to file a petition for habeas corpus relief in federal court. Austin was decided on December 28, 1999, approximately a year and a half before Petitioner filed the pending petition for a writ of habeas corpus. Thus, the Sixth Circuit Court of Appeals' application of the one-year limitations period to prisoners in circumstances similar to Petitioner's was clarified as of that date.
Petitioner's failure to file a petition for habeas corpus relief until approximately eighteen months after the Austin decision and until almost four months after the conclusion of collateral review in state court evidences a lack of diligence in pursuing his rights. Moreover, Petitioner provides no explanation as to why he remained ignorant of the limitations period. Therefore, the Court holds that he is not entitled to equitable tolling of the limitations period.
Finally, Petitioner claims that his petition should not be barred from review by the one-year limitations period because he is actually innocent. In Schlup v. Delo, 513 U.S. 298 (1995), the United States Supreme Court articulated the standard applicable to claims of actual innocence that are accompanied by claims of constitutional violations. To make a showing of actual innocence, "a petition must show that it is more likely than not that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt." Id. at 327. The Court further explained this standard as follows:
The . . . standard is intended to focus the inquiry on actual innocence. In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on "actual innocence" allows the reviewing tribunal to consider the probative force of relevant evidence that was either excluded or unavailable at trial. . . . The habeas court must make its determination concerning the petitioners s innocence in light of all the evidence, including . . . evidence tenably claimed to have been wrongly excluded or to have become available only after trial.
. . . .
. . . [A]ctual innocence does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.Id. (internal quotation omitted).
Petitioner does not present a credible claim of actual innocence. Petitioner provides no additional evidence to support his claim. Instead, he argues that the prosecutor failed to prove the intent element of second-degree murder. This claim was presented on direct review to the Michigan state courts. Petitioner fails to present any new evidence which would establish that no juror or judge, acting reasonably, would have found him guilty beyond a reasonable doubt.
Accordingly, Petitioner's application for a writ of habeas corpus is barred by the one-year statute of limitations.
IV. Conclusion
For the foregoing reasons, the Court concludes that the habeas corpus petition was filed outside the one-year limitations period prescribed in 28 U.S.C. § 2244 (d)(1)(A). Further, the Court concludes that Petitioner has failed to establish that he is entitled to equitable tolling of the limitations period.
Accordingly, IT IS ORDERED that the Respondent's Motion to Dismiss is GRANTED.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 2244 (d)(1)(A).