Opinion
No. 02-70348-DT
January 30, 2003
OPINION
Petitioner Kevin Lamont Davis, a state prisoner currently confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed though counsel this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. In his brief in support of his habeas petition, Petitioner raises claims of 1) prosecutorial misconduct, 2) insufficient evidence, 3) improper and prejudicial admission of prior bad acts testimony, and 4) improper scoring of petitioner's crime severity and disproportionate sentence of twenty-two and a half to fifty years. (Pet.'s Br. at i-ii). For the reasons set forth below, the Court dismisses the petition for writ of habeas corpus for failure to comply with the one-year statute of limitation set forth at 28 U.S.C. § 2244(d).
A different list of claims appears on pages 3-4 of Petitioner's Petition for Writ of Habeas Corpus ("Petition"), including a claim that "imposition of life imprisonment on petitioner's second degree murder conviction was grossly disproportionate." A check of the Michigan Department of Corrections ("MDOC") Offender Tracking Information System indicates that Petitioner Kevin Lamont Dennis was sentenced to twenty-two and a half to fifty years for second degree murder. Further, Petitioner's claims as set forth in the brief correspond to the claims presented to the Michigan Court of Appeals in his appeal of right. while those set forth in his petition do not. People v. Dennis, No. 196699. 1997 WL 33334410 (Mich.Ct.App. Nov. 14, 1997) ( per curiam).
Following a jury trial, Petitioner was convicted of second-degree murder, M.C.L. § 750.317, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. Petitioner was sentenced on April 16, 1996, to the prison terms set forth above.
The Michigan Court of Appeals affirmed Petitioner's second-degree murder and felony firearm convictions in his appeal as of right on November 14, 1997. People v. Dennis, No. 196699, 1997 WL 33334410 (Mich.Ct.App. Nov. 14, 1997)( per curiam). The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Dennis, No. 111220, 459 Mich. 869, 586 N.W.2d 89 (1998). Petitioner did not seek a writ of certiorari in the United States Supreme Court.
On August 31, 1999, Petitioner filed a motion for relief from judgment in the trial court and on October 7, 1999, the trial court denied Petitioner's motion for relief from judgment. On April 24, 2000, the Michigan Court of Appeals denied Petitioner's delayed application for leave to appeal the trial court's denial of his motion for relief from judgment for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D). People v. Dennis, No. 223366 (Mich.Ct.App. Apr. 24, 2000). Petitioner's motion for rehearing was denied on May 26, 2000. On January 30, 2001, the Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Dennis, No. 117231, 463 Mich. 960, 623 N.W.2d 243 (2001).
The present petition for a writ of habeas corpus was filed by counsel on January 29. 2002.
Discussion
A. Statutory Tolling of the Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA governs the filing date for this action because Petitioner filed his petition after the AEDPA's effective date. See 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 limitation 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:
(d)(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 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).
Petitioner's convictions became final after the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final after the AEDPA's effective date have a one-year statutory limitation period within which to file their federal habeas petitions, unless the limitation period is tolled. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). The AEDPA's limitation period is only statutorily tolled while a prisoner has a properly filed state post-conviction motion or other state collateral attack under consideration. See 28 U.S.C. § 2244(d)(2).
The Michigan Supreme Court last affirmed Petitioner's convictions and sentences in a direct appeal on September 28, 1998. People v. Dennis, 459 Mich. 869, 586 N.W.2d 89 (1998). Petitioner did not seek a writ of certiorari in the United States Supreme Court. Therefore, his convictions became final, for the purposes of the AEDPA's limitation period, on the date that the 90 day time period for seeking certiorari with the United States Supreme Court expired. See Sup. CT. R. 13(1); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Therefore, the one-year statute of limitation began running on December 28, 1998, 90 days after the Michigan Supreme Court denied Petitioner's leave to appeal.
The statute of limitation ran for two-hundred and forty-six (246) days until Petitioner filed a state post-conviction motion for relief from judgment on August 31, 1999. Consequently, when Petitioner filed his state post-conviction motion, only one-hundred and nineteen (119) days remained of the one-year limitation period. See also, Grayson v. Grayson, 185 F. Supp.2d 747, 750 (E.D. Mich. 2002); Smith v. Stegall, 141 F. Supp.2d 779, 782-783 (E.D. Mich. 2001).
Title 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 toward the period of limitation contained in the statute. Matthews v. Abramaltys, 39 F. Supp.2d 871, 874 (E.D. Mich. 1999). However, although a properly filed application for collateral reveiw tolls the one-year limitation period, the limitation period is not reset upon the conclusion of state collateral review. Neal v. Bock, 137 F. Supp.2d 879, 884 (E.D. Mich. 2001). Thus, Petitioner did not have one year following the denial of his post-conviction motion for relief from judgment to file his habeas petition with this Court, because the one-year limitation period under the AEDPA begins to run at the conclusion of the direct review of a habeas petitioner's conviction, and not on the date which a habeas petitioner has exhausted all of his state post-conviction remedies. See Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).
The Michigan Supreme Court finalized denial of Petitioner's motion for relief from judgment by denying leave to appeal from the trial court's denial of the motion on January 30, 2001. People v. Dennis, 463 Mich. 960, 623 N.W.2d 243 (2001). Because Petitioner's motion for relief from judgment was properly filed and he timely sought leave to appeal its denial in the Michigan appellate courts, the statute of limitations remained tolled throughout the adjudication of his motion for relief from judgment, that is, until January 30, 2001. Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002) (holding that, where properly and timely filed at all stages of the state process, intervals between the stages of the adjudication of a petitioner's state post-conviction collateral attack are tolled for purposes of the habeas corpus statute of limitations). The statute of limitations therefore began running again on January 31, 2001, the day after the Michigan Supreme Court finalized adjudication of Petitioner's motion for relief from judgment. Abela v. Martin, 309 F.3d 338, 344-47 (6th Cir. 2002) (citing Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001)).
When the limitation period began running again on January 31, 2001, Petitioner had one hundred and nineteen days (119) remaining in the statutory limitation period in which to timely file his habeas petition. However, the petition was not filed until January 29, 2002. Therefore, the petition is barred by the statute of limitation, unless Petitioner is entitled to equitable tolling of the limitation period.
B. Equitable Tolling of the Statute of Limitations
The Court recognizes that the one-year limitations period is subject to equitable tolling. See Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001). However, neither counsel nor Petitioner have presented to this Court any reason why the Petition was filed belatedly, or why Petitioner may be entitled to equitable tolling of the limitations period.
Respondent filed a Motion for "Summary Disposition" and Dismissal of Petition for Writ of Habeas Corpus on August 8, 2002, arguing that the one-year statute of limitations bars Petitioner's claims. No response has been filed in opposition to this motion. If Petitioner had any basis for believing that equitable tolling applies in this case, such a claim should have been filed in a timely response to Respondent's Motion for "Summary Disposition."