Opinion
Case Number: 01-73757
May 1, 2002
OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY DISPOSITION
I. Introduction
Petitioner Walter Givans, through his attorney R. Steven Whalen, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the Cooper Street Correctional Facility in Jackson, Michigan. Now before the Court is Respondent's Motion for Summary Disposition and Dismissal of Petition for Writ of Habeas Corpus. For the reasons set forth below, the Court grants the motion.
II. Procedural History
Following a jury trial in Recorder's Court for the City of Detroit, Petitioner was convicted of manslaughter and possession of a firearm during the commission of a felony. On September 13, 1994, he was sentenced to ten to fifteen years imprisonment for the manslaughter conviction and two years imprisonment on the felony-firearm conviction, to be served consecutively.
Petitioner filed an appeal of right in the Michigan Court of Appeals, through appointed counsel, presenting a single claim for relief, that his sentence violated the principle of proportionality. The Michigan Court of Appeals affirmed Petitioner's sentence. People v. Givans, No. 180404 (Mich.Ct.App. Dec. 1, 1995).
Thereafter, Petitioner retained counsel. Retained counsel filed a motion for reconsideration in the Michigan Court of Appeals, along with a motion to permit additions to the grounds for appeal. On April 12, 1996, these pleadings were returned to retained counsel for failure to pay the filing fees and correct defective pleadings.
In 1998, Petitioner retained a different attorney, who filed a Motion for Relief from Judgment in the trial court on February 26, 1999, presenting the same claims presented in the pending petition. The trial court denied the Motion for Relief from Judgment on June 14, 1999. Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal.People v. Givans, No. 222390 (Mich.Ct.App. May 4, 2000). Petitioner next filed a delayed application for leave to appeal in the Michigan Supreme Court, which was denied. People v. Givans, 630 N.W.2d 333 (May 29, 2001).
Finally, on October 2, 2001, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. Petitioner was denied his Fourteenth Amendment right of due process where the prosecution failed to disclose material evidence favorable to the defense.
II. The trial court erred in failing to grant a new trial where newly discovered evidence showed that the convictions were obtained on false sworn testimony of a police agent/informant, in violation of the constitutional right of due process.
III. Petitioner was denied due process where his conviction was obtained on false and misleading sworn testimony elicited by the prosecutor.
IV. Petitioner was denied his federal constitutional right to the effective assistance of counsel where defense counsel failed to investigate and effectively advance the suppression of police agent Joe Twilley's testimony.III. Analysis
Respondent has filed a Motion for Summary Disposition 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. A prisoner must file a federal habeas corpus petition within one year of the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. (d)(1)(A). Where a prisoner's conviction became final prior to the effective (late 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 (luring 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 February 26, 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 one year after the limitations period expired and, consequently, did not serve to toll the limitations period.
Petitioner concedes that his petition is untimely, but claims that 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's argument that he is entitled to equitable tolling of the limitations period rests on his claims that his retained counsel thwarted his attempts to present his claims in state court and that he has diligently pursued his rights at every turn. Petitioner's appointed counsel filed an appeal of right in the Michigan Court of Appeals challenging Petitioner's sentence. The Michigan Court of Appeals affirmed Petitioner's sentence. Petitioner, through his family, then retained attorney Paul Curtis, who filed a motion for reconsideration in the Michigan Court of Appeals and a motion to permit additional grounds for appeal. However, Attorney Curtis failed to pay the required filing fee. Therefore, on April 12, 1996, the motions were returned to Attorney Curtis.
Petitioner then filed a request for investigation of Attorney Curtis with the Attorney Grievance Commission. On January 25, 1999, a Consent Order of Discipline was entered, pursuant to which Attorney Curtis pleaded no contest to allegations of professional misconduct in connection with Petitioner's case. Attorney Curtis was suspended from the practice of law for forty days.
Petitioner claims that Attorney's Curtis's professional misconduct coupled with Petitioner's claimed diligence in pursuing his rights warrants equitable tolling of the limitations period. This Court is not persuaded that equitable tolling is warranted in this case. While it does appear that Attorney Curtis neglected Petitioner's case on direct review, that does not excuse Petitioner's failure to timely file a habeas corpus petition. The state court returned Attorney Curtis's motion for reconsideration and motion to permit additional grounds for relief on April 12, 1996. Petitioner did not file a motion for relief from judgment until almost three years later, on February 26, 1999. Petitioner's claim that he was unable to afford to hire an attorney to file a motion for relief from judgment prior to that time does not entitle him to equitable tolling. Petitioner could have filed a motion for relief from judgment without the assistance of an attorney. To the extent that Petitioner claims that he did not have the knowledge to file a motion for relief from judgment without an attorney, such a claim also is insufficient. "Ignorance of the law does not constitute an extraordinary circumstance justifying equitable tolling." Neloms v. McLemore, 2000 WL 654942, *2 (E.D. Mich. May 22, 2000), citing Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); see also Washington v. Elo, 2000 WL 356353, *6 (E.D. Mich. Feb. 29, 2000) (holding that "neither excusable neglect nor ignorance of the law alone are sufficient to invoke equitable tolling"); Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D. Mich. 1998) (same); 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). Therefore, Petitioner's ignorance of the law is insufficient to warrant equitable tolling of the limitations period.
Moreover, the Michigan Supreme Court denied leave to appeal the trial court's denial of Petitioner's motion for relief from judgment on May 29, 2001. Petitioner filed his habeas corpus petition on October 2, 2001. Petitioner fails to provide sufficient explanation as to why he waited over four months to file his habeas petition in this Court, thereby further evidencing a failure to exercise diligence in pursuing his rights.
The Court concludes that Petitioner has failed to establish circumstances sufficient to warrant equitable tolling of the limitations period. Accordingly, his petition is barred by the one-year limitations period.
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 equitable tolling of the limitations period is justified.
Accordingly, IT IS ORDERED that Respondent's Motion for Summary Disposition is GRANTED and the matter is DISMISSED WITH PREJUDICE.