Opinion
CIVIL CASE No. 00-CV-74240-DT.
October 30, 2000.
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO COMPLY WITH THE STATUTE OF LIMITATIONS
I. Introduction
Petitioner, an inmate at the Adrian Temporary Correctional Facility in Adrian, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that he is incarcerated in violation of his constitutional rights because his sentence is disproportionate and constitutes cruel and unusual punishment.
The petition for a writ of habeas corpus states that Petitioner was convicted of possession with intent to deliver less than 50 grams of cocaine in the Recorder's Court for the City of Detroit in 1997 and was sentenced to 8-40 years imprisonment. Petitioner filed an appeal with the Michigan Court of Appeals, which was denied on February 12, 1999. Petitioner did not file an application for leave to appeal with the Michigan Supreme Court. The present habeas petition, dated September 15, 2000, was received by this Court on September 22, 2000.
On September 28, 2000, this Court ordered Petitioner to show cause why his habeas petition should not be dismissed for failure to comply with the applicable one-year statute of limitations. Petitioner filed a reply to the show cause order on October 20, 2000, asserting that he did not file within the applicable time period because his appellate attorney did not advise him that he had 56 days to appeal to the Michigan Supreme Court, he was initially unaware of his federal remedy and the limitations period, he is a Cuban immigrant with a grade-school education, he speaks Spanish and has little knowledge of the English language, and he did not have sufficient legal assistance at his place of incarceration.
For the reasons discussed below, the Court now dismisses the petition for writ of habeas corpus for failure to comply with the applicable statute of limitations.
II. Discussion
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 application in this case because Petitioner filed his application 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 (Tarnow, 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).
Petitioner's conviction became final after the AEDPA's April 24, 1996 effective date. The Michigan Court of Appeals denied him relief on February 12, 1999. Petitioner then had, at most, 56 days in which to seek leave to appeal with the Michigan Supreme Court. See MCR 7.302(C)(3). Petitioner did not seek leave to appeal with the Michigan Supreme Court. Accordingly, Petitioner's convictions became final on April 9, 1999 — 56 days after the Michigan Court of Appeals issued their decision. Petitioner was thus required to file his federal habeas petition on or before April 9, 2000, excluding any time during which a properly filed application for state post-conviction or collateral review was pending in accordance with 28 U.S.C. § 2244(d)(2). According to the procedural history set forth in the habeas petition, however, Petitioner did not file any application for state post-conviction or other collateral review.
Petitioner was thus required to file his federal habeas petition by April 9, 2000. Petitioner did not file the instant habeas petition until, at the earliest, September 15, 2000 (the date upon which he signed the petition) — more than five months after the expiration of the one-year period. Thus, Petitioner's present habeas petition is 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., Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 617-19 (3rd Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); cert. denied, ___ U.S. ___, 119 S.Ct. 210 (1998); Thomas v. Straub, 10 F. Supp.2d 834, 835-36 (Duggan, E.D. Mich. 1998); Henderson v. Johnson, 1 F. Supp.2d 650, 654-56 (N.D. Tex. 1998). Petitioner, however, has failed to establish that the State created an obstacle to the filing of his application, that his claims are based upon newly-created rights or newly-discovered facts, or that the one-year period should otherwise be tolled due to extraordinary circumstances.
Petitioner asserts that his petition is untimely, in part, because his appellate attorney did not notify him that he had 56 days to seek leave to appeal with the Michigan Court of Appeals. Petitioner, however, does not indicate why this circumstance impeded his ability to seek federal habeas review within the one-year period. Furthermore, that 56-day period is not included in the one-year period since Petitioner's conviction did not become final until after the expiration of the time for seeking direct review.
Petitioner also asserts that he is a Cuban immigrant with a grade-school education and limited command of the English language, was unaware of the limitations period, and could not get sufficient legal assistance at his place of incarceration. The fact that Petitioner is Cuban with a limited education and knowledge of English, is proceeding without a lawyer, or may have been unaware of the limitations period does not warrant tolling. See 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); Henderson, 1 F. Supp.2d at 654-56 (extraordinary circumstances did not exist where petitioner relied on fellow inmate to submit petition and fellow inmate failed to do so and mislead petitioner); Nguyen v. S.M. Mervau, 1998 WL 556628, *2 (N.D. Cal. 1998) (petitioner's alleged lack of fluency in English and inability to find a jailhouse lawyer to assist him were not extraordinary circumstances to justify tolling limitations period). Petitioner has thus not established that extraordinary circumstances existed which caused him to file his habeas petition more than five months after the expiration of the limitations period.
III. Conclusion
This Court thus concludes that Petitioner has failed to file his petition for a writ of habeas corpus within the one-year statute of limitations and has not alleged extraordinary circumstances which caused him to file outside the applicable time frame.
Accordingly;
IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE for failure to file within the time allowed by the statute of limitations.