Opinion
Case No. 01-CV-70230-DT
March 8, 2002
OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING THE HABEAS CORPUS PETITION
This matter is pending before the Court on petitioner Holland Hardaway's habeas corpus petition and respondent Kenny Robinson's motion for summary judgment. A detailed procedural history follows as background for Respondent's argument that the one-year statute of limitations for habeas petitions expired before Petitioner initiated this action.
I. Background
In 1994, a Recorder's Court jury in Detroit, Michigan convicted Petitioner of second-degree murder, MICH. COMP. LAWS § 750.317, and possession of a firearm while committing a felony, MICH. COMP. LAWS § 750.227b. On June 8, 1994, Petitioner pleaded guilty to being a habitual offender, fourth offense, MICH. COMP. LAWS § 769.12. The trial court then sentenced Petitioner to five years in prison for the felony firearm conviction and to a consecutive term of forty to eighty years in prison for the murder conviction.
On July 12, 1994, Petitioner filed a claim of appeal through counsel. His appeal was dismissed on August 18, 1995, for failure to file a timely appellate brief. See People v. Hardaway, No. 177099 (Mich.Ct.App. Aug. 18, 1995).
Over nineteen months later, Petitioner filed a delayed application for leave to appeal. The Michigan Court of Appeals dismissed the case because more than twelve months had elapsed between the judgment of sentence and the delayed application for leave to appeal. See People v. Hardaway, No. 202045 (Mich.Ct.App. Sept. 25, 1997). The court of appeals did not consider the time during which Petitioner's appeal of right was pending when it calculated the 12-month deadline for seeking leave to appeal. See id.
Petitioner then applied for leave to appeal in the Michigan Supreme Court, which denied leave because it was "not persuaded that the questions presented should be reviewed . . . ." People v. Hardaway, No. 110824 (Mich.Sup.Ct. Sept. 29, 1998). The supreme court went on to say that:
[t]he Court of Appeals lacked the authority to grant the defendant's late delayed application for leave to appeal. MCR 7.205(F)(3). The defendant may file a motion for relief from judgment pursuant to MCR Chapter 6.500 and argue that his first appellate attorney's neglect of the appeal of right establishes the required 'good cause' for failing to raise his current appellate issues in that appeal of right. See MCR 6.508(D)(3)(a) and People v. Reed, 449 Mich. 375 (1995).Id.
On December 21, 1998, Petitioner signed and dated a motion for relief from judgment. The motion and supporting brief were received in the trial court on December 22, 1998, and denied on August 4, 1999. Petitioner appealed the trial court's decision, but the Michigan Court of Appeals denied his delayed application "for lack of merit in the grounds presented." People v. Hardaway, No. 222000 (Mich.Ct.App. March 30, 2000). On December 12, 2000, the Michigan Supreme Court denied Petitioner's subsequent application for leave to appeal. See People v. Hardaway, No. 116903 (Mich.Sup.Ct. Dec. 12, 2000).
Petitioner filed his habeas corpus petition through counsel on January 17, 2001. The grounds for relief are that: (1) the trial court gave a coercive deadlocked jury instruction; (2) defense counsel was ineffective because he (a) did not object to the trial court's refusal to read back testimony and (b) did not file a timely appellate brief; (3) the trial court erroneously denied the jury's request for a re-reading of testimony; and (4) the prosecutor (a) made an argument unsupported by the evidence and (b) cross-examined Petitioner about his girlfriend's arrest.
Respondent argues that the habeas petition was not filed within one year of the expiration of the deadline for seeking direct review of the conviction. Petitioner replies that he was the victim of ineffective assistance of counsel and that the period of limitation should be equitably tolled.
II. Discussion
Summary judgment must be granted if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). At issue here is the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA"). The one-year period of limitation runs 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.28 U.S.C. § 2244(d)(1).
Petitioner is not relying on a new constitutional right or newly discovered facts, and there was no state-created impediment to filing a timely application. Consequently, the statute of limitations began to run when Petitioner's judgment of conviction "became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
A. Direct Review and Expiration of the Statute of Limitations
In Michigan, criminal defendants generally have one year from the date of sentencing to file an application for leave to appeal. Mich. Ct. R. 7.205(F)(3). Petitioner filed a claim of appeal thirty-three days after he was sentenced. Following the dismissal of his appeal of right on August 18, 1995, Petitioner had 332 days (one year less 33 days) in which to seek leave to appeal in the Michigan Court of Appeals. Petitioner did not pursue an appeal during those 332 days, and on July 15, 1996, the one-year period expired for seeking leave to appeal in the Michigan Court of Appeals. Petitioner's conviction became final on July 15, 1996, because his ability to pursue a direct appeal expired then. Wheeler v. Jones, 226 F.3d 656, 659-60 (6th Cir. 2000), cert. denied, 532 U.S. 1068 (2001).
The federal statute of limitations began to run on July 16, 1996, the day after Petitioner's conviction became final. Fed.R.Civ.P. 6(a);Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000). It was not tolled between the expiration of the state appellate deadline and the subsequent filing of an untimely application for leave to appeal. Allen v. Mitchell, 276 F.3d 183, 185 (4th Cir. 2001).
The limitation period first stopped running 252 days later when Petitioner filed his untimely application for leave to appeal in the Michigan Court of Appeals. It was tolled until September 29, 1998, when the Michigan Supreme Court denied leave to appeal. 28 U.S.C. § 2244(d)(2); Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.), cert denied, ___ U.S. ___ 122 S.Ct. 237 (2001); Allen, 276 F.3d at 185-86. The statute did not begin to run anew when the state supreme court denied Petitioner's delayed application for leave to appeal. Searcy, 246 F.3d at 519. Instead, the period of limitation resumed running on September 30, 1998.
The limitation period stopped running 83 days later on December 22, 1998, when Petitioner filed his motion for relief from judgment. 28 U.S.C. § 2244(d)(2). It was tolled until December 12, 2000, when the state courts concluded their review of Petitioner's motion. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); Swartz v. Meyers, 204 F.3d 417, 420 (3d Cir. 2000). The clock was not reset, and the period of limitation did not begin to run anew, when the state courts concluded their review of Petitioner's post-conviction motion. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir.), cert. denied, ___ S.Ct. ___, 2002 WL 233083 (U.S. Feb. 19, 2002) (No. 01-6749).
The limitation period stopped running for the last time on January 17, 2001, when Petitioner filed his habeas corpus petition. The period of limitation ran for a total of 370 days or more than one year. It ran:
-252 days between July 15, 1996, when Petitioner's conviction became final, and March 25, 1997, when he filed a delayed application for leave to appeal in the Michigan Court of Appeals;
-83 days between September 29, 1998, when the Michigan Supreme Court denied leave to appeal, and December 22, 1998, when Petitioner filed his motion for relief from judgment; and
-35 days between December 12, 2000, when the Michigan Supreme Court denied leave to appeal, and January 17, 2001, when Petitioner filed his habeas petition.
B. Equitable Tolling
Equitable tolling applies to the one-year limitation period for habeas corpus petitions. Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir.), cert. denied, ___ U.S. ___ 122 S.Ct. 649 (2001). "The 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 following factors when deciding whether equitable tolling is appropriate: "(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, 250 F.3d at 1008. Because prejudice to the respondent is not an independent basis for invoking equitable tolling, prejudice may be considered only if the other factors of the test have been met. Id. at 1009.
Petitioner has not asserted that he lacked notice or constructive knowledge of the federal statute of limitations Therefore, the question is whether Petitioner was diligent in pursuing his claims. Petitioner must demonstrate that he "acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000).
1. Diligence: Assistance of Counsel
Petitioner alleges that he did not know his appeal of right was dismissed until eleven months after the court of appeals entered its order of dismissal. He contends that he is a victim of ineffective assistance of appellate counsel.
Petitioner contends that his first appellate attorney allowed the appeal of right to be dismissed. The alleged ineffectiveness of Petitioner's first appellate attorney is irrelevant because the period of limitation did not begin to run until after the appeal of right was dismissed.
Petitioner faults his second appellate attorney for waiting more than one year to file an application for leave to appeal. Petitioner's second appellate attorney allowed the period of limitations to run 252 days before he sought leave to appeal and 83 days before he filed Petitioner's post-conviction motion. However, one month remained in the limitation period after the conclusion of all state court review. Thus, the delays caused by the second appellate attorney did not foreclose Petitioner from filing a timely habeas corpus petition. Moreover, an attorney's mistakes and lack of due diligence in preserving a claimant's rights generally do not warrant equitable tolling of the statute. Smaldone v. Senkowski, 273 F.3d 133, 138 (2nd Cir. 2001) (collecting cases), petition for cert. filed, (U.S. Feb. 12, 2002) (No. 01-1194); Harris, 209 F.3d at 330-31. The Court concludes that Petitioner was not diligent in pursuing his claims and that the alleged ineffective assistance of counsel does not excuse the untimely filing of his habeas petition.
2. Lack of Direct Appeal
Petitioner alleges next that he never had a direct review. Therefore, argues Petitioner, the Court should toll the 83 days that elapsed between the supreme court's denial of his second appeal and the filing of his motion for relief from judgment.
The lack of a direct review was due to one appellate attorney's failure to file a timely brief and the second appellate attorney's failure to file a timely application for leave to appeal. Neither excusable neglect, nor attorney error is a basis for equitably tolling the statute. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Smaldone, 273 F.3d at 138; Harris, 209 F.3d at 330-31. Furthermore, Petitioner or his attorney presumably could have filed the motion for relief from judgment sooner. It raised the same claims that Petitioner had presented to the appellate courts during his second round of appeals.
3. Tolling for Expiration of the Time to Seek Certiorari
Petitioner has asked the Court to toll the limitation period for the 90-day period during which prisoners may seek certiorari in the United States Supreme Court. Criminal defendants have ninety days to file a petition for the writ of certiorari following the entry of judgment by the "state court of last resort." Sup.Ct. R. 13.1. A conviction does not become final on direct review until the expiration of the 90-day period for seeking review in the Supreme Court. 28 U.S.C. § 2244(d)(1)(A); Bronaugh, 235 F.3d at 283, 286.
Petitioner's conviction became final when he failed to file a timely application for leave to appeal in the Michigan Court of Appeals. The United States Supreme Court had no jurisdiction to consider his case at the time because there was no final judgment by the State's highest court. Therefore, Supreme Court Rule 13 did not come into play during direct review of Petitioner's conviction.
Petitioner's subsequent appeals involved "post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2). This is clear from the Michigan Supreme Court's order stating that the Michigan Court of Appeals "lacked the authority to grant [Petitioner's] late delayed application for leave to appeal." Hardaway, Mich. Sup.Ct. No. 110824. In addition, the state courts of Michigan deem long-delayed direct appeals to be collateral attacks on the conviction. See People v. Ward, 459 Mich. 602, 611 (1999); People v. Erwin, 212 Mich. App. 55, 66 (1995). Section 2244(d)(2) "does not toll the limitations period to take into account the time in which a defendant could have potentially filed a petition for certiorari with the United States Supreme Court, following a state court's denial of post-conviction relief." Isham v. Randle, 226 F.3d 691, 695 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001). For these reasons, the Court has not tolled the period of limitation for the time during which Petitioner allegedly could have sought certiorari in the United States Supreme Court.
III. Conclusion
The Court concludes that the one-year period of limitation expired before Petitioner filed his habeas petition and that equitable tolling is not appropriate here. Respondent is entitled to judgment as a matter of law. Accordingly, IT IS ORDERED that the motion for summary judgment is GRANTED and the habeas petition is DISMISSED as time-barred. The Court DECLINES to issue a certificate of appealability because Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).