Opinion
Civil Case No. 01-CV-71867-DT
June 29, 2001
I. Facts and Procedural History
Petitioner, an inmate at the Ryan Correctional Facility in Detroit, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. The habeas petition states that Petitioner was convicted of second-degree murder following a bench trial in the Recorder's Court for the City of Detroit and was sentenced to 40-60 years imprisonment in 1988. Petitioner filed an appeal as of right with the Michigan Court of Appeals, which remanded the case for re-sentencing. People v. Herron, No. 119198 (Mich.Ct.App. Dec. 11, 1991). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which modified the Court of Appeals order and directed the trial court to consider the re-sentencing issue. People v. Herron, No. 93585 (Mich. July 14, 1992).
The trial court re-sentenced Petitioner to 35-60 years imprisonment on November 13, 1992. Petitioner then filed another appeal with the Michigan Court of Appeals, which affirmed his new sentence. People v. Herron, No. 161110 (Mich.Ct.App. Oct. 19, 1994). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Herron, No. 101303 (Mich. May 30, 1995).
On June 20, 1997, Petitioner filed a motion for relief from judgment with the trial court seeking to be re-sentenced. The trial court denied the motion. People v. Herron, No. 88-01111 (Recorder's Ct. Aug. 27, 1997). Petitioner's motion for reconsideration was denied on October 7, 1997. Petitioner then filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Herron, No. 213024 (Mich.Ct.App. Dec. 22, 1998). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Herron, No. 114089 (Mich. Aug. 31, 1999).
The present petition for a writ of habeas corpus, dated May 8, 2001, was filed with this Court on May 16, 2001. This Court ordered Petitioner to show cause why this matter should not be dismissed for failure to comply with the applicable statute of limitations. established by 28 U.S.C. § 2244 (d)(1). Petitioner filed a reply to the show cause order on June 18, 2001, asserting that his petition is timely because his state court motion for relief from judgment, dated April 2, 1997, should be deemed filed on that date, under the federal mailbox rule. Petitioner also asserts that any untimeliness should be excused because prison officials lost his legal documents when he was scheduled to be transferred to a facility in Virginia.
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, ED. 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 before the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final prior to the AEDPA's effective date are given a one-year grace period in which to file their federal habeas petitions. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Accordingly, Petitioner was required to file his federal habeas petition on or before April 24, 1997, 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).
Petitioner filed his motion for relief from judgment on June 20, 1997. Thus, the one-year limitations period had expired before Petitioner sought state post-conviction review. A state court post-conviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Thus, Petitioner's state post-conviction proceedings did not toll the running of the statute of limitations. The AEDPA's limitations period is only tolled while a prisoner has a properly filed post-conviction motion under consideration. 28 U.S.C. § 2244 (d)(2); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir. 2000); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); see also Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999).
Relying upon Houston v. Lack, 487 U.S. 266 (1988) (notices of appeal filed by prisoners are "filed" when delivered to prison officials for mailing to federal court), Petitioner asserts that he timely filed his motion for relief from judgment with the state trial court because he signed those pleadings on April 2, 1997 — approximately three weeks before the expiration of the one-year grace period. The Michigan courts, however, have declined to adopt the mailbox rule to the filing of state court pleadings. See Walker-Bey v. Dept. of Corrections, 222 Mich. App. 605, 606 (1997). Thus, Petitioner's post-conviction state court proceedings arguably did not toll the running of the statute of limitations.
Additionally, even if Petitioner's state motion for relief from judgment is deemed filed on April 2, 1997, his habeas petition is still untimely. Assuming the April 2, 1997 date is valid, then the limitations period was tolled until August 31, 1999 when the Michigan Supreme Court denied leave to appeal. Petitioner then had only 22 days remaining before the one-year period expired. The limitations period did not begin to run anew after the completion of his post-conviction proceedings. See Searcy v. Carter, ___ F.3d ___, 2001 WL 326768, *4 (6th Cir. April 5, 2001); Cromwell v. Keane, 33 F. Supp.2d 282, 285 (S.D.N.Y. 1999). Petitioner was thus required to file his federal habeas petition by September 22, 1999. Petitioner did not sign the instant habeas petition until May 8, 2001 — more than one year and seven months after the expiration of the one-year period. Thus, his habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244 (d).
Petitioner also asserts that the State created an impediment to filing his habeas petition because prison officials lost his legal documents when he was scheduled for a transfer to a facility in Virginia. However, the grievance Petitioner submits in support of this assertion does not indicate what, or if, legal documents relevant to his habeas petition were lost. Nor does Petitioner indicate when the documents were lost or how their loss prevented him from seeking either state or federal post-conviction relief. Petitioner has not established that the state created an impediment to the filing of his habeas pleadings. His petition is thus barred by the statute of limitations set forth in 28 U.S.C. § 2244 (d).
In Dunlap v. United States, ___ F.3d ___, 2001 WL 473063 (6th Cir. May 7, 2001), the United States Court of Appeals for the Sixth Circuit held that the limitations period set forth in 28 U.S.C. § 2254 and 2255 is not a jurisdictional bar and may be equitably tolled. The Dunlap court also ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test are:
(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, 2001 WL 473063 at *5. In Dunlap, the habeas petition was filed two months after the one-year period expired. The court found that the petitioner did not provide a satisfactory explanation for failing to timely file the petition and concluded that he failed to exercise due diligence in pursuing his claim and was not entitled to equitable tolling of the limitations period. Id. at *8.
In this case, Petitioner sets forth no circumstances which caused him to file his habeas petition after the expiration of the one-year grace period. The fact that Petitioner is proceeding without a lawyer or may have been unaware of the limitations period does not warrant tolling. See, e.g., 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). Further, Petitioner has not shown diligence in seeking habeas relief given that he filed his state court motion for relief from judgment two years after the end of his direct appeals and then waited an additional year and seven months once those proceedings were concluded to file his federal petition. He is thus not entitled to equitable tolling of the limitations period. See Dunlap, supra; Jones v. Gundy, 100 F. Supp.2d 485, 488 (W.D. Mich. 2000).
III. Conclusion and Order
Based on the foregoing analysis, the Court concludes that Petitioner failed to file his habeas petition within the one-year limitations period established by 28 U.S.C. § 2244 (d) and that the statute of limitations precludes federal review of the petition.
Additionally, before Petitioner may appeal this Court's dispositive decision, a certificate of appealability must issue. 28 U.S.C. § 2253 (c)(1)(a); Fed.R.App.P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). When a federal district court denies a habeas claim on procedural grounds without addressing the claim's merits, a certificate of appealability should issue, and an appeal of the district court's order may be taken, if the petitioner shows that jurists of reason would find it debatable whether the petitioner 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, _______ U.S. ___, 120 S.Ct. 1595, 1604 (2000). When a plain procedural bar is present and the district court is correct to invoke it to dispose of the matter, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed. In such a case, no appeal is warranted. Id. The Court is satisfied that jurists of reason could not find this Court's procedural ruling debatable. No certificate of appealability is warranted in this case nor should Petitioner be granted leave to proceed on appeal in forma pauperis. Fed.R.App.P. 24(a).
Accordingly;
IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED and leave to proceed on appeal in forma pauperis is DENIED.
JUDGMENT
The above-entitled matter having come before the Court on a Petition for Writ of Habeas Corpus, Honorable Bernard A. Friedman, United States District Judge, presiding, and in accordance with the Opinion and Order entered on 29 JUN, 2001; IT IS ORDERED AND ADJUDGED that the Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE.
SO ORDERED.