Opinion
Case No. 1:00-CV-747.
February 22, 2001.
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). Petitioner attacks both his conviction and the subsequent denials of his release on parole by the Michigan Parole Board. Although a petition generally should not be permitted to attack both a conviction and a parole denial by the Michigan Parole Board, see Rule 2(d), Rules Governing § 2254 Cases, the Court will address both challenges for reasons of efficiency. After undertaking the review required by Rule 4, the Court will dismiss the challenge to Petitioner's conviction as barred by the one-year period of limitation provided in 28 U.S.C. § 2244(d) and dismiss the challenge to the parole denial as noncognizable.
Discussion
I. Factual allegations
Petitioner is presently incarcerated at the Carson City Correctional Facility. On June 5, 1997, in the Bay County Circuit Court, he pled nolo contendere to aggravated stalking. On July 14, 1997, he was sentenced to a term of two-and-one-half to five years. Petitioner did not pursue an appeal of his conviction and sentence. (Pet., ¶¶ 8-9.) According to a circuit court order attached to Petitioner's application, he filed a claim of appeal in the circuit court but then stipulated to its dismissal. A copy of the stipulation was filed in the circuit court on September 29, 1997. ( See 1/7/99 Ord. Denying Mot. for Release on Recognizance, attach. to pet.) Thus, Petitioner failed to pursue an appeal.
In this application for habeas relief, Petitioner claims that his plea was coerced and that his counsel was ineffective. Petitioner also claims that his parole was wrongly denied. Although his allegations are not entirely clear, he appears to be challenging more than one parole denial. He was denied parole at least twice between 1998 and 2000. Petitioner believes that the denials were incorrect because he has behaved well while incarcerated.
II. Period of limitation
Insofar as Petitioner challenges his conviction, his application is barred by the one-year period of limitation provided in 28 U.S.C. § 2244(d)(1), which was enacted on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, PUB. L. NO. 104-132, 110 STAT. 1214 ("AEDPA"). Section 2244(d)(1) provides:
(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.28 U.S.C. § 2244(d)(1). The running of the period of limitation is tolled when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The Supreme Court recently held that an application is "properly filed" "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, No. 99-1238, ___ U.S. ___, 2000 WL 1663653, at *3 (Nov. 7, 2000).
In this case, § 2244(d)(1)(A) provides the period of limitation. The other subsections do not apply to the grounds that Petitioner has raised. Under § 2244(d)(1)(A), the one-year limitation period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Under Michigan law at the time of Petitioner's conviction, a defendant could appeal a conviction by plea only if the defendant had first moved to withdraw the plea. M.C.R. 6.610(E)(7)(a). The motion to withdraw must be made within the same time as allowed for the filing of an application for leave to appeal. M.C.R. 6.311. Generally, an application must be made within twenty-one days after the entry of judgment; however, there is an exception of one year for a delayed application. M.C.R. 7., 205(A), (F)(3). Petitioner was convicted on June 5, 1997, and he was sentenced on July 14, 1997. Thus, he had until July 14, 1998, in which to file a motion to withdraw. He did not do so. Consequently, his time for seeking direct review expired on July 14, 1998. Thus, Petitioner had until July 14, 1999, to file an application for habeas relief.
Although not raised as a separate ground for relief in the habeas application, Petitioner indicates in a cover letter that he would like to present the same challenge as presented in the Staley case. Petitioner refers to Staley v. Jones, No. 1:99-cv-312 (W.D.Mich.) (July 14, 2000 Op. Ord.), in which this Court found that Michigan's stalking law was unconstitutionally broad. This Court's decision has been reversed by the Sixth Circuit Court of Appeals. See Staley v. Jones, No. 00-1809, ___ F.3d ___, 2001 WL 91611 (6th Cir. Feb. 5, 2001). Should the Supreme Court ultimately uphold this Court's decision and make it retroactively applicable to cases on collateral review, the one-year period of limitation will not prevent Petitioner from presenting the claim. See 28 U.S.C. § 2244(d)(1)(C). In any event, Petitioner would be required to exhaust the claim in the state courts before presenting it in federal court. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
Petitioner filed a motion to withdraw after the one-year time limited expired, and it was denied as untimely. ( See Feb. 18, 2000 Op. and Ord. Denying Mot. to Withdraw Plea, attach to pet.)
During the one-year window for filing a habeas application, on November 6, 1998, Petitioner filed a motion for relief from judgment. For the state post-conviction motion to toll the limitations period under § 2244(d)(2), the claim raised therein must be a federally cognizable claim. Further, the claim must also concern at least one of the claims being made in the federal habeas petition. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Petitioner asserts that his claims included ineffective assistance of counsel and coerced plea agreement. ( See Pet., ¶ 11.) These are the same claims as set forth in his habeas application, assuming that Petitioner presented the same factual background in the state court as in his habeas application. Accordingly, the Court will treat the motion for relief from judgment as tolling the one-year limitation period.
Petitioner asserts that his motion for relief from judgment was dismissed sometime in November 1999 for lack of progress. (Pet., ¶ 11(a)(5).) The docket sheet of the Bay County Circuit Court shows that the motion was dismissed on May 20, 1999. See People v. Janasik, No. 97-1258-FH (Bay County Circuit Court) (copy of docket sheet attached as Exhibit A). Petitioner did not seek leave to appeal from the denial of the motion. The motion for relief from judgment tolled the running of the limitation period from November 6, 1998, until May 20, 1999, or for 195 days. This tolling extended the July 14, 1999, deadline for 195 days until January 25, 2000.
This Court may take judicial notice of proceedings in a state court. See Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.), cert. denied, 449 U.S. 996 (1980); Mullins v. Allen, No. 96-2362, 1997 WL 809976, at *2 (6th Cir. Dec. 18, 1997).
There were no other motions which tolled the limitation period. Petitioner filed a motion to withdraw his plea. This motion may have concerned the issues in this habeas application. Even if it did, the motion cannot toll the limitation period. It was denied by the circuit court as untimely because it was not filed within the one-year period. Thus, it cannot toll the limitation period. Artuz, 2000 WL 1663653, at *3. Although Petitioner filed other post-conviction motions such as a motion for release on recognizance and a motion to correct or modify sentence — these motions failed to meet the requirement in Austin, 200 F.3d at 393, that they concern a federal issue that is raised in this habeas application. Thus, the habeas petition was due on or before January 25, 2000.
Even if the motion could toll the period, Petitioner's application would still be untimely. The motion pended from November 17, 1999 until it was dismissed on February 18, 2000. This would have extended the limitation period an additional 93 days until April 27, 2000, and Petitioner's habeas application is still too late.
Petitioner filed his habeas application no earlier than September 29, 3000. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); Marshall v. Tyszkiewicz, No. 99-1364, 2000 WL 924483, at * 1 (6th Cir. June 28, 2000). Petitioner signed his application on September 29, 2000, and it was received by this Court on October 4, 2000. Even assuming that it was filed on September 29, 2000, the application is untimely. Consequently, the Court finds that Petitioner's challenge to his conviction for aggravated stalking is time-barred.
III. Parole denial
Petitioner also challenges the denial of his parole. Regardless whether these claims were properly exhausted, the claims cannot afford Petitioner habeas relief. See 28 U.S.C. § 2254(b)(2) (court may dismiss action notwithstanding lack of exhaustion).
Michigan law provides for indeterminate sentencing, and Petitioner was sentenced to serve a term of at least two-and-one-half and not exceeding five years. Petitioner has not served the maximum sentence of five years and thus, is not entitled to be discharged. He has no liberty interest in being released on parole any time before the expiration of his maximum sentences. There is no constitutional or inherent right to be conditionally released before the expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so and thus, the presence of a parole system by itself does not give rise to a constitutionally-protected liberty interest in parole release. Id. at 7; Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
The Sixth Circuit, noting "the broad powers of the Michigan procedural authorities to deny parole," has held that the Michigan system does not create a liberty interest in parole. Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc). In unpublished decisions, the Sixth Circuit also has held that particular parts of Michigan's statutory parole scheme do not create a liberty interest in parole. See Hawkins v. Abramajtys, No. 99-1995, 2000 WL 1434695, at *2 (6th Cir. Sept. 19, 2000); Fifer v. Michigan Dep't of Corr., No. 96-2322, 1997 WL 681518, at * 1 (6th Cir. Oct. 30, 1997); Moran v. McGinnis, No. 95-1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at * 1 (6th Cir. Oct. 18, 1995); Leaphart v. Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, 1995); Janiskee v. Michigan Dep't of Corr., No. 91-1103, 1991 WL 76181, at * 1 (6th Cir. May 9, 1991); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at * 1 (6th Cir. Jan. 21, 1993); Haynes v. Hudson, No. 89-2006, 1990 WL 41025, at * 1 (6th Cir. April 10, 1990). Further, the Michigan Supreme Court has recognized that there is no liberty interest in parole under the Michigan system. Glover v. Michigan Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999). Accordingly, Petitioner has no liberty interest at stake. Because Petitioner has no liberty interest at stake, habeas corpus cannot afford him any relief.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner's application pursuant to Rule 4 because his challenge to his conviction is time-barred under 28 U.S.C. § 2244(d) and his challenge to his parole denial is not cognizable.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the court must determine whether a certificate of appealability should be granted. A certificate should issue if petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
To warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). The Court finds that reasonable jurists could not find that this Court's dismissal of Petitioner's claim that he was erroneously denied parole was debatable or wrong, and therefore, the Court will deny Petitioner a certificate of appealability.
This Court also`denied Petitioner's challenge to his conviction on procedural grounds of the one-year period of limitation. "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly dismissed Petitioner's challenge to his conviction as time-barred. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the Petitioner should be allowed to proceed further." Id. Therefore, the Court denies Petitioner a certificate of appealability.
A Judgment consistent with this Opinion will be entered.
JUDGMENT
In accordance with the Opinion entered this day:IT IS ORDERED that Petitioner's Motion For Immediate Release (Dkt. No 5) is DENIED.
IT IS ORDERED that Petitioner's application for habeas corpus relief be DISMISSED with prejudice pursuant to Rule 4 of the Rules Governing § 2254 Cases because the challenge to his conviction is barred by the one-year period provided in 28 U.S.C. § 2244(d) and his challenge to his parole denial is not cognizable.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED as to each issue raised by the Petitioner in this application for habeas corpus relief because Petitioner has failed to make a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2).