Opinion
Case No. 02-CV-71572-DT
July 31, 2002
OPINION AND ORDER OF DISMISSAL
I. Introduction
This matter is pending before the Court on Petitioner Stanley Lemuel Mitchell's pro se habeas corpus petition under 28 U.S.C. § 2254. Also pending are Petitioner's motion for appointment of counsel and his motion for an evidentiary hearing.
The petition and attachments allege that, on January 7, 1988, Petitioner was convicted in the former Detroit Recorder's Court of possession with intent to deliver less than 50 grams of a controlled substance. See MICH. COMP. LAWS § 333.7401(2)(a)(iv). On February 17, 1988, the trial court sentenced Petitioner to a term of six months to twenty years in jail for the crime. Petitioner filed a motion for new trial but, on August 9, 1988, the trial court denied his motion. It appears that, on November 30, 1990, the Michigan Court of Appeals affirmed Petitioner's conviction. Petitioner did not file an application for leave to appeal in the Michigan Supreme Court on direct review of his conviction.
Meanwhile, on September 7, 1990, Petitioner was convicted of unrelated charges in federal court. He was sentenced to 168 months in prison on count I of the federal indictment and to a concurrent term of 48 months in prison on count II of the indictment, followed by three years of supervised release.
On July 12, 1999, Petitioner filed a motion for relief from judgment in his state case. The trial court denied Petitioner's motion. See People v. Mitchell, Recorder's Court No. 87-6734 (Wayne County Circuit Court Oct. 19, 2000). The Michigan Court of Appeals denied leave to appeal the trial court's decision on the ground that Petitioner had "failed to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Mitchell, No. 233871 (Mich.Ct.App. Aug. 17, 2001). The Michigan Supreme Court likewise denied leave to appeal pursuant to Rule 6.508(D). See People v. Mitchell, No. 120027 (Mich.Sup.Ct. Feb. 4, 2002).
Petitioner signed and dated his habeas corpus petition on April 18, 2002. The issues presented in the petition read as follows:
I. Whether Defendant was denied Brady material in violation of the Due Process Clause of the Fourteenth Amendment?
II. Whether there was a violation of the Confrontational Clause due to ineffective assistance of trial counsel?
III. Whether trial counsel's failure to investigate and interview res gestae witness and subsequent failure to have them testify at Petitioner's trial constituted ineffective assistance of counsel?
IV. Whether the trial court erred in its opinion that Petitioner was procedurally barred under MCR 6.508(D)(3)(a) and (b) to raise grounds for relief from judgment? And the Michigan Court of Appeals along with the Michigan Supreme Court opinion that Petitioner has failed to meet the burden to establishing entitlement to relief under MCR 6.508(D)?
V. Whether appellate counsel was ineffective when he failed to raise claims of substantive merit on direct appeal?
VI. Whether the Petitioner's conviction was obtained by fraud perpetrated upon the court?
It appeared to the Court that Petitioner was in state custody and that the habeas petition was barred by the one-year statute of limitations established in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244 (d). Accordingly, the Court ordered Petitioner to show cause why his habeas petition should not be dismissed.
The AEDPA applies here because Petitioner filed his habeas petition after the AEDPA was enacted on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Subsection (d) reads as follows:
(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) (West 2000).
Petitioner recently filed a reply to the Court's order. He explains in the reply that he currently is serving the supervised release portion of his federal sentence and that he is challenging his state conviction because it was used to enhance his federal sentence.
II. Discussion
Whether Petitioner is in custody for the state conviction under attack is unclear. It is evident from the petition and exhibits, however, that Petitioner's state conviction became final before the AEDPA was enacted. Consequently, Petitioner had one year from the effective date of the AEDPA (April 24, 1996), or until April 24, 1997, to file his habeas petition. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001), cert. denied ___ U.S. ___, 122 S.Ct. 1081 (2002); Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.), cert denied, ___ U.S. ___, 122 S.Ct. 237 (2001); Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001);Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999), vacated on other grounds, 530 U.S. 1257 (2000). Petitioner did not sign and date his habeas petition until April 18, 2002, almost six years after the period of limitation began to run.
Habeas relief is available only if the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241 (c)(3) and 2254(a). A habeas petitioner is not in custody under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Maleng v. Cook, 490 U.S. 488, 491 (1989).
The statute is tolled while "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). However, the one-year period of limitation expired before Petitioner filed his post-conviction motion in 1999, and it does not appear that Petitioner was precluded from filing his motion earlier. The trial court implied on review of Petitioner's motion for relief from judgment that Petitioner was asserting previously raised issues or claims that Petitioner could have raised on appeal or in his prior motion.
Petitioner maintains that he is required to attack his state sentence in a petition under 28 U.S.C. § 2254 before applying for relief on his federal sentence, which was enhanced by the state conviction. Petitioner relies on Custis v. United States, 511 U.S. 485 (1994), to support his argument.
Custis was "in custody" for purposes of his state convictions at the time of his federal sentencing. The Supreme Court held that Custis could not "use the federal sentencing forum to gain review of his state convictions." Id. at 497. The Supreme Court explained that Custis could attack his state sentences in state court or through federal habeas review and that, if he were successful in attacking his state sentence, he could attempt to re-open any federal sentence enhanced by the state sentences. Id.
Petitioner is attempting to comply with the procedure recommended in Custis, but he failed to take into account the statute of limitation for habeas corpus petitions. The one-year period of limitation for attacking Petitioner's state sentence has expired. Furthermore, this is not an appropriate case for equitable tolling, because Petitioner has not alleged that he lacked notice or constructive knowledge of the filing requirement, and he has not been diligent in pursuing his rights. Cook v. Stegall, ___ F.3d ___, ___, No. 00-2036, 2002 WL 1400527, at *4 (6th Cir. July 1, 2002) (declining to exercise equitable powers and toll the statute of limitations where there was an extraordinarily long period of unexplained idleness and the petitioner knew of the filing deadline); Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001) (listing the five factors to be considered in deciding whether to equitably toll a period of limitations).
Accordingly,
Petitioner's application for a writ of habeas corpus [docket entry 4] is DISMISSED pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. See also Scott v. Collins, 286 F.3d 923, 930-31 (6th Cir. 2002) (explaining that Rule 4 gives a district court the ability to dismiss habeas petitions sua sponte as an initial matter after giving the petitioner notice and an adequate opportunity to be heard). Petitioner's motions for appointment of counsel and for an evidentiary hearing [docket entries 5 and 6] are DENIED.