Opinion
CIVIL CASE NO. O1-CV-73168-DT
September 5, 2001
OPINION AND ORDER OF SUMMARY DISMISSAL
Petitioner, a federal prisoner currently confined at the Federal Correctional Institution in Oxford, Wisconsin, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a 1990 Michigan misdemeanor conviction for which he served 319 days in jail. Petitioner is currently serving a 252-month federal sentence for drug and explosives-related convictions imposed in 1991. For the reasons discussed below, the Court DISMISSES the habeas petition as untimely, for lack of subject matter jurisdiction, and/or for failure to state a claim upon which relief may be granted.
I.
The habeas petition states that Petitioner pleaded guilty to a misdemeanor NSF check charge in the Presque Isle County Circuit Court in 1990 and was sentenced to 319 days in jail, which he served while awaiting trial on federal charges. It does not appear from the pleadings that Petitioner pursued a direct appeal from this conviction. On March 6, 1996, Petitioner filed a motion for relief from judgment with the trial court, which was denied on March 28, 1996. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. Petitioner's request for rehearing was denied on May 23, 1997. Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied on April 27, 1998.
On January 14, 1999, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 with the United States District Court for the Southern District of Illinois, which was dismissed without prejudice on May 10, 1999. On April 23, 2000, Petitioner filed another petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 with this Court, which was dismissed on August 29, 2000. Petitioner filed the present habeas petition, dated August 15, 2001, on August 20, 2001.
II. A.
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 petition after the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 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 (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 328 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 fight 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).
According to the procedural history set forth in the petition, Petitioner filed his motion for relief from judgment with the trial court on March 6, 1996 — before the one-year period began. He then pursued his state remedies until April 27, 1998 when the Michigan Supreme Court denied leave to appeal. Thus, the one-year grace period was tolled until April 27, 1998 and Petitioner had until April 27, 1999 to file his federal habeas petition. Petitioner did not sign the instant petition until August 15, 2001 — more than two years after the expiration of the one-year period. The filing of Petitioner's § 2241 petitions in federal court did not statutorily toll the one-year period. See Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120, 2129 (2001) (holding that a federal habeas petition is not an "application for State post-conviction or other collateral review within the meaning of 28 U.S.C. § 2244(d)(2) so as to toll the limitations period). Further, Petitioner does not assert that the State created an impediment to filing his habeas petition or that his claims are based upon newly-created rights or newly-discovered facts. His habeas petition is thus bared by the statute of limitations set forth in 28 U.S.C. § 2244(d).
The United States Court of Appeals for the Sixth Circuit has determined that the one-year limitations period is subject to equitable tolling. InDunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit 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, 250 F.3d at 1008.
Petitioner does not allege any circumstances which caused him to file the instant petition after the expiration of the limitations period. Moreover, even assuming that the one-year period should be equitably tolled for the time in which Petitioner's § 2241 petitions were pending, this petition is still untimely. From April 27, 1998 (when the Michigan Supreme Court denied leave to appeal) until January 14, 1999 (when Petitioner filed his first federal habeas petition), 261 days of the one-year grace period expired. The one-year period was then tolled until May 10, 1999 when the district court dismissed the petition. Petitioner had 104 days remaining in which to seek habeas relief Petitioner, however, did not file his second § 2241 petition until April 23, 2000-approximately 347 days later. Additionally, following dismissal of that second petition, Petitioner waited almost another year to file the present petition. He is thus not entitled to equitable tolling of the one-year period and the petition must be dismissed pursuant to 28 U.S.C. § 2244(d).
B.
Further, even if the petition is considered timely, it is subject to dismissal for lack of subject matter jurisdiction. A federal court may only entertain a petition for a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). When a sentence has fully expired, a habeas petitioner is no longer "in custody" for the offense and thus cannot file an application for habeas relief from that conviction. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
A prisoner need not be physically confined in jail or prison to challenge his conviction or sentence in a habeas corpus proceeding. See Mabry v. Johnson, 467 U.S. 504, 506 n. 3 (1984) (prisoner's § 2254 action was not moot despite the fact that he had been paroled); see also Garlotte v. Fordice, 515 U.S. 39, 45-47 (1995) (prisoner serving consecutive sentences is in custody for all of those sentences in the aggregate, and may attack the sentence scheduled to run first, even after it has expired, until all the consecutive sentences have been served). The United States Supreme Court has "never held however, that a habeas petitioner may be `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) ( per curiam). "The federal habeas statute gives the United States District Courts jurisdiction to entertain petitions for habeas relief only from persons who are in custody in violation of the Constitution or laws or treaties of the United States.'" Id at 490 (quoting 28 U.S.C. § 2241(e)(3), emphasis supplied by the Supreme Court). Petitioner in this case has fully served his 319-day sentence for the misdemeanor conviction at issue. Thus, he is no longer in custody pursuant to that conviction and the Court lacks subject matter jurisdiction over his claims.
C.
To the extent that Petitioner asserts that the challenged misdemeanor conviction was used to enhance his current federal sentence, however, he satisfies the "in custody" requirement and the Court has jurisdiction over his claims. See Lackawanna Co. Dist Attorney v. Coss, 531 U.S. 923, 121 5. Ct. 1567, 1573 (2001); Daniels v. United States, ___ U.S. ___, 121 S.Ct. 1578, 1584 (2001). Nonetheless, his petition must still be dismissed for failure to state a claim upon which relief may be granted.
In Coss and Daniels, the United States Supreme Court held that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue such remedies while they were available, or because the defendant did so unsuccessfully, the conviction is regarded as conclusively valid and a defendant generally may not challenge the enhanced sentence in proceedings under 28 U.S.C. § 2254 or 2255 on the basis that the prior conviction was unconstitutionally obtained. Coss, 121 S.Ct. at 1574; Daniels, 121 S.Ct. at 1583; see also Steverson v. Summers, 258 F.3d 520, 2001 WL 830452, 3.4 (6th Cir. July 25, 2001) (affirming dismissal of petition by federal prisoner challenging three expired state court convictions based upon Maleng, Coss, and Daniels). The only exceptions to this rule noted by the Supreme Court are when a petitioner claims that the underlying conviction was obtained in the absence of counsel in violation of the Sixth Amendment as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963) or when no review of the underlying conviction was available to the petitioner through no fault of his own. See Coss, 121 S.Ct. at 1574-75; Daniels, 121 S.Ct. at 1583-84. No such circumstances are presented in this case. Petitioner's challenge to his state misdemeanor conviction involves claims concerning the voluntariness of his guilty plea and the ineffectiveness of counsel during the plea process and Petitioner does not assert that he was denied the opportunity to have that conviction reviewed. Petitioner has thus failed to state a claim upon which habeas relief may be granted.
III.
This Court concludes that Petitioner has failed to file his petition for writ of habeas corpus within the one-year statute of limitations and has not alleged any circumstances which caused him to file outside the applicable time frame. Additionally, the Court concludes that Petitioner is no longer in custody pursuant to the challenged conviction and has failed to state a claim upon which relief may be granted.
Accordingly;
IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.