Opinion
Case No.: 01-10352-BC
March 13, 2003
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Raymond H. Roberts, a state prisoner currently confined at the Boyer Road Correctional Facility in Carson City, Michigan, has filed a 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 petitioner was convicted of five counts of first-degree criminal sexual conduct, one count of armed robbery, and one count of commission of a felony while in possession of a firearm following a jury trial in the Wayne County Circuit Court in 1989. The petitioner was sentenced to concurrent terms of thirty to sixty-five years imprisonment on the criminal sexual conduct convictions, a concurrent term of life imprisonment on the robbery conviction, and a consecutive term of two years imprisonment on the firearm conviction.
The respondent has filed a motion seeking dismissal of the petition on the ground that it was not filed within the one-year statute of limitations required by 28 U.S.C. § 2244. The Court agrees, and will dismiss the petition.
I.
Following his convictions and sentencing, the petitioner filed an appeal of right with the Michigan Court of Appeals, asserting that: (1) trial counsel was ineffective for failing to produce two alibi witnesses, for advising the petitioner not to testify, and for failing to request a lesser included offense, and (2) the sentence was disproportionate. The Michigan Court of Appeals affirmed the petitioner's convictions in an unpublished per curiam decision. People v. Roberts, No. 131815 (Mich.Ct.App. Sept. 3, 1992). The petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Roberts, No. 95076, 442 Mich. 858, 498 N.W.2d 743 (Feb. 16, 1993).
On January 11, 2000, the petitioner filed a motion for relief from judgment with the trial court asserting that trial counsel was ineffective for failing to produce two witnesses to present a consent defense. The trial court granted the motion and ordered a new trial. See Wayne Co. Cir. Ct. Docket Sheet No. 88-10598. The prosecution thereafter filed an application for leave to appeal with the Michigan Court of Appeals. In lieu of granting leave to appeal, the Michigan Court of Appeals peremptorily reversed and vacated the trial court's order granting relief from judgment. People v. Roberts, No. 225856 (Mich.Ct.App. May 9, 2000). The petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Roberts, No. 117135, 463 Mich. 905, 618 N.W.2d 913 (October 30, 2000).
The petitioner, through counsel, filed the present petition for a writ of habeas corpus, on October 30, 2001, asserting that trial counsel was ineffective for failing to present a consent defense.
On April 4, 2002, respondent filed a motion to dismiss the habeas petition because it was filed outside the one-year statute of limitations established by 28 U.S.C. § 2244(d)(1). The petitioner has not responded to the motion.
II.
Title 28, section 2244 of the United States Code provides one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Neal v. Bock, 137 F. Supp.2d 879, 883 (E.D.Mich. 2001). The revised statute states:
(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).
In this case, the petitioner's convictions became final before the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final prior to the AEDPA's effective date are provided a one-year grace period in which to file their federal habeas petitions. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Accordingly, the 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).
Title 28, § 2244(d)(2) provides that: "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." However, this provision has no impact in this case because the petitioner did not file his state post-conviction motion until until January 11, 2000, well after the statute of limitations expired on June 28, 1998. The Sixth Circuit has unequivocally stated that the filing and denial of state court motions for post-conviction relief do not restart the statutory clock. See Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001); Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).
The doctrine of equitable tolling applies to the one-year limitations period for habeas corpus petitions. Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir.), cert. denied, 534 U.S. 1057 (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). When determining whether equitable tolling is appropriate, courts must consider:
"(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.
In this case, the petitioner sets forth no circumstances which caused him to file his state court motion for relief from judgment more than one-year after the expiration of the one-year grace period. The fact that the petitioner is untrained in the law, may have been proceeding without a lawyer, or may have been unaware of the statute of limitations does not warrant tolling. Holloway v. Jones, 166 F. Supp.2d 1185, 1189 (E.D.Mich. 2001) (lack of professional legal assistance does not justify tolling).
Furthermore, the petitioner has not demonstrated diligence in seeking habeas relief. The petitioner did not file his motion for relief from judgment with the state trial court until seven years after the conclusion of direct review of his convictions and three years after the expiration of the one-year grace period. The petitioner then waited an additional year after the conclusion of those proceedings to file his federal habeas petition. He is thus not entitled to equitable tolling of the limitations period. See Dunlap, 250 F.3d at 1010; Neal, 137 F. Supp.2d at 885.
III.
The Court concludes that the petitioner did not file his application for a writ of habeas corpus within the one-year limitations period established by 28 U.S.C. § 2244(d)(1). The Court further concludes that the petitioner failed to demonstrate any exceptional circumstances which would warrant equitable tolling of the limitations period.
Accordingly, it is ORDERED that the respondent's Motion to Dismiss [dkt #7] is GRANTED.
It is further ORDERED that the petition for a writ of habeas corpus is DISMISSED.