Opinion
Case Number 99-72315.
June 30, 2000.
OPINION AND ORDER GRANTING RESPONDENT'S MOTION DISMISS
I. Introduction
Petitioner Hal Rockwell, Jr., a state inmate currently incarcerated at the Carson City Correctional Facility in Carson City, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a Motion to Dismiss Petition for Writ of Habeas Corpus. For the reasons set forth below, Respondent's motion is granted.
II. Background
On October 27, 1989, following a jury trial in the Circuit Court for the County of Oakland, Petitioner was found guilty of conspiring with his mother, Sharon Rockwell, and his friend, Mario Stitt, to murder his father, Edward Rockwell, and of assault with intent to murder. On November 13, 1989, Oakland County Circuit Court Judge Barry L. Howard sentenced Petitioner to seven to twenty years imprisonment for the assault conviction and life imprisonment for the conspiracy to murder conviction. Petitioner was tried jointly with the other alleged co-conspirators, including his mother, Sharon Rockwell.
On the evening of March 2, 1989, at approximately 8:00 p.m., Edward Rockwell was watching television at his home when he was hit on the back of the head by a baseball bat swung by Mario Stitt. Mario apologized to Edward for hitting him, telling Edward that he had tripped and struck Edward by accident. At that point, Edward did not require any medical attention and resumed watching television.
At approximately 10:30 p.m. the same evening, Edward was again struck on the back of the head by a baseball bat, this time swung by Jeff Greene. As Edward turned toward Jeff Greene, Mr. Greene hit him on the side of the head with the baseball bat. Mr. Greene attempted to strike Edward a third time, but Edward was able to grab the bat. At some point after Edward grabbed the bat, Petitioner, who had been in the kitchen, entered the room. Edward asked Petitioner to call an ambulance. Petitioner did not make the telephone call, so Edward telephoned the paramedics himself. Edward survived the attack and suffered no permanent physical injury.
Prior to trial, the prosecution submitted a motion in limine to limit the introduction of certain evidence that Petitioner and other defendants intended to offer as proof. Petitioner's counsel and counsel for co-defendants Greene and Stitt sought leave to admit evidence that Edward Rockwell had been sexually molesting Petitioner and his two brothers Kevin and Teddy Rockwell for years. Petitioner, Stitt and Greene sough to admit evidence of sexual abuse for the purpose of establishing self-defense. The trial court held this evidence inadmissible for that purpose because sufficient foundation had not been established for a self-defense theory. The trial court held that inquiry into sexual molestation was not material under MRE 404. Therefore, the court barred inquiry into Edward Rockwell's alleged sexual molestation of defendant Hal Rockwell and his two other sons.
Sharon Rockwell's attorney also sought leave to admit evidence of the alleged sexual abuse. The prosecution supported the charge against Sharon of conspiracy to murder with evidence that she and her sons frequently discussed different ways to kill Edward Rockwell. Sharon's counsel sought to explain these conversations by presenting evidence of the alleged sexual abuse. Her counsel argued that, as a result of the sexual abuse, her three sons developed a deep hatred for their father. She allowed her sons to fantasize about hurting their father because, her attorney argued, she believed such talk would be therapeutic for the boys, allowing them to release some of their frustration, thereby preventing their hatred from festering to such an extent that it would become dangerous. Her attorney further argued that Sharon's discussions with her sons regarding killing their father were never intended to result in any action. He sought to admit evidence of the sexual abuse to explain to the jury why Sharon would have discussions about killing Edward Rockwell, without there being a concomitant meeting of the minds regarding an actual intent to kill Edward Rockwell. The trial court did not allow the admission of evidence regarding the sexual abuse.
Sharon Rockwell subsequently was granted a writ of habeas corpus in this Court on the ground that the exclusion of the allegations of sexual abuse deprived her of her right to present a complete defense.Rockwell v. Yukins, No. 97-71072 (E.D. Mich. Feb. 4, 1999).
Following his conviction, Petitioner filed an appeal in the Michigan Court of Appeals. The Michigan Court of Appeals affirmed Petitioner's conviction and sentence. People v. Rockwell, No. 123768 (Mich.Ct.App. April 2, 1991).
Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court. On March 31, 1992, the Michigan Supreme Court issued an order denying leave to appeal.
Petitioner filed the pending habeas corpus petition on May 25, 1999. On August 3, 1999, Respondent filed a motion to dismiss for failure to comply with the one-year limitations period applicable to habeas corpus petitions. Petitioner filed a response to Respondent's motion to dismiss on August 24, 1999.
III. Analysis
Respondent has filed a motion to dismiss the pending habeas corpus petition as untimely. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA" or "the Act") applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Petitioner's application for habeas corpus relief was filed after April 24, 1996. Therefore, the provisions of the AEDPA, including the limitations period for filing an application for habeas corpus relief, apply to Petitioner's application. Lindh v. Murphy, 521 U.S. 320, 337 (1997).
Among other amendments, the AEDPA amended 28 U.S.C. § 2244 to include a one-year limitations period within which habeas petitions challenging state court judgments must be filed. In most cases, a prisoner is required to file a federal habeas corpus petition within one year of completing direct review of the habeas claims. 28 U.S.C. § 2244 (d)(1)(A). Where a prisoner's conviction became final prior to the effective date of the AEDPA, the prisoner is permitted one year from the AEDPA's effective date to file a petition for habeas corpus relief in federal court. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999).
In the pending case, Petitioner's conviction became final before the AEDPA became effective on April 24, 1996. Therefore, Petitioner was required to file his application for habeas corpus by April 24, 1997 to comply with the one-year limitations period.
In his response to Respondent's motion to dismiss, Petitioner argues that application of § 2244(d)(1)(A)'s one-year limitations period to his petition would be an impermissible retroactive application of the AEDPA. Petitioner argues that, because his conviction pre-dates the effective date of the AEDPA, the AEDPA should not apply to his claims. This argument is meritless.
The Sixth Circuit Court of Appeals has held that the AEDPA's one-year limitations period applies to petitions filed after the Act's effective date even where the conviction pre-dated the AEDPA:
While statutory retroactivity has "long been disfavored," Landgraf v. U.S.I Film Prods., 511 U.S. 244, 268 (1994), retroactivity concerns generally do not bar the application of a changed limitation period to a suit that is filed after the amendments effective date. . . . Furthermore, "a statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based on prior law." Landgraf, 511 U.S. at 269 (citations omitted). Rather we must determine whether the Act "attaches new legal consequences to events completed before its enactment." Id. [Where] the events underlying [a petitioner's] conviction antedate the Antiterrorism and Effective Death Penalty Act, the application of the Act's limitation period does not attach "new legal consequences to events completed before its enactment." Id.Hyatt v. U.S., 207 F.3d 831, 832. Thus, because Petitioner's application for a writ of habeas corpus was filed after the effective date of the AEDPA, application of the one-year limitation period to his petition is not an impermissible retroactive application of the AEDPA.
Petitioner also argues that his petition should not be barred by the statute of limitations because he is entitled to equitable tolling of the limitations period based upon his ignorance of the one-year limitation period and his claim of actual innocence.
The Sixth Circuit has not yet addressed in a published opinion whether the AEDPA's one-year limitations period may be equitably tolled. However, in an unpublished opinion, the Sixth Circuit held that the one-year limitations period is subject to equitable tolling. In Craddock v. Mohr, 2000 WL 658023, *2 (6th Cir. May 8, 2000), the Sixth Circuit held as follows:
The doctrine of equitable tolling can preserve a petitioner's § 2254 claims when strict application of the § 2244 statute of limitations would be inequitable. . . . Equitable tolling applies when the petitioner is prevented in some extraordinary way from asserting his rights. . . . In order for equitable tolling to apply, the petitioner must diligently pursue § 2254 relief.Id. at *2 (6th Cir. May 8, 2000). Accord Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000); Smith v. McGinnis, 208 F.3d 13 (2nd Cir. 2000); Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000).
However, in Craddock, the Sixth Circuit declined to decide whether actual innocence can excuse the limitations period:
[Petitioner] also asserts that application of the statute of limitations would result in a miscarriage of justice because he is actually innocent of his crimes. A fundamental miscarriage of justice occurs when the petitioner submits new evidence showing that a constitutional violation has probably resulted in the conviction of one who is actually innocent. See Schlup v. Delo, 513 U.S. 298, 326-30 (1995). Even if the § 2244 statute of limitations can be excused because of a petitioner's actual innocence, [the petitioner] has not submitted any new evidence demonstrating his innocence of his convictions. . . . Therefore, the application of the statute of limitations does not result in a miscarriage of justice.Id.
Petitioner's first argument in favor of equitable tolling is based upon his ignorance of the one-year limitations period. "Ignorance of the law does not constitute an extraordinary circumstance justifying equitable tolling." Neloms v. McLemore, 2000 WL 654942, *2 (E.D. Mich. May 22, 2000), citing Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); see also Washington v. Elo, 2000 WL 356353, *6 (E.D. Mich. Feb. 29, 2000) (holding that "neither excusable neglect nor ignorance of the law alone are sufficient to invoke equitable tolling"); Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D. Mich. 1998) (same); 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). Petitioner does not claim that any state-created impediment prevented him from knowing about the one-year limitations period. Therefore, Petitioner's ignorance of the law is insufficient to warrant equitable tolling of the limitations period.
Next, Petitioner claims that the one-year limitations period should not bar his habeas corpus proceeding because he is actually innocent. As discussed above, the Sixth Circuit has not yet decided whether actual innocence may toll the one-year limitations period, but, this Court will assume for purposes of this analysis that, when a petitioner diligently has pursued federal habeas relief, a credible claim of actual innocence is sufficient to toll the one-year limitations period. Applying that standard, Petitioner has failed to establish entitlement to equitable tolling.
First, an essential component of the doctrine of equitable tolling is a petitioner's diligent pursuit of federal habeas relief. See, e.g., Morgan v. Money, 2000 WL 178421 (6th Cir. Feb. 8, 2000) (holding that a petitioner must show that he exercised due diligence in pursuing § 2254 relief to support equitable tolling). See also Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000) (holding that petitioner "did not meet the high threshold for obtaining [equitable tolling] because he did not act diligently to pursue his ineffective assistance of appellate counsel claim in either state or federal court"); Craddock, 2000 WL at *2 ("The doctrine of equitable tolling is not applicable in this case because [petitioner] did not diligently pursue federal habeas relief"); Jones v. Gundy, 2000 WL 745411 (W.D. Mich. June 8, 2000) (rejecting a petitioner's argument for equitable tolling where petitioner did not diligently pursue his rights and failed to provide any explanation to excuse such failure).
Petitioner's state court review concluded in 1992. He did not file his federal habeas petition until 1999, seven years after the conclusion of his state court review, and two years after the April 24, 1997 deadline. Petitioner does not claim that during that seven-year period he was prevented in any way from filing a habeas petition. In his affidavit in support of his habeas corpus petition, Petitioner states that he decided to file the instant petition after learning that his mother's petition was granted. Essentially, Petitioner filed his petition when he assessed that he might have some possibility of success.
Permitting a petitioner to file an untimely petition simply because the petitioner reevaluated the possibility of success in federal habeas corpus proceedings, when such reassessment is not predicated on a new rule of Constitutional law or newly discovered evidence, would essentially abrogate the one-year limitations period. Under such an exception, any petitioner could attempt to circumvent the one-year limitations period simply by asserting that he or she suddenly assessed the chances of success as being greater than previously thought and that filing a petition had become worthwhile.
In Martinez v. Kuhlman, 2000 WL 622626 (S.D. N.Y. May 15, 2000), the District Court for the Southern District of New York declined to equitably toll the AEDPA's limitations period when the petitioner delayed filing his habeas corpus petition because he initially concluded that the petition would be unsuccessful. In Martinez, the petitioner filed a federal habeas corpus petition approximately seven years after his conviction for criminal possession of a controlled substance and conspiracy, challenging the state court's imposition of consecutive rather than concurrent sentences. The petitioner claimed that he did not file his petition sooner because he had been subject to deportation proceedings prior to the expiration of his first consecutive sentence and therefore any challenge to his sentence would have been futile. The petitioner stated that when his deportation orders were suddenly rescinded he filed his habeas petition.
The district court rejected the petitioner's claim for equitable tolling:
In essence, petitioner argues that he thought at one time that it was not worth the effort for him to file a petition because he would be deported anyway, and then he changed his mind when his prospects changed. Petitioner's initial indifference is not an "impediment . . . created by State action." 28 U.S.C. § 2244 (d)(1)(B).Id. at *2.
In the pending case, Petitioner's untimely petition is not based upon a new rule of constitutional law. In addition, it is not based upon newly discovered evidence. While Petitioner claims that the evidence of his father's alleged sexual abuse was wrongly excluded from his trial, this excluded evidence is not newly discovered evidence. Indeed, other than the fact that this Court granted Petitioner's mother habeas corpus relief, Petitioner does not allege that he has acquired any new evidence over the past seven years which would justify the late filing of his habeas corpus petition. Thus, the Court concludes that Petitioner failed diligently to pursue federal habeas corpus relief.
Moreover, Petitioner does not present a credible claim of actual innocence. Petitioner claims that if the jury had been permitted to hear evidence of his father's alleged sexual abuse of Petitioner and his brothers the jury would not have convicted him. In Schlup v. Delo, 513 U.S. 298 (1995), the United States Supreme Court articulated the standard applicable to claims of actual innocence that are accompanied by claims of constitutional violations. To make a showing of actual innocence, "a petition must show that it is more likely than not that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt." Id. at 327. The Court further explained this standard as follows:
The . . . standard is intended to focus the inquiry on actual innocence. In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on "actual innocence" allows the reviewing tribunal to consider the probative force of relevant evidence that was either excluded or unavailable at trial. . . . The habeas court must make its determination concerning the petitioner's innocence in light of all the evidence, including . . . evidence tenably claimed to have been wrongly excluded or to have become available only after trial.
. . . .
. . . [A]ctual innocence does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.Id. (internal quotation omitted).
Applying the Schlup standard of actual innocence to the Petitioner's case, Petitioner has not persuaded this Court that no juror, acting reasonably, would have found him guilty beyond a reasonable doubt.
Petitioner argues that he presents substantially the same claims as those presented by his mother and that he should therefore be granted the same relief. However, the evidence presented at trial against Petitioner differed in several critical respects from the evidence presented against his mother. Admission of the allegations of sexual abuse would have had a markedly different impact on Sharon Rockwell's ability to present a defense than on Petitioner's.
The evidence implicating Sharon Rockwell in the assault against her husband was based solely upon the conversations she permitted and engaged in regarding killing Edward Rockwell. In contrast, the case against Petitioner based upon additional incriminating statements and actions. Other evidence was presented against Petitioner which tended to show that Petitioner acted upon these conversations. Petitioner was present in the Rockwell home when Edward Rockwell was assaulted first by Mario Stitt and then by Jeffrey Greene. Following the attack by Greene, after Edward was able to wrest the bat from Greene, Petitioner stepped into the living room. Edward asked Petitioner to call 911, but Petitioner did not.
In his affidavit in support of the petition for writ of habeas corpus, Petitioner admits that his father asked him to call an ambulance, to which he replied, "f__k you. What'd ya do?" He states that his father then told him to call an ambulance, but Petitioner refused and his father placed the call himself. See Affidavit of Hal Rockwell, Jr., in support of petition for writ of habeas corpus.
In addition, Sandra Orr testified at trial that on the evening of the assault, at approximately 9:00 p.m., Orr, Sharon Rockwell, and Petitioner's younger brothers were on their way into a restaurant when they were met by Petitioner, Mario Stitt, and Jeffrey Greene in the restaurant parking lot. Orr testified that Petitioner was visibly upset and told the group that he was going to go back to the house and "do it." Trial transcript, 10/16/89, pp. 134-35.
Testimony was also presented at trial that, approximately one month before the baseball bat incidence, someone cut the brake lines in Edward Rockwell's car. Eddie Hughes, Jr., a friend of Petitioner's, testified that one day Petitioner entered the Rockwell home and told him "Dad almost had a fun ride to work today." Trial transcript, 10/16/89, p. 76. Hughes testified that, when asked what he meant, Petitioner responded, "We cut the brake lines." Id. at 77. Paul Light also testified that Petitioner confessed to cutting the brake lines. Trial transcript, 10/17/89, p. 159.
The only evidence Petitioner offers in support of his claim of actual innocence is the excluded evidence regarding his father's sexual abuse of Petitioner and his brothers. The Court is not persuaded that this evidence establishes that no reasonable juror would have found Petitioner guilty.
Admission of the allegations of sexual abuse may have made Petitioner's feelings about his father more understandable to the jury. However, the allegations would not have counterbalanced the testimony regarding Petitioner's statement about the brake lines and his statement that he was going to "do it," sufficiently for the Court to conclude that no reasonable juror could have found Petitioner guilty. In fact, it is just as likely that after hearing the allegations of sexual abuse, a juror may have concluded that these allegations provided Petitioner with even more of a motive to kill his father. Therefore, in Petitioner's case, a reasonable juror could have determined that the allegations of sexual abuse, rather than exonerating Petitioner, provided a motive for Petitioner to want to kill his father.
Thus the Court determines that Petitioner has failed to assert a credible claim of actual innocence sufficient to excuse the one-year limitations period.
IV. Conclusion
For the foregoing reasons, the Court concludes that the habeas corpus petition was filed outside the one-year limitations period prescribed in 28 U.S.C. § 2244 (d)(1)(A). Further, the Court concludes that Petitioner has failed to establish extraordinary circumstances beyond his control which would warrant equitable tolling of the limitations period.
Accordingly. IT IS ORDERED that the Respondent's Motion to Dismiss is GRANTED.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 2244 (d)(1)(A).