Opinion
Case Number: 02-10206-BC
March 25, 2003
OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Najib Shoucair, a state inmate currently incarcerated at the Marquette Correctional Facility in Marquette, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 that challenges several aspects of his conviction for placing an explosive with intent to destroy and causing damage to property, Mich. Comp. Laws § 750.206. The respondent has filed a motion for summary judgment seeking dismissal on the ground that the petition was not timely filed. The Court agrees that the petition is untimely, and will grant the motion.
1.
Following a jury trial in Recorder's Court for the City of Detroit, the petitioner was convicted of placing an explosive with intent to destroy and causing damage to property. On November 15, 1996, the petitioner was sentenced to three to twenty-five years imprisonment. The Michigan Court of Appeals affirmed the petitioner's conviction. People v. Shoucair, No. 200892 (Mich.Ct.App. Dec. 29, 1998). The petitioner did not file an application for leave to appeal in the Michigan Supreme Court. See Affidavit of Corbin R. Davis, Clerk, Michigan Supreme Court, October 28, 2002.
The petitioner filed the pending petition for a writ of habeas corpus on July 22, 2002.
2.
The 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. The 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 the petitioner's application. Lindh v. Murphy, 521 U.S. 320, 337 (1997). Among other changes, 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. A prisoner is required to file a federal habeas corpus petition within one year of completing direct review of the habeas claims or within one year from the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
In the present case, the petitioner was sentenced on November 15, 1996. The petitioner appealed his conviction to the Michigan Court of Appeals, which affirmed his conviction. Michigan Court Rule 7.302(C)(3) allows a defendant fifty-six days from the date of the Michigan Court of Appeals decision to file a delayed application for leave to appeal. Petitioner did not file an application for leave to appeal to the Michigan Supreme Court. See Affidavit of Corbin R. Davis, October 28, 2002. Thus his conviction became final when the time for seeking such review expired. The time for seeking such review expired and the limitations period commenced to run on February 23, 1999, fifty-six days after the Michigan Court of Appeals issued its opinion. See 28 U.S.C. § 2244(d)(1)(A); United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002).
Petitioner did not seek state collateral review of his conviction. Therefore, the limitations period expired on February 23, 2000.
Petitioner did not file his habeas corpus petition until July 22, 2002, over two years after the limitations period expired. His petition therefore is untimely.
The Sixth Circuit has joined other courts in holding that the AEDPA's limitations period is subject to equitable tolling under appropriate circumstances. Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001). Five factors must be considered in determining the appropriateness of equitably tolling a statute of limitations:
(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. Id. at 1004.
In this case, the petitioner has failed to articulate any justification for the untimeliness of his petition. His case therefore does not warrant equitable tolling of the limitations period.
Some courts have suggested that a claim of actual innocence of a habeas petitioner might permit the filing of an untimely habeas petition. Cromwell v. Keane, 33 F. Supp.2d 282, 286-87 (S.D.N.Y. 1999); Thomas v. Straub, 10 F. Supp.2d 834, 836 (E.D.Mich. 1998). This Court need not address that issue in this case, however, because the petitioner has failed to make a credible showing of actual innocence by offering new reliable evidence in support of his claim. See Neal v. Bock, 137 F. Supp.2d 879, 885 (E.D.Mich. 2001).
III.
The Court concludes that the petitioner failed to file his application for a writ of habeas corpus within the one-year limitations period established by 42 U.S.C. § 2244(d). The Court further concludes that the petitioner has failed to demonstrate any exceptional circumstances which would warrant equitable tolling of the limitations period.
Accordingly, it is ORDERED that the Respondent's Motion for Summary Judgment [dkt #10] is GRANTED.
It is further ORDERED that the petition for a writ of habeas corpus is DISMISSED with prejudice.