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declining to equitably toll the statute based on the fact that a petitioner is untrained in the law
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Case No. 03-10024-BC
March 16, 2004
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT AND DISMISSING PETITION AS UNTIMELY FILED
The petitioner, Anthony Sinclair, presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, has filed a pro se application 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 first-degree murder following a jury trial in the Wayne County Circuit Court and was sentenced to life imprisonment without the possibility of parole in 1994. In his pleadings, the petitioner asserts that there was insufficient evidence to support his conviction, that Michigan's corpus delicti rule was violated, and that he was denied the effective assistance of appellate counsel. The respondent has filed a motion to dismiss and for summary judgment contending that the petitioner failed to comply with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). The petitioner filed a response to the motion. The Court concludes that the petition was filed out of time in this Court and the late petition cannot be saved by the doctrine of equitable tolling. The Court, therefore, will grant the respondent's motion and dismiss the petition.
I.
Following sentencing, the petitioner filed an appeal of right with the Michigan Court of Appeals, which affirmed his conviction. People v. Sinclair, No. 173200 (Mich.Ct.App. April 2, 1996). The petitioner's delayed application for leave to appeal to the Michigan Supreme Court was denied on October 28, 1996. People v. Sinclair, 453 Mich. 923, 554 N.W.2d 912 (1996).
The petitioner contends that he filed a motion for relief from judgment on August 18, 1999 in the trial court. The circuit court docket sheet indicates that the motion was filed on June 4, 2001. In any event, the petitioner concedes that the statute of limitations for federal habeas review had already expired using either date. The trial court denied the motion, and the petitioner filed a delayed application for leave to appeal this decision in the Michigan Court of Appeals, which was denied. See People v. Sinclair, No. 237329 (Mich.Ct.App. April 24, 2002). The petitioner's delayed application for leave to appeal to the Michigan Supreme Court was denied. People v. Sinclair, _ Mich._, 654 N.W.2d 334 (Dec. 4, 2002).
The petitioner filed the present petition for a writ of habeas corpus, dated January 2, 2003, on February 27, 2003.
II.
The respondent has filed a motion to dismiss and for summary judgment contending that the petition is untimely. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996 and governs the filing date for the habeas application in this case because petitioner filed his petition after the effective date of the Act. 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. See Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003). The one year statute of limitations runs 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.28 U.S.C. § 2244(d)(1). A habeas petition filed outside the time period prescribed by this section must be dismissed. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001) (case filed thirteen days after the limitations period expired dismissed for failure to comply); Wilson v. Birkett, 192 F. Supp.2d 763, 765 (E.D. Mich 2002).
A Michigan prisoner's conviction becomes "final" ninety days after the Michigan Supreme Court renders its decision denying leave to appeal on direct appeal, accounting for the period within which the defendant may apply to the United States Supreme Court for a writ of certiorari. If a certiorari petition is actually filed, then the conclusion of Supreme Court proceedings establishes the finality date under § 2244(d)(1). 28 U.S.C. § 2244(d)(1)(A); Sup.Ct. R. 13(1); Alien v. Hardy, 478 U.S. 255, 258 n.l (1986); see Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
In this case, the petitioner completed his direct appeals in the Michigan courts on October 28, 1996. He then had 90 days in which to file a petition for a writ of certiorari with the United States Supreme Court. His conviction thus became final on January 26, 1997 when the time for seeking a writ of certiorari with the United States Supreme Court had expired. See § 2244(d)(1)(A); Bronaugh, 235 F.3d at 283; see also Clay v. United States, 537 U.S. 522, 528 n. 3, 529 (2003) (holding that a federal conviction becomes final under § 2255 when the time expires for filing a petition for certiorari challenging the appellate court's affirmation of the conviction, the same as what occurs for direct review of state convictions under § 2244(d)(1)). Accordingly, the petitioner was required to file his federal habeas petition on or before January 26, 1998, 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).
The petitioner did not file his motion for relief from judgment in the state trial court until June 4, 2001. Thus, the one-year limitations period expired before he sought state post-conviction review. A state post-conviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. See Vroman, 346 F.3d at 602; Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002); Grayson v. Grayson, 185 F. Supp.2d 747, 750 (E.D. Mich. 2002).
The 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 barred 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. See Griffin v. Rogers, 308 F.3d 647, 652 (6th Cir. 2002). In Dunlap 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-factor analysis set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The factors which the Court is to consider 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.Dunlop, 250 F.3d at 1008.
In his pleadings, the petitioner does not allege any facts that would support a claim for equitable tolling of the one-year 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. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (holding that "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse [late] filing"); Holloway v. Jones, 166 F. Supp.2d 1185, 1189 (E.D. Mich. 2001) (lack of professional legal assistance does not justify tolling).
The petitioner contends that his petition should be equitably tolled because his claims have merit and he is "actually innocent" of the crime for which he was convicted. No actual innocence exception to Section 2244(d)(1) exists in the language of the statute itself, and the Sixth Circuit has yet to endorse an actual innocence exception. See Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). At least one judge in this District, however, has held that an actual innocence exception exists that would toll the one-year limitations period of § 2244(d)(1). See Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D. Mich. 2001) (Tarnow, J.). To support a claim of actual innocence, a petitioner in a collateral proceeding "must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623 (1998). A valid claim of actual innocence requires a petitioner "to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Furthermore, actual innocence means "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. The petitioner has made no such showing in this case.
Lastly, the petitioner has not shown diligence in seeking habeas relief given that he filed his motion for relief from judgment more than four years after his conviction became final. The petitioner thus has failed to demonstrate that he is entitled to equitable tolling of the one-year limitations period. See Dunlap, 250 F.3d at 1010; Jones v. Gundy, 100 F. Supp.2d 485, 488 (W.D. Mich. 2000).
III.
The Court concludes that the petition for a writ of habeas corpus was not filed in this case within the time permitted by 28 U.S.C. § 2244(d).
Accordingly, it is ORDERED the respondent's motion to dismiss and for summary judgment [dkt # 9] is GRANTED.
It is further ORDERED that the petition for writ of habeas corpus is DISMISSED.