Opinion
Case No. 01-CV-74504-DT
November 26, 2002
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY DISPOSITION AND DISMISSING HABEAS CORPUS PETITION
Frederick Jerome Smith ("Petitioner") has filed an Application for the Writ of Habeas Corpus under 28 U.S.C. § 2254. Currently pending before the Court is respondent Kurt Jones Motion for Summary Disposition and Dismissal of the Petition for Writ of Habeas Corpus. The Court has concluded for the reasons given below that Respondent's Motion should be granted and the Habeas Corpus Petition should be dismissed for failure to comply with the statute of limitations.
I. Background
On March 9, 1984, a Recorder's Court jury in Detroit, Michigan found Petitioner guilty of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1), armed robbery, MICH. COMP. LAWS § 750.529, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. The convictions arose from testimony
that at 10 o'clock a.m. on September 13, 1983, [the complainant] opened her front door to [Petitioner] in the belief that he was her son-in-law, whom she was expecting. [Petitioner] quickly entered complainant's home, produced a handgun and prevented her from leaving.
Over the next two hours, [Petitioner] searched complainant's home for money, a bank book and guns and took into his possession $92 from complainant's purse as well as her J.C. Penney's charge card. [Petitioner] then forced complainant to engage in sexual relations, after which he seized the four-month old baby for whom she was babysitting and forced complainant to accompany him to the J.C. Penney's store at the nearby Northland Shopping Center. Under concealed gunpoint, [Petitioner] forced complainant to use her charge card to purchase clothes for him. At one point, complainant managed to silently mouth the word `robbery' to a Penney's sales clerk.
[Petitioner] testified at trial and introduced the testimony of five alibi witnesses. All testified that on September 13, 1983, [Petitioner] was observed on the east side of the City of Detroit at the time or near the time complainant was being robbed and assaulted in her home on the city's west side. The five alibi witnesses were George Snodgrass, [Petitioner's] friend of three to five years, George's mother, his stepfather and two male cousins.People v. Smith, 149 Mich. App. 189, 191-92 (1986).
The trial court sentenced Petitioner to two years in prison for the felony firearm conviction, followed by concurrent terms of thirty to sixty years in prison for the sex offense and ten to twenty years for the armed robbery. On January 28, 1986, the Michigan Court of Appeals affirmed Petitioner's convictions and sentence in a published opinion. See id. at 191. The Michigan Supreme Court denied Petitioner's letter request under former Michigan Court Rule 7.303, because it was "not persuaded that relief should be granted. . . ." People v. Smith, No. 78173 (Mich.Sup.Ct. June 30, 1986).
In 1990, Petitioner filed a motion to vacate his sentence. The trial court denied his motion, and both state appellate courts denied leave to appeal the trial court's decision. See People v. Smith, No. 124157 (Mich.Ct.App. March 19, 1990); People v. Smith, No. 88731 (Mich.Sup.Ct. Sept. 28, 1990).
On April 4, 1996, medical staff at the prison where Petitioner was confined allegedly informed Petitioner for the first time that he was a Hepatitis B carrier. Petitioner contends that he contracted the Hepatitis B virus before he was arrested for the charges in this case. On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became effective, and on September 23, 1996, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied Petitioner's motion after concluding that Petitioner had "failed to identify and support any reasonable theory upon which said relief should be granted." People v. Smith, No. 83006566-01 (Detroit Recorder's Court Nov. 7, 1996). Almost a year later on October 7, 1997, Petitioner moved for reconsideration of the trial court's decision or for a new trial based on newly discovered evidence. The trial court denied Petitioner's motion on May 15, 1998.
Petitioner appealed the trial court's decision to the Michigan Court of Appeals, which dismissed Petitioner's application as untimely. The court of appeals explained that the twelve-month period for taking an appeal began to run on the date that the trial court denied Petitioner's motion for relief from judgment, not on the date that the trial court denied Petitioner's motion for reconsideration. See People v. Smith, No. 217970 (Mich.Ct.App. April 29, 1999).
Petitioner then filed a delayed application for leave to appeal in the state supreme court. On January 31, 2000, the Michigan Supreme Court denied leave to appeal because Petitioner had "failed to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Smith, 461 Mich. 951 (2000).
Meanwhile, on October 20, 1998, Petitioner filed a motion to compel production of the complainant's medical records. The purpose of the motion was to determine whether the complainant had contracted Hepatitis B after the alleged assault for which Petitioner was convicted. On November 20, 1998, the trial court held a hearing on Petitioner's motion and apparently denied the motion from the bench. No written order followed the pronouncement from the bench.
Petitioner appealed the trial court's denial of his motion to compel production of medical records. On January 13, 2000, the Michigan Court of Appeals dismissed Petitioner's appeal for lack of jurisdiction. The court of appeals stated that the appeal was premature because the trial court had not entered a written order. The court noted that a trial court speaks through its written orders, not its opinions. See People v. Smith, No. 222936 (Mich.Ct.App. Jan. 13, 2000).
Instead of returning to the trial court for a written order, Petitioner unsuccessfully sought a rehearing in the court of appeals. Then he applied for leave to appeal in the Michigan Supreme Court. On November 29, 2000, the Michigan Supreme Court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed. . . ." People v. Smith, 463 Mich. 919 (2000).
Exactly one year later, on November 29, 2001, Petitioner filed his Habeas Corpus Petition through counsel. He claimed to have exhausted state remedies.
The Habeas Petition alleges that the prosecutor knowingly submitted false evidence to the jury through the perjured testimony of the prosecution's forensic experts. More specifically, the Habeas Petition alleges that the prosecutor failed to reveal (1) the results of a blood analysis conducted at the time of Petitioner' arrest, which indicated that Petitioner had contracted the Hepatitis B virus, and (2) laboratory reports, which indicated that no trace blood or semen was found on the complainant's clothing or washcloth. According to Petitioner, this information constituted exculpatory evidence, which would have cast doubt on the credibility of the prosecution witnesses. Respondent argues in his Motion for Summary Disposition that the Habeas Petition is time-barred.
II. Discussion
The AEDPA established a one-year statute of limitations for prisoners who attack their state court convictions under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d). Petitioner's conviction became final in 1986 before the AEDPA was enacted. Therefore, he had one year from April 24, 1996 (the effective date of AEDPA), or until April 24, 1997, to file his habeas petition. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002); Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999), overruled on other grounds, 530 U.S. 1257 (2000). Petitioner did not file his Habeas Petition until November 29, 2001. Therefore, the Habeas Petition is untimely, absent tolling.
Subsection (d) reads as follows:
(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).
A. Tolling under 28 U.S.C. § 2244(d)(2)
The period of limitation began to run on April 25, 1996, the day after the AEDPA was enacted. It continued to run until September 23, 1996, when Petitioner filed his motion for relief from judgment. 28 U.S.C. § 2244(d)(2). The statute arguably was tolled for the entire time that Petitioner's motion was under consideration in the state courts. Carey v. Saffold, ___ U.S. ___, ___, 122 S.Ct. 2134, 2138 (2002). Thus, under a generous reading of the record, the statute was tolled until January 31, 2000, when the Michigan Supreme Court denied leave to appeal the denial of Petitioner's motion for relief from judgment. The statute was not tolled for the additional time that Petitioner's motion to compel production of medical records remained under consideration in state court because discovery motions do not toll the statute of limitations. Hodge v. Greiner, 269 F.3d 104, 107 (2nd Cir. 2001).
The Court could have concluded that the period of limitation stopped tolling on or before April 29, 1999, when the Michigan Court of Appeals dismissed Petitioner's appeal from the denial of his motion for relief from judgment as untimely. See 28 U.S.C. § 2244(d)(2) (stating that "[t]he 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 [subsection 2244(d)]") (emphasis added). An application for post-conviction relief is "properly filed" for purposes of § 2244(d)(2) "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted) (emphasis added).
Even if the statute was tolled until November 29, 2000, when the state courts concluded their review of Petitioner's discovery motion, Petitioner did not file his habeas petition until a year later. The period of limitation also ran for about five months after the AEDPA was enacted, but before Petitioner filed his motion for relief from judgment in state court. Thus, the period of limitation ran for a total of about seventeen months, which is more than the twelve months permitted under AEDPA.
Petitioner's motion to vacate sentence, filed in 1990, has no impact on the statute of limitations because it was filed before the AEDPA became effective.
B. Equitable Tolling
Equitable tolling applies to the one-year limitation period for habeas corpus petitions. Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 649 (2001). However, "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. This list is not comprehensive; on the other hand, some factors may not be relevant in all cases. Cook, 295 F.3d at 521.
Petitioner does not claim that he lacked notice or constructive knowledge of the statute of limitations, and prejudice to the respondent may be considered only if the other factors of the test are met. Dunlap, 250 F.3d at 1009. The question, therefore, is whether Petitioner was diligent in pursuing his claims.
Petitioner did not file his motion for relief from judgment until five months after he allegedly learned that he carried the Hepatitis B virus. He also waited an entire year after the state courts concluded their review of his motions before filing his Habeas Petition, although he allegedly consulted Barry Scheck of the Innocence Project in 1998.
The Court concludes that Petitioner did not "act with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). Therefore, this is not an appropriate case for equitable tolling.
C. Exhaustion of State Remedies
Petitioner contends in a reply to Respondent's motion that he has not exhausted state remedies for his claims and that the period of limitation currently is tolled. The basis for Petitioner's argument is the fact that the trial court has not entered a written order on Petitioner's motion to compel production of the complainant's medical records.
Although the trial court failed to comply with a technicality of state law that requires a written order, the court ruled on Petitioner's motion to compel medical records, and the Michigan Supreme Court has completed its review of the trial court's decision. The only unfinished business is the trial court's written order, which will memorialize its previous decision. The Court concludes that Petitioner has exhausted state remedies for his habeas claim. See O'Sullivan v. Boerekel, 526 U.S. 838, 839-40, 845 (1999) (concluding that the exhaustion requirement is satisfied if a prisoner invokes one complete round of the State's established appellate review process, including a petition for discretionary review to a state supreme court).
D. Actual Innocence
Petitioner claims that he has discovered new evidence which proves beyond a reasonable doubt that he did not commit the crime for which he was charged. He alleges that he has DNA evidence to refute the evidence presented at trial through the prosecution's forensic experts. The Court construes these assertions to allege that the Court should equitably toll the statute of limitations on the ground that Petitioner is actually innocent.
The Court need not consider whether the Constitution requires an "actual innocence" exception to the AEDPA's statute of limitations unless Petitioner can demonstrate that he is actually innocent of the charges for which he was convicted. Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir.), cert. denied, 531 U.S. 873 (2000). "In order to demonstrate actual innocence in a so-called collateral proceeding, a petitioner must present `new reliable evidence that was not presented at trial' and "show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Id. (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995)).
The complaining witness in this case identified Petitioner at trial as the person who robbed and raped her. This testimony was bolstered by the fact that
[t]he complainant spent a period of at least two hours with [Petitioner] in her home, outside in broad daylight, and in a J.C. Penney's store. [Petitioner] made no attempt to disguise or conceal his face and complainant thus had ample opportunity to observe her assailant's appearance. Prior to the preliminary examination, complainant selected [Petitioner's] picture from a photographic display and positively identified [Petitioner] in a live line-up. Complainant also positively identified [Petitioner] at the preliminary examination. . . .Smith, 149 Mich. App. at 195.
Petitioner contends that, according to the forensic experts, no trace evidence linking him to the complainant was found on the complainant's clothing or wash cloth. However, an expert witness in serology and trace evidence testified that he found blood and semen on the victim's undergarment, washcloth, and mattress pad. (Tr. at 221-29). Although the expert later testified that he found no trace evidence, he appears to have been referring to hair, not body fluids, at that point in his testimony. (Tr. at 230). The other serologist who testified stated that blood found on the victim's undergarment and mattress pad was consistent with Petitioner's blood type, but not the victim's blood type. (Tr. 234-40).
Another witness defined trace evidence as skin, hair, and fiber samples, as well as body fluids. (Tr. at 199).
Petitioner also alleges that the experts' failure to detect the presence of the Hepatitis B virus in the body fluids found at the scene of the crime may be instrumental in his ultimate acquittal. Petitioner implies that, if the complainant has not been diagnosed as having Hepatitis B virus, he could not have been the person who robbed and attacked her, because the virus is highly contagious.
Neither one of the two serologists who testified in this case stated whether they analyzed Petitioner's and the complainant's blood for the Hepatitis B virus. Petitioner claims to be able to provide new DNA evidence, but he apparently has nothing with which to compare it. He alleges that, in 1999, the police destroyed the blood and semen evidence used at trial.
Petitioner has not submitted any new and reliable evidence of actual innocence. At most, he says that he might be able to prove his innocence. It is unlikely that "no reasonable juror would have found [Petitioner] guilty beyond a reasonable doubt" in light of new evidence that Petitioner carries the Hepatitis B virus. Therefore, Petitioner's implied claim of actual innocence is not credible.
III. Conclusion
Petitioner allowed the period of limitation to run for more than one year, and neither statutory nor equitable tolling is appropriate here even under a liberal interpretation of the facts. Furthermore, Petitioner's claim of actual innocence is not credible. Therefore, Respondent's Motion for Summary Disposition [Doc. #9] is GRANTED, and the Habeas Petition [Doc. #1] is DISMISSED. The Court declines to issue a certificate of appealability because reasonable jurists would not find it debatable whether the Habeas Petition states a valid claim of the denial of a constitutional right and whether the Court's procedural ruling is correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).