Opinion
Case Number 00-10330-BC.
December 29, 2004
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Michael Stanley, presently confined at Camp Koehler in Kincheloe, 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 assault with intent to do great bodily harm less than murder and breaking and entering with intent to commit a felony following a jury trial in the Genesee County Circuit Court in 1990. He was subsequently sentenced to concurrent terms of ten to fifteen and fifteen to twenty-two and a half years imprisonment. The petitioner presently remains incarcerated only on the breaking and entering conviction. In his pleadings, the petitioner challenges the effectiveness of his trial and appellate counsel, the trial court's jury instructions, the impartiality of the trial judge, the prosecutor's conduct during trial, and the sufficiency of the evidence supporting his convictions.
The respondent has filed an answer to the petition asserting, in part, that it be dismissed for failure to comply with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). The Court concludes that the petition was filed out of time in this Court and that the late petition cannot be saved by the doctrine of equitable tolling. The Court, therefore, will dismiss the petition.
I.
Following his convictions and sentencing, the petitioner filed an appeal of right and a motion to remand with the Michigan Court of Appeals asserting that the prosecution presented insufficient evidence to support his assault conviction and that the trial court erred in imposing the maximum sentence. The Court of Appeals granted the motion to remand allowing the petitioner to advance a motion for a new trial and re-sentencing in the trial court. On remand, the trial court denied the petitioner's motion, see Resp't.'s Answer Ex. A, and the Michigan Court of Appeals subsequently affirmed the petitioner's convictions and sentence. People v. Stanley, No. 133285 (Mich.Ct.App. Sept. 1, 1993) (unpublished). The petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Stanley, 445 Mich. 873, 519 N.W.2d 164 (April 29, 1994).In April, 2000, the petitioner apparently requested and received his trial court file from the Genesee County Court Clerk. Upon receipt of the file, the petitioner claims he first learned of the Michigan Court of Appeals' order of remand and the trial court's subsequent hearing and decision.
On September 28, 2000, the petitioner filed an initial petition for writ of habeas corpus with this Court and a motion requesting the appointment of counsel. The petitioner asserted that his sentence was both illegal and void and he was denied access to the courts thereby preventing him from collaterally attacking his convictions and sentence. The Court dismissed the petition without prejudice for failure to exhaust state court remedies, held the matter in abeyance, and closed the case for administrative purposes. See Orders dated July 31, 2001 and October 5, 2001.
On September 17, 2001 the petitioner notified the Court that he had filed a delayed motion with the state trial court seeking a new trial and an evidentiary hearing. In his motion, filed on May 30, 2000, the petitioner challenged the effectiveness of his trial and appellate counsel, the trial court's jury instructions, the impartiality of the trial judge, and prosecutor's conduct at trial. The trial court construed the motion as one for relief from judgment and denied it on May 18, 2002. See Trial Tr. 5/18/02. The petitioner then filed a delayed application for leave to appeal this decision with the Michigan Court of Appeals, which was denied. See People v. Stanley, No. 242853 (Mich.Ct.App. April 1, 2003) (unpublished). The petitioner's delayed application for leave to appeal to the Michigan Supreme Court was also denied. See People v. Stanley, 671 N.W.2d 52 (Mich. Oct. 31, 2003) (table).
In January, 2004, the petitioner filed a motion to reinstate his case before this Court, which was granted on February 9, 2004. As part of his motion, the petitioner included an amended habeas petition challenging the effectiveness of his trial and appellate counsel, the trial court's jury instructions, the impartiality of the trial judge, the prosecutor's conduct at trial, and the sufficiency of the evidence supporting his convictions. On July 29, 2004, the respondent filed an answer to the amended petition alleging that it should be dismissed for failure to comply with the one-year statute of limitations and, alternatively, that the claims are procedurally defaulted and otherwise lack merit.
II.
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) (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 or on the merits, 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); Allen v. Hardy, 478 U.S. 255, 258 n. 1 (1986); see Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Prisoners whose direct appeals concluded prior to the AEDPA's effective date have a one-year grace period to file their habeas petitions. See Brown v. O'Dea, 187 F.3d 572, 576-577 (6th Cir. 1999).
Under this formula, the petitioner's convictions became final on July 28, 1994, ninety days after the Michigan Supreme Court denied his leave application. He therefore had until April 24, 1997, one year after the AEDPA's effective date, to file his habeas petition, 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 filed his initial habeas petition with this Court on September 28, 2000. Thus, the one-year grace period expired well before the petitioner sought federal habeas review. 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 follows 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.Dunlap, 250 F.3d at 1008.
The only argument that the petitioner advances in support of equitable tolling is that he first learned of the Michigan Court of Appeals' order of remand and the trial court's subsequent hearing and decision on remand in April, 2000 when he requested and received his trial court file from the Genesee County Court Clerk. The petitioner, however, does not explain why such information is relevant to his habeas claims or why his alleged ignorance of those proceedings impeded his ability to seek habeas or other post-conviction relief in a timely fashion. Furthermore, the petitioner does not claim that he was unaware of the Michigan Court of Appeals' 1993 decision affirming his convictions or the Michigan Supreme Court's 1994 denial of his application for leave to appeal. The record in fact indicates that the petitioner was made aware of these developments. See Resp't.'s Answer Ex. I, J. The petitioner therefore has not alleged facts which warrant 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 for a period of time similarly does not warrant tolling. See 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). Lastly, the petitioner has not shown diligence in seeking habeas relief; he filed his initial habeas petition more than six years after his convictions 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 that the petition for writ of habeas corpus [dkt # 12] is DISMISSED.