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Whilby v. Cason

United States District Court, E.D. Michigan, Southern Division
Jun 22, 2001
Civil Case No. 01-CV-71550-DT (E.D. Mich. Jun. 22, 2001)

Opinion

Civil Case No. 01-CV-71550-DT

June 22, 2001


OPINION AND ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO COMPLY WITH THE STATUTE OF LIMITATIONS


Petitioner, an inmate at the Mound Correctional Facility in Detroit, Michigan, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. The habeas petition states that Petitioner was convicted of first-degree felony murder and assault with intent to commit great bodily harm less than murder following a jury trial in the Recorder's Court for the City of Detroit in 1988 and was sentenced to life imprisonment without the possibility of parole on the murder conviction and 3-10 years imprisonment on the assault conviction. Petitioner only challenges the murder conviction in the present petition.

I. Procedural History

Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, claiming that there was insufficient evidence to support his convictions. The Michigan Court of Appeals affirmed his convictions. People v. Whilby, No. 113770 (Mich.Ct.App. June 12, 1990) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Whilby, No. 89490 (Mich. Feb. 25, 1991). On January 25, 1993, Petitioner filed a motion for relief from judgment with the trial court, raising claims of prosecutorial misconduct, ineffective assistance of trial and appellate counsel, jury instructional error, and cumulative error. The trial court denied the motion. People v. Whilby, No. 88-07500 (Recorder's Ct. March 1, 1993). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Whilby, No. 162706 (Mich.Ct.App. June 30, 1993). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Whilby, No. 97463 (Mich. May 27, 1994).

On April 21, 1997, Petitioner filed a second motion for relief from judgment with the trial court, asserting that there was newly-discovered evidence of innocence which required a new trial or an evidentiary hearing. The trial court denied the motion. People v. Whilby, No. 88-07500 (Recorder's Ct. Dec. 9, 1997). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Whilby, No. 216282 (Mich.Ct.App. Oct. 13, 1999). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Whilby, No. 115780 (Mich. April 25, 2000).

Petitioner, through counsel, filed the present petition for writ of habeas corpus on April 20, 2001, asserting claims of newly-discovered evidence, jury instructional error, insufficient evidence, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. This Court ordered Petitioner to show cause why the matter should not be dismissed for failure to comply with the one-year statute of limitations applicable to federal habeas actions. Petitioner filed a reply to the Court's order on June 5, 2001 asserting that he is "actually innocent" and that the limitations period should be equitably tolled. For the reasons discussed below, the Court dismisses the petition for failure to comply with the applicable statute of limitations.

II. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996. The AEDPA governs the filing date for the habeas application in this case because Petitioner filed his application after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Among other things, 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. Matthews v. Abramajtys, 39 F. Supp.2d 871, 872 (E.D. Mich. 1999) (Tarnow, J.). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244(d)(1)(A). The revised statute provides that:

(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).

Petitioner's conviction became final before the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final prior to the AEDPA's effective date are given a one-year grace period in which to file their federal habeas petitions. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Accordingly, Petitioner was required to file his federal habeas petition on or before April 24, 1997, 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).

Petitioner filed his second motion for relief from judgment on April 21, 1997. Thus, 362 days of the limitations period had expired (from April 24, 1996 to April 21, 1997). Petitioner then pursued his state court remedies until the Michigan Supreme Court denied leave to appeal on April 25, 2000. The AEDPA's one-year statute of limitations period was thus tolled from April 21, 1997 to April 25, 2000 while Petitioner's motion for relief from judgment was properly filed and pending. The AEDPA's limitations period is only tolled while a prisoner has a properly filed post-conviction motion under consideration. 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir. 2000); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); see also Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999) (Cohn, J.).

Once the Michigan Supreme Court denied Petitioner's application for leave to appeal the denial of his motion for relief from judgment, Petitioner only had three days remaining before the one-year period expired. The limitations period did not begin to run anew after the completion of his post-conviction proceedings. See Searcy v. Carter, ___ F.3d ___, 2001 WL 326768, *4 (6th Cir. April 5, 2001); Cromwell v. Keane, 33 F. Supp.2d 282, 285 (S.D.N.Y. 1999). Petitioner was thus required to file his federal habeas petition by April 28, 2000. Petitioner did not file the instant habeas petition until April 20, 2001 — almost one year after the expiration of the one-year period. Thus, Petitioner's present habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d).

Petitioner asserts that the limitations period should not bar his petition because he is "actually innocent" of felony murder. Even assuming that the actual innocence of a petitioner permits the filing of an untimely habeas petition, Petitioner has failed to make a such a showing. 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.

In this case, Petitioner was convicted of felony murder arising from the beating death of a victim during an armed robbery. The contested issue at trial was whether Petitioner aided and abetted the killing. In support of his actual innocence claim, Petitioner offers the June 8, 1996 affidavit of co-defendant Titus Williams, who pleaded guilty to second-degree murder on May 26, 1996. In that affidavit, Mr. Williams admits that he killed the victim during the armed robbery, but states that he did not intend the death and that he was not aided and abetted in the killing by Petitioner or another co-defendant.

Williams' affidavit, however, does not support a claim of actual innocence. Mr. Williams' assertions concerning Petitioner's intent are unreliable, particularly since they were made following Williams' guilty plea proceedings. Further, as the petition indicates, there was significant evidence presented at trial to support the jury's verdict. Under Michigan law, a person who commits murder during the perpetration of a felony is guilty of first-degree murder punishable by life imprisonment. Mich. Comp. Laws § 750.316. To prove murder under Michigan law, the State must prove that the defendant acted with malice in causing the death of another. People v. Dumas, 454 Mich. 390, 396 (1997) (citing People v. Aaron, 409 Mich. 672, 728 (1980)). Malice requires proof of intent to kill, intent to do great bodily harm, or wanton and willful disregard of the likelihood that the natural tendency of one's behavior is to cause death or do great bodily harm. Id. at 396. For purposes of felony murder, malice may not be inferred from the intent to commit the underlying felony alone. Id. at 398 (citing Aaron, 409 Mich. at 727-28). Malice, however, may be inferred from the facts and circumstances of the underlying felony. Id.

The evidence presented at trial revealed that Petitioner planned and participated in the armed robbery, supplied a gun to be used in the robbery, brought a lug wrench to the robbery, and used the lug wrench to strike another victim in the head during the robbery. A jury could reasonably infer from these facts that Petitioner acted with sufficient malice to support his felony murder conviction. Considering all of the evidence, this Court cannot say that it is more likely than not that no reasonable juror would have convicted Petitioner if presented with Williams' affidavit. Because Petitioner has failed to assert a credible claim of actual innocence, he is not entitled to have the statute of limitations tolled in this case. See Rockwell v. Jones, 2000 WL 973675, *5-7 (E.D. Mich. June 30, 2000) (Cohn, J.); see also Thomas v. Straub, 10 F. Supp.2d 834, 836 (E.D. Mich. 1998) (Duggan, J.).

Petitioner also claims that the limitations period should be equitably tolled because the state of the law was unclear during the time when the one-year grace period ran. In Dunlap v. United States, ___ F.3d ___, 2001 WL 473063 (6th Cir. May 7, 2001), the United States Court of Appeals for the Sixth Circuit held that the limitations period set forth in 28 U.S.C. § 2254 and 2255 is not a jurisdictional bar and may be equitably tolled. The Dunlap court also ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test 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, 2001 WL 473063 at *5. In Dunlap, the habeas petition was filed two months after the one-year period expired. The court found that the petitioner did not provide a satisfactory explanation for failing to timely file the petition and concluded that he failed to exercise due diligence in pursuing his claim and was not entitled to equitable tolling of the limitations period. Id. at *8.

In this case, Petitioner claims that he should not be bound by the one-year period because he was convicted prior to the AEDPA's passage and the law was unsettled concerning the one-year grace period applicable to his petition until the Sixth Circuit's decision in Brown v. O'Dea, 187 F.3d 572 (6th Cir. 1999), vacated on other grounds, 530 U.S. 1257 (2000). This claim is without merit. Petitioner knew or should have known of the one-year limitations period and its tolling provision when the AEDPA went into effect. Petitioner does not allege that he was unaware of the statute of limitations at the time of its enactment. Moreover, the fact that he filed his state court motion for relief from judgment on April 21, 1997, just prior to the expiration of the one-year grace period, indicates that he was aware of the statute of limitations. Additionally, even assuming that Petitioner first learned of the one-year grace period in 1999, his state post-conviction proceedings were not concluded until April 25, 2000. At that point, he knew or should have known that he only had a few days in which to timely file his federal petition. Petitioner, however, waited almost another full year to seek habeas relief. Petitioner does not indicate any reasons for this delay nor does he assert that prison officials impeded his knowledge of, or compliance with, the statute of limitations.

Petitioner obtained Williams' affidavit in June, 1996, yet he waited until April, 1997 to file his second state court motion for relief from judgment. At the conclusion of those proceedings, he waited another year to file his federal habeas petition. Petitioner has not shown that he exercised due diligence in seeking state post-conviction or federal habeas relief. He is thus not entitled to equitable tolling of the limitations period. See Dunlap, supra; Jones v. Gundy, 100 F. Supp.2d 485, 488 (W.D. Mich. 2000).

III. Conclusion

This Court thus concludes that Petitioner has failed to file his petition for a writ of habeas corpus within the one-year statute of limitations and has not demonstrated that he is actually innocent of his crimes or that the limitations period should be equitably tolled.

Additionally, before Petitioner may appeal this Court's dispositive decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed.R.App.P. 22(b). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed.R.App.P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

When a federal district court denies a habeas claim on procedural grounds without addressing the claim's merits, a certificate of appealability should issue, and an appeal of the district court's order may be taken, if the petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, ___ U.S. ___, 120 S.Ct. 1595, 1604 (2000). When a plain procedural bar is present and the district court is correct to invoke it to dispose of the matter, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed. In such a case, no appeal is warranted. Id. The Court is satisfied that jurists of reason could not find this Court's procedural ruling debatable. Therefore, the Court determines that no certificate of appealability is warranted in this case.

Accordingly;

IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is not warranted in this case.


Summaries of

Whilby v. Cason

United States District Court, E.D. Michigan, Southern Division
Jun 22, 2001
Civil Case No. 01-CV-71550-DT (E.D. Mich. Jun. 22, 2001)
Case details for

Whilby v. Cason

Case Details

Full title:CRAIG WHILBY, Petitioner, v. JOHN CASON, Respondent

Court:United States District Court, E.D. Michigan, Southern Division

Date published: Jun 22, 2001

Citations

Civil Case No. 01-CV-71550-DT (E.D. Mich. Jun. 22, 2001)