Opinion
Civil No. 03-5700 (JRT/JSM).
August 4, 2004
Michael T. Wilson, #168370, Minnesota Correctional Facility, Bayport, Minnesota, petitioner pro se.
Thomas R. Ragatz, Assistant Attorney General, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, St. Paul, Minnesota, for respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Petitioner Michael Wilson filed this petition for writ of habeas corpus, alleging that he received ineffective assistance of counsel. United States Magistrate Judge Janie Mayeron recommended that the petition be dismissed as time barred. For the reasons discussed below, the Court adopts the Report and Recommendation of the Magistrate Judge.
BACKGROUND
Petitioner pleaded guilty to second-degree murder in Washington County District Court and was sentenced to 360 months in prison. On December 17, 2001, petitioner filed a post-conviction motion with the trial court, which was denied. The Minnesota Court of Appeals affirmed the trial court's decision, and upheld petitioner's conviction and sentence. Wilson v. State, No. C0-02-346 (Minn.Ct.App. 2002), 2002 WL 31056960 (unpublished opinion). On December 17, 2002, the Minnesota Supreme Court denied petitioner's request for further review.
"A pro se prisoner's petition for a writ of habeas corpus is filed on the date it is delivered to prison authorities for mailing to the clerk of the court." Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999). The cover letter accompanying petitioner's current habeas corpus petition is dated October 22, 2003; the petition was received in the clerk's office on October 27, 2003. The Court considers the petition to have been filed on October 22, 2003. In the instant petition, petitioner alleges that he received ineffective assistance from his trial counsel, who recommended that petitioner plead guilty and did not present a temporary insanity defense. Petitioner contends that he did not discover this "new evidence" until he spoke to his trial attorney on January 15, 2001, February 5, 2001, and April 2, 2001. The conversations were recorded.
In a Report and Recommendation issued December 29, 2003, Magistrate Judge Janie S. Mayeron recommended that the petition be summarily dismissed as untimely. Petitioner objected. For the following reasons, the Court adopts the Report and Recommendation.
ANALYSIS
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") established a one-year statute of limitations for habeas corpus petitions filed by state prisoners seeking federal court review of a conviction or sentence. 28 U.S.C. § 2244(d)(1). Section (d)(1) of the AEDPA details four possible measures for the beginning of the one-year period. Under § (d)(1)(D), which petitioner argues is applicable to the instant matter, the statute of limitations begins to run on "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)(D). Construing petitioner's allegations in the most favorable light possible, the latest date on which plaintiff could have discovered his attorney's failure to present a temporary insanity defense would have been the date of petitioner's last conversation with his attorney. The statute of limitations thus began to run on April 2, 2001.
The statute of limitations begins to run on the latest of the four possible dates indicated by the statute. 28 U.S.C. § 2244(d)(1). Under § (d)(1)(A), the statute of limitations begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Where, as is this case in this matter, direct review concluded before the date the AEDPA became effective, the one-year period begins to run on the date the statute became effective. Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999). Thus, in this case, under subsection (A), petitioner's one year period began on April 24, 1996 (and would have expired on April 24, 1997). Subsections (d)(1)(B) and (C) do not apply to this case. Thus, as discussed above, § (d)(1)(D), if applicable, would provide petitioner with the latest possible date for the start of the one-year period.
The AEDPA also provides, however, that the statute of limitations shall be tolled for "the time during which a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2). Under this provision, the one-year period will be suspended from the date on which an application for post-conviction relief is filed until its resolution is final. See Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001); see also Crews v. Horn, 360 F.3d 146, 150 (3rd Cir. 2004) (same); McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003) (same); Lloyd v. Van Natta, 296 F.3d 630, 631 (7th Cir. 2002) (same); Hill v. Braxton, 277 F.3d 701, 704-05 (4th Cir. 2002) (same); Smith v. McGinnis, 208 F.3d 13, 16 (2nd Cir. 2000) (same) (listing First, Fifth, Ninth, and Eleventh Circuit cases in agreement). The one-year period then resumes running from the day on which it left off. Id.
In this case, the statute of limitations ran for 259 days, from April 2, 2001 until petitioner filed his application for post-conviction relief on December 17, 2001. The time period did not begin to run again until December 17, 2002, the day the Minnesota Supreme Court denied petitioner's application for post-conviction relief. The one-year time period expired 108 days later, on April 2, 2003. As petitioner did not file the instant petition until October 22, 2003, the petition is untimely. The petition must therefore be dismissed with prejudice.
Petitioner has also requested a Certificate of Appealability. The Court may not grant a COA unless petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 523 (8th Cir. 1997). To make such a showing, the issues must be debatable among reasonable jurists, a court must be able to resolve the issues differently, or the case must deserve further proceedings. See Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994). In light of the very clear guidance from this and other circuits, the Court finds it unlikely that some other court would decide the issues raised in this petition differently. The Court also concludes that petitioner has not made the requisite "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Court therefore will not grant a Certificate of Appealability.
Additionally, petitioner applied for leave to proceed in forma pauperis. In light of the foregoing conclusion that the petition must be dismissed, the request is denied. See Kruger v. Erickson, 77 F.3d 1071, 1074 n. 3 (8th Cir. 1996) (application for leave to proceed in forma pauperis should be denied where petition is frivolous). Finally, petitioner's motion for leave to file a brief in support of his petition exceeding the applicable page limit is denied as moot.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES petitioner's objection [Docket No. 9] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 8]. Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's petition for writ of habeas corpus [Docket No. 1] is DENIED;
2. Petitioner's application to proceed in forma pauperis [Docket No. 2] is DENIED;
3. Petitioner's motion for extension of pages [Docket No. 3] is DENIED; and
4. For appeal purposes, the Court does not certify the issues raised in petitioner's motion.
5. This case is DISMISSED WITH PREJUDICE.
The Clerk of Court is respectfully directed to mail a copy of this Order to the petitioner.