Opinion
CIVIL ACTION NO. 02-CV-70753-DT
March 5, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL
Petitioner Terry Wilson, a state prisoner currently confined at the Hiawatha Correctional Facility in Kincheloe, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. For the reasons discussed below, the Court DISMISSES the habeas petition as untimely, for lack of subject matter jurisdiction, and/or for failure to state a claim upon which relief may be granted.
I. Facts and Procedural History
The habeas petition states that Petitioner was convicted of breaking and entering a building following a bench trial in the Recorder's Court for the City of Detroit in 1981. He was sentenced to six to ten years imprisonment. Petitioner states that he filed an appeal as of right in the Michigan Court of Appeals, which was denied, but did not seek leave to appeal with the Michigan Supreme Court. Petitioner also asserts that he filed a state court petition for a writ of habeas corpus with the Ingham County Circuit Court, which was denied and not further appealed.
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).
According to the Michigan Department of Corrections' Offender Tracking Information System (OTIS), Petitioner is currently incarcerated pursuant to a plea-based conviction for first-degree retail fraud, which was imposed by the Oakland County Circuit Court. Petitioner was sentenced to a term of one-year six months to 10 years imprisonment on January 15, 2002.
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. See 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).
The petition does not indicate when Petitioner filed his state court habeas petition. However, even assuming that Petitioner filed it prior to the expiration of the one-year grace period, it has long since been denied and Petitioner admits that he did not appeal the state court's denial to the Michigan appellate courts. Thus, the one-year limitations period has clearly expired. Petitioner does not assert that the State created an impediment to the filing of his habeas petition or that his claims are based upon newly-discovered facts or newly-recognized constitutional rights made retroactively applicable to his case. 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 not a jurisdictional bar and is subject to equitable tolling. 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-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, 250 F.3d at 1008. In his pleadings, Petitioner does not allege any circumstances which would warrant equitable tolling of the one-year period. His petition is thus untimely.
B. Subject Matter Jurisdiction
Further, even if the petition is considered timely, it is subject to dismissal for lack of subject matter jurisdiction. A federal court may only entertain a petition for a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). When a sentence has fully expired, a habeas petitioner is no longer "in custody" for the offense and thus cannot file an application for habeas relief from that conviction. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
A prisoner need not be physically confined in jail or prison to challenge his conviction or sentence in a habeas corpus proceeding. See Mabry v. Johnson, 467 U.S. 504, 506 n. 3 (1984) (prisoner's § 2254 action was not moot despite the fact that he had been paroled); see also Garlotte v. Fordice, 515 U.S. 39, 45-47 (1995) (prisoner serving consecutive sentences is in custody for all of those sentences in the aggregate, and may attack the sentence scheduled to run first, even after it has expired, until all the consecutive sentences have been served). The United States Supreme Court has "never held however, that a habeas petitioner may be "in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 491 (1989) ( per curiam). "The federal habeas statute gives the United States District Courts jurisdiction to entertain petitions for habeas relief only from persons who are in custody in violation of the Constitution or laws or treaties of the United States." Id. at 490 (quoting 28 U.S.C. § 2241(c)(3), emphasis supplied by the Supreme Court). Petitioner in this case has fully served his six to ten-year sentence for the breaking and entering conviction at issue. Thus, he is no "longer in custody pursuant to that conviction and the Court lacks subject matter jurisdiction over his claims.
C. Failure to State a Claim
To the extent that Petitioner may be asserting that the challenged conviction was used to enhance his current sentence, however, he satisfies the "in custody" requirement and the Court has jurisdiction over his claims. See Lackawanna Co. Dist. Attorney v. Coss, 531 U.S. 923, 121 S.Ct. 1567, 1573 (2001); Daniels v. United States, ___ U.S ___, 121 S Ct. 1578, 1584 (2001). Nonetheless, his petition must still be dismissed for failure to state a claim upon which relief may be granted.
In Coss and Daniels, the United States Supreme Court held that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue such remedies while they were available, or because the defendant did so unsuccessfully, the conviction is regarded as conclusively valid and a defendant generally may not challenge the enhanced sentence in proceedings under 28 U.S.C. § 2254 or 2255 on the basis that the prior conviction was unconstitutionally obtained. Coss, 121 S.Ct. at 1574; Daniels, 121 S.Ct. at 1583; see also Steverson v. Summers, 258 F.3d 520, 2001 WL 830452, *3-4 (6th Cir. July 25, 2001) (affirming dismissal of petition by federal prisoner challenging three expired state court convictions based upon Maleng, Coss, and Daniels). The only exceptions to this rule noted by the Supreme Court are when a petitioner claims that the underlying conviction was obtained in the absence of counsel in violation of the Sixth Amendment as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963) or when no review of the underlying conviction was available to the petitioner through no fault of his own. See Coss, 121 S.Ct. at 1574-75; Daniels, 121 S.Ct. at 1583-84.
No such circumstances are presented in this case. Petitioner's challenge to his breaking and entering conviction involves claims concerning the privilege against self-incrimination and the effectiveness of defense counsel and Petitioner does not assert that he was denied the opportunity to have that conviction reviewed. Petitioner has thus failed to state a claim upon which habeas relief may be granted.
III. Conclusion
This Court concludes that Petitioner has failed to file his petition for writ of habeas corpus within the one-year statute of limitations and has not alleged any circumstances which caused him to file outside the applicable time frame. Additionally, the Court concludes that Petitioner is no longer in custody pursuant to the challenged conviction and has failed to state a claim upon which relief may be granted.
Accordingly;
IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.