Opinion
Case Number 03-10097-BC.
November 4, 2004
The petitioner, Marcus A. Harvey, presently confined at St. Louis Correctional Facility in St. Louis, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction and sentence for second-degree murder. The respondent has filed a motion for summary judgment contending that the petition was not filed timely in accordance with 28 U.S.C. § 2244(d)(1). The petitioner filed a response to the motion. The Court concludes that the petition was filed out of time in this Court and the late petition cannot be saved by the doctrine of equitable tolling. The Court, therefore, will grant the respondent's motion and dismiss the petition. The Court also will deny the petitioner's motion for miscellaneous relief as moot.
I.
On October 30, 1990, a jury in the Wayne County, Michigan Circuit Court found the petitioner guilty of one count of second-degree murder. Mich. Comp. Laws § 750.317. After sentencing, the petitioner claimed an appeal. Direct review of the conviction ended on July 30, 1993 in the Michigan courts when, following the affirmance of the conviction by the state court of appeals, the Michigan Supreme Court denied the petitioner leave to appeal. See People v. Harvey, 443 Mich. 856, 505 N.W.2d 584 (1993).
The petitioner filed a post-conviction motion for relief from judgment with the trial court on September 21, 1998 pursuant to Mich. Ct. R. 6.500, which was denied. People v. Harvey, No. 90-04921-01 (Wayne County Cir. Ct. Apr. 21, 1999). The State contends that the post-judgment motion was filed on October 20, 1998, but the dispute in the date is of no consequence here. An application for leave to appeal the order denying post-judgment relief was dismissed without prejudice by the state court of appeals for failure to pursue the case in conformity with the applicable court rules. People v. Harvey, No. 226504 (Mich.Ct.App. Oct. 11, 2000). The Michigan Supreme Court denied leave to appeal because the application had been filed more than fifty-six days after the Michigan Court of Appeals had dismissed petitioner's appeal.
The petitioner then filed a motion for reconsideration of the denial of the motion for relief from judgment, which the state trial court construed as a second motion for relief from judgment; it was denied pursuant to Mich. Ct. R. 6.502(G)(1) (barring successive post-conviction motions). See People v. Harvey, 90-04921-01 (Wayne County Cir. Ct. Feb. 27, 2001). The plaintiff's application for leave to appeal was dismissed by the state court of appeals pursuant to Mich. Ct. R. 6.502(G)(1) on the ground that the court lacked jurisdiction to review the denial of a second motion for relief from judgment. People v. Harvey, No. 235736 (Mich.Ct.App. Aug. 22, 2001). The Michigan Supreme Court denied petitioner's application for leave to appeal on April 29, 2002. People v. Harvey, 466 Mich. 853, 643 N.W.2d 575 (2002). The instant petition for writ of habeas corpus was signed and dated April 8, 2003; the Court considers it filed as of that date under the prison mailbox rule. See Neal v. Bock, 137 F. Supp. 2d 879, 882 n. 1 (E.D. Mich. 2001).
II.
The respondent has filed a motion to dismiss and for summary judgment contending that the petition is untimely. "Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Sanders v. Freeman, 221 F. 3d 846, 851 (6th Cir. 2000) (quoting Fed.R.Civ.P. 56(c)). To defeat a motion for summary judgment, the non-moving party must set forth specific facts sufficient to show that a reasonable factfinder could return a verdict in his favor. Id. The summary judgment rule applies to habeas proceedings. Harris v. Stegall, 157 F. Supp. 2d 743, 746 (E.D. Mich. 2001).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), cert. denied, 531 U.S. 1201 (2001) (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).
In the present case, the petitioner's direct appeal in state court concluded on July 30, 1993. He then had 90 days in which to file a petition for a writ of certiorari with the United States Supreme Court. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). His conviction thus became final on October 29, 1993 when the time for seeking a writ of certiorari with the United States Supreme Court had expired. See § 2244(d)(1)(A); Bronaugh, 235 F.3d at 283; see also Clay v. United States, 537 U.S. 522, 528 n. 3, 529 (2003) (holding that a federal conviction becomes final under § 2255 when the time expires for filing a petition for certiorari challenging the appellate court's affirmation of the conviction, the same as what occurs for direct review of state convictions under § 2244(d)(1)). However, because the petitioner's conviction became final prior to the April 24, 1996 enactment date of the AEDPA, the petitioner had one year from this date to timely file a petition for habeas relief with the federal court. Porter v. Smith, 126 F. Supp. 2d 1073, 1074-75 (E.D. Mich. 2001). Absent state collateral review, the petitioner would have been required to file his petition for writ of habeas corpus with this Court no later than April 24, 1997 in order for the petition to be timely filed. Id. at 1075.
The petitioner filed a post-conviction motion for relief from judgment with the state trial court on September 21, 1998. Under 28 U.S.C. § 2244 (d)(2), the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute. Corbin v. Straub, 156 F. Supp. 2d 833, 836 (E.D. Mich. 2001). However, the one-year limitations period expired before he sought state postconviction review. A state post-conviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. See Vroman, 346 F.3d at 602; Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002); Grayson v. Grayson, 185 F. Supp. 2d 747, 750 (E.D. Mich. 2002). The limitations period is not reset upon the conclusion of state collateral review. Neal v. Bock, 137 F. Supp. 2d 879, 884 (E.D. Mich. 2001); see also Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001) (holding that although the filing of this motion for relief from judgment "may have tolled the running of the one-year statute, it did not cause the statute to begin running anew when the state court denied the motion").
In his response to the motion for summary judgment, the petitioner contends that the Court should equitably toll the one-year limitations period. Indeed, 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 is 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. However, the court of appeals also noted that the doctrine of equitable tolling should be used "sparingly." Dunlap, 250 F.3d at 1008. Unless the habeas petitioner has good reason for failing to file his petition before the limitations period expires, tolling does not occur because he "has failed to exercise due diligence in pursuing his claim." Id. at 1010. A habeas petitioner bears the burden of establishing that he is entitled to the equitable tolling of the one-year limitations period. Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003).
The petitioner first contends that he is entitled to equitable tolling because he is "an average layman untrained and unskilled in the law." "[A]n inmate's lack of legal training, poor education, or even his illiteracy does not give a federal court a reason to toll" the AEDPA's limitations period. Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (internal citation omitted). Likewise, neither a pro se habeas petitioner's claim that he did not have professional legal assistance, Wilson v. Birkett, 192 F. Supp. 2d 763, 766 (E.D. Mich. 2002) (internal citations omitted), nor that he was ignorant of the law would constitute extraordinary circumstances justifying the equitable tolling of the statute of limitations. Spencer v. White, 265 F. Supp. 2d 813, 818 (E.D. Mich. 2003); see also Moore v. Hawley, 7 F. Supp. 2d 901, 904 (E.D. Mich. 1998).
Next, the petitioner claims that the limitations period should be equitably tolled because he was unaware until early 2002 that the AEDPA's statute of limitations applied to his case. The statute of limitations cannot be tolled because a habeas petitioner is ignorant or unaware of the AEDPA's one-year limitation period. See Brown v. McKee, 232 F. Supp. 2d 761, 767 (E.D. Mich. 2002) (collecting cases); see also Cummings v. Yukins, 197 F. Supp. 2d 785, 787 (E.D. Mich. 2002); aff'd 61 Fed. Appx. 188 (6th Cir. 2003) (unpublished) (stating that the "fact that habeas petitioner unaware of statute of limitations for period of time does not warrant equitable tolling").
The petitioner also argues that he is entitled to equitable tolling because he had the mistaken belief that he had one year following the conclusion of his state post-conviction proceedings to timely file his petition with this Court. Equitable tolling is not warranted when a habeas petitioner is ignorant of the correct calculation of the limitations period in which he must file. See Pearson v. North Carolina, 130 F. Supp. 2d 742, 744 (W.D.N.C. 2001).
As a related claim, the petitioner contends that he was misled by the language contained in the case of Martin v. Jones, 969 F. Supp. 1058, 1061 (M.D. Tenn. 1997), which suggested that the one-year limitations period for filing a petition for writ of habeas corpus would not begin to run until exhaustion of both direct and post-conviction review. See Valentine v. Senkowski, 966 F. Supp. 239, 240-41 (S.D.N.Y 1997); see also Parisi v. Cooper, 961 F. Supp. 1247, 1248-49 (N.D. Ill. 1997). However, Martin was decided on July 21, 1997, after the one-year limitations period had expired in his case. The petitioner, therefore, cannot establish that his reliance on the language in Martin was the cause of his late filing in this Court.
The petitioner contends that his petition should be equitably tolled because his claims have merit and he is "actually innocent" of the crime for which he was convicted. No actual innocence exception to Section 2244(d)(1) exists in the language of the statute itself, and the Sixth Circuit has yet to endorse an actual innocence exception. See Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). At least one judge in this District, however, has held that an actual innocence exception exists that would toll the one-year limitations period of § 2244(d)(1). See Holloway v. Jones, 166 F. Supp. 2d 1185, 1190 (E.D. Mich. 2001) (Tarnow, J.). 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. The petitioner has made no such showing in this case and therefore the issue is not presented by the record. See Neal v. Bock, 137 F. Supp. 2d at 885.
The record contains no good reasons for granting relief from the filing requirements of Section 2244(d).
III.
The Court concludes that the petitioner failed to file his application for a writ of habeas corpus within the one-year limitations period established by 28 U.S.C. § 2244(d). The Court further concludes that the petitioner has failed to demonstrate any exceptional circumstances that would warrant equitable tolling of the limitations period.
Accordingly, it is ORDERED that respondent's motion for summary judgment [dkt # 7] is GRANTED.
It is further ORDERED that petitioner's writ of habeas corpus is DISMISSED with prejudice.
It is further ORDERED that petitioner's motion for miscellaneous relief [dkt # 30] is DENIED at moot.