Opinion
No. 00-71533-DT
February 13, 2001
OPINION AND ORDER OF SUMMARY DISMISSAL
Lonnie James White, ("petitioner"), presently confined at the Southern Michigan Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction on one count of second degree murder, M.C.L.A. 750.317; M.S.A 28.549; and one count of possession of a firearm in the commission of a felony, M.C.L.A. 750.227b; M.S.A. 28.424(2). Respondent has filed a motion for summary judgment, contending that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). Petitioner has filed a response to the motion for summary judgment. For the reasons stated below, petitioner's application for a writ of habeas corpus is dismissed with prejudice.
I. BACKGROUND
Petitioner was convicted of the above offenses following a bench trial in the Detroit Recorder's Court on February 2, 1993. The Michigan Court of Appeals affirmed petitioner's conviction, but remanded the matter to the trial court for an evidentiary hearing on petitioner's ineffective assistance of counsel claim. People v. White, 163850 (Mich.Ct.App. August 15, 1995). Following an evidentiary hearing in the trial court, the Michigan Court of Appeals affirmed the trial court's denial of petitioner's motion for a new trial on the grounds of ineffective assistance of counsel. People v. White, 163850 (Mich.Ct.App. December 14, 1995). Petitioner attempted to file an application for leave to appeal to the Michigan Supreme Court, but the application was rejected by the Michigan Supreme Court as being untimely filed, because the application was received by the Michigan Supreme Court on February 9, 1996, which was more than fifty six days after the Michigan Court of Appeals had affirmed petitioner's conviction. Petitioner's motion for reconsideration was likewise rejected.
See Letter from Corbin R. Davis, Clerk of the Michigan Supreme Court, dated February 13, 1996, attached as Petitioner's Exhibit H.
See Letter from Corbin R. Davis, Clerk of the Michigan Supreme Court, dated February 27, 1996, attached as Petitioner's Exhibit I.
On April 25, 1997, petitioner filed a postconviction motion for relief from judgment with the Detroit Recorder's Court. After the trial court denied the motion and the Michigan Court of Appeals denied leave to appeal, the Michigan Supreme Court concluded petitioner's state postconviction proceedings on February 29, 2000, when it denied petitioner leave to appeal. People v. White, 609 N.W.2d 191 (2000). Petitioner filed the instant petition with this Court on March 19, 2000.
II. DISCUSSION
The instant petition for writ of habeas corpus must be dismissed because it has not been filed within the one year statute of limitations. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year statute of limitations shall apply to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1). The one year statute of limitation 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.
A federal court will dismiss a case where a petitioner for a writ of habeas corpus does not comply with the one year statute of limitations. Nelson v. McLemore, 2000 WL 654942 (E.D. Mich. May 22, 2000)(Borman, J.); Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D. Mich. 1998)(Duggan, J.).
The first issue the Court must address is when petitioner's conviction became final for purposes of triggering the AEDPA's one year statute of limitations. Respondent appears to argue that petitioner's conviction became final when the Michigan Supreme Court rejected petitioner's untimely application for leave to appeal on February 13, 1996. Because this was prior to the April 24, 1996 enactment date of the AEDPA, respondent concedes that petitioner would have had one year following the enactment date of the AEDPA to either timely file a petition with this Court or otherwise toll the limitations period. Petitioner, however, contends that the ninety day period that he would have following rejection of his application by the Michigan Supreme Court to seek a writ of certiorari with the United States Supreme Court should be included in determining when the limitations period commences. Under petitioner's argument, his conviction would become final on May 14, 1996.
The Court cannot accept petitioner's argument. It is true that the one year statute of limitations does not normally begin to run until the ninety day time period for filing a petition for writ of certiorari in the United States Supreme Court has expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). In this case, however, petitioner did not file a timely application for leave to appeal with the Michigan Supreme Court. In Eisermann v. Penarosa, 33 F. Supp.2d 1269, 1272 (D. Hawaii 1999), the federal district court rejected a similar argument, finding that the one year limitations period to file a habeas petition began to run ten days after the (Hawaii) Intermediate Court of Appeals affirmed petitioner's conviction, since under Hawaii law, petitioner had ten days following the affirmance of his conviction within which to apply for a writ of certiorari with the Hawaii Supreme Court, but failed to do so. The district court acknowledged that had petitioner timely filed for certiorari with the Hawaii Supreme Court, then at the conclusion of review by the Hawaii Supreme Court, he would have had ninety more days added to the calculation of the running of the statute of limitations. However, the court noted that petitioner's failure to apply for certiorari at the state court level divested the U.S. Supreme Court of jurisdiction to grant a writ of certiorari. Eisermann, 33 F. Supp.2d at 1272-1273, fn. 5 (citing to Flynt v. Ohio, 451 U.S. 619 (1981); Street v. New York, 394 U.S. 576 (1969)). The court concluded that by failing to timely apply for certiorari with the Hawaii Supreme Court, petitioner foreclosed having the ninety day period for seeking certiorari with the U.S. Supreme Court added to the calculation of the limitations period. Id.
Under M.C.R. 7.302(C)(3), petitioner had fifty six days to file a delayed application for leave to appeal with the Michigan Supreme Court. Rice v. Trippett, 63 F. Supp.2d 784, 787 (E.D. Mich. 1999)(Hackett, J.). The Michigan Supreme Court rejected petitioner's delayed application for leave to appeal because petitioner submitted his application beyond the fifty six day time period for seeking such review under M.C.R. 7.302(C)(3). Because petitioner did not timely file an application for leave to appeal with the Michigan Supreme Court, his conviction became final, for purposes of the AEDPA's statute of limitations, on February 9, 1996, fifty six days after the Michigan Court of Appeals affirmed his conviction. Gutierrez v. Elo, 2000 WL 1769559, * 2 (E.D. Mich. October 30, 2000).
A petitioner whose state court proceedings were completed prior to the effective date of the habeas reform law generally has one year from April 24, 1996, the effective date of the AEDPA, to file his or her petition for writ of habeas corpus with the federal court. Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000); Turner v. Smith, 70 F. Supp.2d 785, 787 (E.D. Mich. 1999)(Duggan, J.). Because petitioner's direct appeals ended prior to the effective date of the AEDPA, petitioner had until April 24, 1997 to file his federal habeas petition in order to comply with the statute of limitations, unless the one year period was somehow tolled.
Petitioner argues that the statute of limitations should be equitably tolled because of newly discovered evidence to support the factual predicate underlying his claims. 28 U.S.C. § 2244(d)(1)(D) indicates that the one year limitations period under the AEDPA begins to run from the date upon which the factual predicate for a claim could have been discovered through due diligence. In support of this argument, petitioner claims that at the conclusion of his direct appeals, he was prepared to file a petition for writ of habeas corpus with this Court, but after reviewing additional withheld discovery, transcripts, appellate briefs, and other materials, petitioner claims that he came across facts that were not known at trial or on his appeal by right, so he decided to return to the Michigan courts and raise these issues in his postconviction motion for relief from judgment.
Petitioner offers several items of evidence, which he contends were newly discovered evidence within the meaning of § 2244(d)(1)(D). Petitioner first claims that the prosecutor and police withheld several police reports and witness statements that would have exculpated him of this crime. Petitioner has attached a number of these police reports to both his petition and his motion in opposition to the motion for summary judgment. Petitioner claims that he learned of this evidence, which he claims was suppressed in violation of the trial court's discovery order, only after he filed a Freedom of Information Act request with the Detroit Police Department. A review of petitioner's materials shows that the Detroit Police Department granted petitioner's request for these materials on January 12, 1994 and provided him with this evidence. Petitioner acknowledges that he received the police reports and witness statements in January of 1994. Petitioner therefore had this information in his possession prior to the conclusion of his appeals and prior to the enactment date of the AEDPA. Because petitioner knew about this information prior to the enactment date of the AEDPA, he would have had a one year grace period from the enactment of the AEDPA to file his petition for writ of habeas corpus. See Powell v. Williams, 981 F. Supp. 1409, 1413 (D.N.M. 1997).
See Petitioner's Exhibit P.
See Motion in opposition to respondent's motion for summary judgment, p. 14.
Petitioner also contends that he has newly discovered evidence in the form of the affidavits of Theresa Thomas and his sister Clairessie White. Both affidavits are signed and dated November 2, 1996. Theresa Thomas was the girlfriend of Demetrias Samuels, one of the witnesses who testified against petitioner at his trial. Samuels was the brother of the victim in this case, Barbara White, who happened to be petitioner's estranged wife. In her affidavit, Thomas indicates that she and Samuels had been romantically involved since November of 1991. In her affidavit, Thomas claims that Samuels took the shotgun which was later identified as the murder weapon to work with him the evening that the victim was shot and returned with it the following morning. Petitioner claims that this evidence makes it highly unlikely that petitioner was ever in possession of the murder weapon. Petitioner's sister, in her affidavit, indicates that she traveled to all the places that the prosecution witnesses claimed that petitioner went to on the night of the murder and timed the trip. Petitioner's sister indicated that from her investigation, petitioner could not have traveled to all of the places that the prosecution witnesses claimed that he had been and still have been at the murder scene at the time that the shooting took place. Petitioner indicated that because he did not have any money for a private investigator, he had to rely on his family members to investigate the facts requested by petitioner.
See Petitioner's Exhibits M, N, and O.
The time commences under § 2244(d)(1)(D) when the factual predicate for a petitioner's claim could have been discovered through the exercise of due diligence, not when it was actually discovered by a given prisoner. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). Petitioner does not indicate when he first became aware of the facts contained in Thomas' or his sister's affidavits, nor does he explain the passage of nearly six months from the time he obtained the affidavits and the time that he filed his postconviction motion with the state courts. This Court is therefore unable to conclude that petitioner could not have discovered the factual predicate of his claim earlier through the exercise of due diligence. See Chism v. Johnson, 2000 WL 256875, *2 (N.D. Tex. March 7, 2000). Moreover, there is no indication that § 2244(d)(1)(D) applies to this case, because nothing indicates that petitioner needed years of diligent searching to uncover this evidence, particularly where one of the witnesses was his own sister and the other witness was the long time girlfriend of his brother-in-law. See Young v. Roth, 1998 WL 851502, *2 (N.D. III. December 3, 1998). Moreover, to the extent that the affidavits of Thomas and Clairessie White are being offered in support of his third claim that he is entitled to habeas relief on the basis of newly discovered evidence of his innocence, petitioner would not be entitled to tolling under § 2244(d)(1)(D), because this newly discovered evidence showing his innocence is actually the claim itself, rather than the factual predicate of an independent claim. Because claims of actual innocence based on newly discovered evidence do not state a ground for federal habeas relief absent an independent constitutional violation, petitioner would not be entitled to tolling under § 2244(d)(1)(D). See Clay v. Lungren, 1998 WL 283569, *2 (N.D. Cal. May 27, 1998)
Petitioner would also not be entitled to tolling under § 2244(d)(1)(D) for the time during which he reviewed any of these newly discovered materials in preparation for either his state postconviction motion or his federal habeas petition. Under § 2244(d)(1)(D), the time begins to run when petitioner knows, or through due diligence, could have discovered, the important facts for his or her claims, not when petitioner recognizes the facts' legal significance. Owens v. Boyd, 235 F.3d at 359; See also Hereford v. McCaughtry, 101 F. Supp.2d 742, 745 (E.D. Wis. 2000) (crucial determination under§ 2244(d)(1)(D) is whether the factual predicate for the claims, not their legal basis or all evidence supporting the claims, could have been discovered through the exercise of due diligence). This Court concludes that petitioner has failed to establish that he is entitled to avail himself of the tolling provisions of § 2244(d)(1)(D).
In the present case, petitioner filed a state postconviction motion for relief from judgment on April 25, 1997, the day that the one year grace period was set to expire. 28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly filed application for state postconviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute. Matthews v. Abramaftys, 39 F. Supp.2d 871, 874 (E.D. Mich. 1999)(Tarnow, J.). Although this motion tolled the limitations period, petitioner would not have had one year following the completion of his state postconviction proceedings to file his petition for writ of habeas corpus with the court. The proper calculation of the tolling provisions of 28 U.S.C. § 2244(d)(2) excludes the time during which a properly filed postconviction relief application is pending, but it does not reset or restart the date from which the one year statute of limitations begins to run. Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000). Petitioner therefore had only one day to seek federal habeas corpus review following denial of his state postconviction motion, where he filed his state postconviction motion after 364 of the 365 days for filing his federal habeas petition had run. Gray v. Waters, 26 F. Supp.2d 771, 772 (D. Md. 1998). Because the Michigan Supreme Court denied petitioner leave to appeal on February 29, 2000, petitioner only had one day remaining, until March 1, 2000, to timely file his petition with this Court. Because petitioner did not file his petition until March 19, 2000, his petition is time barred under the AEDPA's statute of limitations.
In the present case, summary dismissal is in order because it appears from the face of the petition that the application for writ of habeas corpus was not filed in compliance with the one year limitations period under the AEDPA. See United States ex. rel. Garza v. Ahitow, 8 F. Supp.2d 1069, 1071 (N.D. Ill. 1998).
III. ORDER
Accordingly, the Court DISMISSES WITH PREJUDICE the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1).