Civil No. 01-CV-73958-DT
June 26, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL
Detonio Andre Jones, ("petitioner"), presently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction and sentence on one count of possession with intent to deliver between fifty and 225 grams of cocaine, M.C.L.A. 333.7401(2)(a)(iii); M.S.A. 14.15(7401)(2)(a)(iii); one count of conspiracy to commit the crime of possession with intent to deliver between fifty and 225 grams of cocaine, M.C.L.A. 750.157a; M.S.A. 28.354(1)(a); M.C.L.A. 333.7401(2)(a)(iii); M.S.A. 14.15(7401)(2)(a)(iii); 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 disposition, contending that petitioner has failed to comply with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). Petitioner has filed a reply to the motion for summary disposition. For the reasons stated below, petitioner's application for a writ of habeas corpus is SUMMARILY DISMISSED.
Petitioner was convicted of the above offenses in the Saginaw County Circuit Court on October 8, 1992. Petitioner's conviction was affirmed by the Michigan Court of Appeals and the Michigan Supreme Court on direct appeal. People v. Jones, 158672 (Mich.Ct.App. Dec. 28, 1995); Iv. den. 454 Mich. 851; 558 N.W.2d 724 (1997); recons. den. 454 Mich. 851; 562 N.W.2d 203 (1997).
On March 5, 1998, petitioner filed an application for writ of habeas corpus with the U.S. District Court for the Western District of Michigan. On October 6, 1998, the petition was dismissed without prejudice for failure to exhaust state court remedies for some of the claims presented. Jones v. Pitcher; U.S.D.C. 1:98-CV-211 (W.D. Mich. October 6, 1998).
On May 24, 1999, petitioner filed a post-conviction motion for relief from judgment with the Saginaw County Circuit Court pursuant to M.C.R. 6.500, et.seq., which was denied by the trial court. The Michigan Court of Appeals subsequently denied petitioner leave to appeal. People v. Jones, 223671 (Mich.Ct.App. July 11, 2000). On September 15, 2000, the Michigan Supreme Court rejected petitioner's application for leave to appeal, because it was not filed within the fifty six day time limit contained in M.C.R. 7.302(C)(3). See Letter from Corbin R. Davis, Clerk of the Michigan Supreme Court, dated September 15, 2000.
Under the prison mailbox rule, a federal habeas petition is filed when the prisoner gives his petition to prison officials for mailing to the federal courts. United States ex. rel. Drain v. Washington, 52 F. Supp.2d 856, 860 (N.D. III. 1999). Absent evidence to the contrary, a federal court will assume that a prisoner gave his habeas petition to prison officials on the date he signed it, for the purposes of the AEDPA's one year limitations period. Torres v. Irvin, 33 F. Supp.2d 257, 270 (S.D.N.Y. 1998); See also Colarte v. Leblanc, 40 F. Supp.2d 816, 817 (E.D. La. 1999). Because petitioner's original pleadings were signed and dated September 9, 2001, this Court assumes that this was the date that petitioner actually filed his petition for writ of habeas corpus. Hudson v. Martin, 68 F. Supp.2d 798, 799, fn. 2 (E.D. Mich. 1999).
II. DISCUSSIONSummary 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." Sanders, 221 F.3d at 851. The summary judgment standard applies to habeas proceedings. Harris v. Stegall, 157 F. Supp.2d 743, 746 (E.D. Mich. 2001).
Summary judgment for the respondent is appropriate in this case, because the petition for writ of habeas corpus 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. 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.28 U.S.C.§ 2244(d)(1).
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. Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D. Mich. 1998).
In the present case, petitioner's direct appeal of his conviction ended when the Michigan Supreme Court denied petitioner's motion for reconsideration on March 28, 1997. Petitioner's conviction would become final, for the purposes of the AEDPA's limitations period, on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Petitioner's judgment therefore became final on June 26, 1997, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas, 10 F. Supp.2d at 835. Petitioner therefore had until June 26, 1998 to file his petition for writ of habeas corpus in compliance with the AEDPA's statute of limitations, unless the limitations period was somehow tolled.
In the present case, petitioner filed a state post-conviction motion for relief from judgment on May 24, 1999. Title 28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted toward the period of limitations contained in the statute. Matthews v. Abramajtys, 39 F. Supp.2d 871, 874 (E.D. Mich. 1999). However, although the time during which a properly filed application for collateral review is pending in the state courts is excluded from the one year limitations period, 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). Thus, petitioner's motion for relief from judgment did not cause the one year limitations period to begin to run anew after the post-conviction motion was denied. See Searcy v. Carter; 246 F.3d 515, 519 (6th Cir. 2001). Petitioner did not have one year following the denial of his post-conviction motion for relief from judgment to file his petition with this Court, because the one year limitations period under the AEDPA begins to run at the conclusion of the direct review of a habeas petitioner's conviction, and not on the date which a habeas petitioner has exhausted all of his state post-conviction remedies. See Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001). By the time that petitioner filed his state post-conviction motion, the one year limitations period had already expired. "A state court post-conviction motion that is filed following the expiration of the limitations period for seeking federal habeas relief cannot toll that period because there is no period remaining to be tolled." Grayson v. Grayson, 185 F. Supp.2d 747, 750 (E.D. Mich. 2002); Smith v. Stegall, 141 F. Supp.2d 779, 782-783 (E.D. Mich. 2001). If the one year limitations period has already expired, filing a motion for state post-conviction relief will not add new time to the limitations period. Grayson, 185 F. Supp.2d at 750. Therefore, petitioner did not have one year following the denial of his motion for relief from judgment to file his petition with this Court.
In his reply to the motion for summary disposition, petitioner claims that his application for writ of habeas corpus is timely for several reasons. First, petitioner argues that the respondent failed to consider his previously filed petition for writ of habeas corpus in calculating the limitations period in this case. The U.S. Supreme Court has held that an application for federal habeas review is not "an application for state post-conviction or other review" within the meaning of 28 U.S.C. § 2244(d)(2) that would toll the one year statute of limitations for habeas cases found in 28 U.S.C. § 2244(d)(1). Duncan v. Walker, 533 U.S. 167, 181-82 (2001). In his concurring opinion, however, Justice Stevens, joined by Justice Souter, concluded that neither the U.S. Supreme Court's "narrow holding" in Duncan nor anything in the text or the legislative history of the AEDPA would prevent a federal court from tolling the limitations period for a habeas petition as "a matter of equity." Id. at 183.
"[T]he § 2244(d) statute of limitations defense is an affirmative defense as opposed to a jurisdictional defect." Scott v. Collins, 286 F.3d 923, 927 (6th Cir. 2002). The one year limitations period under the AEDPA is therefore considered a statute of limitations which is subject to equitable tolling, and is not a jurisdictional prerequisite which would bar review by the federal courts if not met. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001). In Dunlap, the Sixth Circuit adopted the test for equitable tolling set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) and indicated that five factors should be used to determine whether it would be appropriate to equitably toll the statute of limitations in a habeas case:
(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.
A judge in this district recently held that a habeas petitioner was entitled to the equitable tolling of the one year statute of limitations for the time that his first habeas petition was pending in federal court. Corbin v. Straub, 156 F. Supp.2d 833, 837 (E.D. Mich. 2001). This Court believes that petitioner is entitled to the equitable tolling of the statute of limitations during the period in which his first habeas petition was pending in the U.S. District Court for the Western District of Michigan, particularly where the prior habeas petition was dismissed without any indication that petitioner could move to reopen or reinstate his petition under the same case number. See Rupert v. Johnson, 83 F. Supp.2d 801, 804-805 (W.D Tex. 1998).
The equitable tolling of the one year limitations period for the time that the first habeas petition was pending in the Western District of Michigan does not render the current petition timely. By the time that petitioner filed his first federal habeas petition on March 5, 1998, some 252 days had already run on the one year limitations period. After this petition was dismissed on October 6, 1998, another 230 days elapsed before petitioner filed his post-conviction motion for relief from judgment with the Saginaw County Circuit Court. Therefore, even excluding the period that petitioner's first application for writ of habeas corpus was pending in the Western District of Michigan, some 482 days had already elapsed before petitioner filed his state post-conviction motion for relief from judgment in the state courts.
Moreover, even if this Court could exclude from the calculation of the limitations period the time between the dismissal of the first petition for writ of habeas corpus and the filing of the state post-conviction motion for relief from judgment, the instant petition would still be untimely. By the time that the first petition was filed, 252 days had already expired on the one year limitations period. The Michigan Supreme Court rejected petitioner's application for leave to appeal on September 15, 2000. Even if the one year limitations period is tolled to include the gaps between the time that petitioner's first habeas petition was dismissed and when the state post-conviction proceedings were initiated, petitioner had only 113 days remaining under the limitations period to timely file his application for writ of habeas corpus with this Court, which would have been no later than January 6, 2001. The instant petition was not filed until September 9, 2001. Therefore, even if this Court were to toll the limitations period for the entire time that petitioner was seeking federal or state post-conviction relief, the instant petition would still be untimely.
Petitioner further argues that he is entitled to equitable tolling of the limitations period, because he had the erroneous belief that he had one year following the conclusion of his state post-conviction proceedings to timely file his petition with this Court. Petitioner also claims that his lack of education and knowledge of the law hampered his ability to learn about, or properly understand, the AEDPA's requirements.
Petitioner's contention that he was ignorant of the law does not entitle him to equitable tolling. A habeas petitioner is not entitled to equitable tolling of the statute of limitations due to a lack of academic and legal education. Turner v. Smith, 70 F. Supp.2d 785, 787 (E.D. Mich. 1999). Ignorance of the law alone is also insufficient to invoke the doctrine of equitable tolling. Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D. Mich. 1998). Therefore, the fact that petitioner lacked the legal sophistication to pursue his claims is not an extraordinary circumstance that would equitably toll the statute of limitations. Hood v. Galaza, 47 F. Supp.2d 1144, 1148 (S.D. Cal. 1999).
The Court also rejects petitioner's claim that he should be entitled to the equitable tolling of the one year limitations period because he mistakenly believed that the one year limitations period would begin to run anew following the denial of his application for post-conviction relief in the state courts. A habeas petitioner's ignorance as to the proper calculation of the limitations period for filing a federal habeas petition does not warrant equitable tolling. See Pearson v. North Carolina, 130 F. Supp.2d 742, 744 (W.D.N.C. 2001).
Finally, petitioner is not entitled to tolling of the limitations period pursuant to an "actual innocence" exception. This Court recently held that an actual innocence exception exists that would toll the one year limitations period contained in § 2244(d)(1). See Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D. Mich. 2001). The U.S. Supreme Court has indicated that "actual innocence" means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). The Supreme Court has also explained that "the miscarriage of justice exception [to the procedural default rule] is concerned with actual as compared to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). In order for a claim of actual innocence to be credible, "a claim of actual innocence must be based on reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Finally, actual innocence "does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Schlup, 513 U.S. at 329.
In the present case, petitioner has failed to offer new, reliable evidence that would establish that he is actually innocent of these crimes. Although petitioner challenges the sufficiency of the evidence to convict him on these charges, petitioner's sufficiency of evidence claim cannot be considered by this Court in determining whether an actual innocence exception exists in petitioner's case for purposes of tolling the statute of limitations period. Holloway, 166 F. Supp.2d at 1191; Grayson, 185 F. Supp.2d at 752; Alexander v. Keane, 991 F. Supp. 329, 340 (SD.N.Y. 1998). Accordingly, petitioner is not entitled to the tolling of the limitations period under an actual innocence exception.
Accordingly, the Court DISMISSES WITH PREJUDICE the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1).