MEMORANDUM OPINION AND ORDER

GEORGE CARAM STEEH, Judge.

I. Background

This matter is before the Court on petitioner William A. Carrington's pro se habeas corpus petition under 28 U.S.C. § 2254. In 1991, Petitioner was charged in four separate state court cases as follows:

On February 23, 1993, Petitioner waived his right to a preliminary examination in 68th district court and expressed his intent to plead guilty rather than go to trial on the four cases. The plea bargain reached by the parties required Petitioner to plead guilty to delivery of less than 50 grams of cocaine in case number 91-1637. In return, the prosecutor promised to dismiss the other three cases. See Waiver of Preliminary Examination at 3-6.

The prosecutor subsequently realized that she had made a mistake. She intended to have Petitioner plead guilty to the most serious offense (delivery of 225 to 650 grams of cocaine) in exchange for having the three less serious cases dismissed. See Kur affidavit dated April 14, 1993 (attached to the prosecutor's brief in People v. Carrington, No. 103930 (Mich.Sup.Ct.)). Consequently, the prosecutor moved to set aside the plea bargain. The district court initially denied the prosecutor's motion, but at a hearing on June 1, 1993, the court reversed itself and permitted the prosecutor to withdraw the plea offer. The charges in the other three cases against Petitioner were reinstated.

The four cases subsequently were bound over to Genesee County Circuit Court for trial. On August 26, 1993, Petitioner pleaded guilty in case number 91-00870 to delivery of 225 to 650 grams of cocaine. See Mich. Comp. Laws Ann. § 333.7401(2)(a)(ii). The prosecutor in turn agreed to dismiss the other three cases and to recommend that the sentence not be enhanced. On October 7, 1993, the trial court sentenced Petitioner to imprisonment for a mandatory minimum term of twenty years and to a maximum term of thirty years.

Petitioner argued in his subsequent appeal of right that the trial court abused its discretion by granting the prosecutor's motion to set aside the original plea bargain. The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished per curiam opinion after concluding that the trial court did not abuse its discretion. See People v. Carrington, No. 169323 (Mich.Ct.App. Mar. 17, 1995).

Petitioner raised the same claim in the Michigan Supreme Court, which denied leave to appeal. See People v. Carrington, No. 103930 (Mich.Sup.Ct. Apr. 29, 1996). Petitioner did not seek a writ of certiorari in the United States Supreme Court.

On or about March 31, 1997, Petitioner filed a pro se motion for relief from judgment in the trial court. He alleged that he was denied effective assistance of counsel and that he was entitled to an evidentiary hearing on his claim. The trial court denied Petitioner's motion after concluding that Petitioner was raising the same issue that had been decided against him on direct appeal. The Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner's subsequent applications for leave to appeal. See People v. Carrington, No. 20403 1 (Mich.Ct.App. Jan. 14, 1998); People v. Carrington, No. 112170 (Mich.Sup.Ct. Dec. 30, 1998).

On December 6, 1999, Petitioner signed and dated the pending habeas corpus petition. His grounds for relief read:

1. Denial of effective assistance of counsel;

2. Denial of effective assistance of counsel — appellate attorney;

3. Trial Court erred by set[t]ing aside a binding valid plea agreement entered into by prosecutor's office; and

4. Where Petitioner diligently sought to develop the factual basis underlying his ineffective assistance of counsel claim, but the state courts has (sic) prevented him from doing so, an evidentiary hearing should be granted.

Respondent subsequently filed portions of the state court record and an answer to the habeas petition. Respondent argues that Petitioner is not entitled to an evidentiary hearing or habeas relief because he has failed to establish that the state court's rejection of his claims was an unreasonable application of Supreme Court law.

After reviewing the record, the Court ordered Petitioner to show cause why his petition should not be dismissed as time-barred under 28 U.S.C. § 2244 (d). Petitioner has filed a reply to the Court's order, and the case is now ready to be adjudicated.

II. Discussion A. The One-Year Period of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is applicable here because Petitioner filed his habeas petition after the AEDPA was enacted on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA established a one-year period of limitation for habeas petitions filed by persons in custody pursuant to the judgment of a state court. See 28 U.S.C. § 2244 (d). The limitation period 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.

Subsections (d)(1)(B)-(D) of the statute have no applicability here because Petitioner does not allege that the State created an impediment to filing the habeas petition and he does not rely on a new constitutional right or on newly discovered facts. Therefore, the date from which the limitation period began to run is the date on which the conviction became final. 28 U.S.C. § 2244 (d)(1)(A).

Petitioner's conviction became final on July 28, 1996, due to expiration of the time (ninety days) for seeking a writ of certiorari in the United States Supreme Court. Sup.Ct. R. 13.1; Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (citing Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000), cert. denied, ___ S.Ct. ___, 2001 WL 76698 (U.S. Feb. 26, 2001) (No. 00-8222)). The period of limitation ran about eight months and then stopped on approximately March 31, 1997, when Petitioner filed his motion for relief from judgment in the trial court. The period was tolled for the entire time that Petitioner's motion and subsequent appeals were pending in state court. See 28 U.S.C. § 2244 (d)(2) (stating that "[t]he time during which a properly filed application for State post-conviction or 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"); Swartz v. Meyers, 204 F.3d 417, 420 (3d Cir. 2000) (concluding that the period of limitation is tolled between one court's ruling and the timely filing of an appeal).

The period resumed running on December 31, 1998, the day after the Michigan Supreme Court denied leave to appeal the trial court's denial of Petitioner's post-conviction motion. Petitioner signed and dated his habeas petition more than eleven months later on December 6, 1999. The period of limitation ran for a total of approximately nineteen months, or more than the twelve months mandated by law. Therefore, the habeas petition is time-barred, absent tolling.

1. Statutory Tolling

Petitioner implies that he did not file his habeas petition sooner because he was exhausting state remedies for his claims. Petitioner was required to exhaust state remedies before filing his habeas petition. 28 U.S.C. § 2254 (b). However, the period of limitation did not begin to run until after Petitioner completed his direct appeal and, pursuant to 28 U.S.C. § 2244 (d)(2), the Court has not included in its calculations the time during which Petitioner pursued post-conviction remedies.

2. Equitable Tolling

The limitations provision found in section 2244(d) does not operate as a jurisdictional bar; it is subject to equitable tolling in exceptional circumstances. Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). To avail himself of the doctrine of equitable tolling, Petitioner would have to show that "(1) extraordinary circumstances (2) beyond his control (3) . . . made it impossible to file his petition on time." Henderson v. Johnson, 1 F. Supp.2d 650, 654 (N.D. Tex. 1998).

a. Ignorance of the Law

Petitioner alleges that he did not intentionally or knowingly ignore the statutory deadline. He claims to have thought mistakenly that the period of limitation started when the Michigan Supreme Court denied leave to appeal the denial of his post-conviction motion.

The clock was not reset at the conclusion of the state court's review of Petitioner's post-conviction motion. Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 104 (2000). Furthermore, Petitioner had about four months from the state supreme court's order of December 30, 1998, to file his habeas petition. Excusable neglect, pro se status, and ignorance of the law do not constitute extraordinary circumstances justifying equitable tolling. Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991) (ignorance of the law); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (pro se prisoner's ignorance of the law); Miller v. New Jersey State Dep't of Corrections, 145 F.3d at 619 (mere excusable neglect).

b. Waiver of the Defense

Petitioner alleges next that Respondent waived the statute-of-limitations defense by not raising it in his responsive pleading. The statute-of-limitations provision of the AEDPA is an affirmative defense, but the Court did not err in raising the issue sua sponte. See Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir. 1999) (holding "that the district court was within its authority under Rule 4 and Rule 11 of the Rules Governing Section 2254 Cases when it raised the AEDPA's statute of limitations defense sua sponte"). The Court gave Petitioner notice and an opportunity to be heard on the issue. Cf. Acosta v. Artuz, 221 F.3d 117, 119 (2nd Cir. 2000) (holding that, "while a district court has the authority to raise the apparent untimeliness of a habeas petition on its own motion, the [district] courts below erred in dismissing the petitions as untimely without providing petitioners prior notice and an opportunity to be heard").

c. Miscarriage of Justice

Petitioner's final argument in support of equitable tolling is that it would be a miscarriage of justice to dismiss his petition pursuant to § 2244(d). His miscarriage-of-justice argument reiterates claims found in the habeas petition. The following brief review of Petitioner's claims demonstrates that a miscarriage of justice will not occur if the Court dismisses the habeas petition pursuant to 28 U.S.C. § 2244 (d).

B. Counseled and Voluntary Guilty Plea

The Court begins by noting that

a plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.

Petitioner was represented by counsel at his plea. He personally informed the trial court that he understood the plea agreement and that no one had promised him anything (other than what was contained in the plea bargain) or coerced him into pleading guilt. He affirmed that he was pleading guilty of his own free will. He claimed to understand the charge, the minimum and maximum punishment, and the rights that he was waiving by pleading guilty. See Plea Tr. at 4-7. Because the plea appears to have been voluntary and intelligent, Petitioner's claims arguably are not cognizable here. Broce, 488 U.S. at 569.

C. Setting Aside the Original Plea Bargain

Petitioner nevertheless maintains that the original plea agreement was binding and, therefore, the trial court erred by setting it aside. "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). However, "[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest." Mabry v. Johnson, 467 U.S. 504, 507 (1984). A plea agreement may be binding on the prosecutor prior to acceptance by the court if the defendant substantially relied on the agreement or was prejudiced by providing information, which the government used in an ongoing investigation or at trial. United States v. Wells, 211 F.3d 988, 994 n. 3 (6th Cir. 2000); United States v. Kettering, 861 F.2d 675, 677 (11th Cir. 1988).

Although waiver of the preliminary examination may constitute detrimental reliance in some cases, the prosecutor's offer in this case was withdrawn before Petitioner admitted guilt and tendered his guilty plea in circuit court. Petitioner waived his preliminary examination on February 23, 1993, after the prosecutor agreed to the terms of the original plea bargain. Petitioner alleges that he subsequently appeared in circuit court where a different prosecutor appeared and asked to have the plea bargain set aside. The circuit court then remanded the case to the district court, which ultimately granted the prosecutor's motion to withdraw her plea offer,

Petitioner later was afforded a preliminary examination in 67th district court in case number 91-00870, and on June 21, 1993, he was arraigned in circuit court. He pleaded guilty two months later.

Petitioner contends that he was prejudiced by the prosecutor's conduct in that he relinquished his rights and forfeited his right to be presumed innocent. "[T]here is no constitutional right to plea bargain," Weatherford v. Bursey, 429 U.S. 545, 561 (1977), or to have a guilty plea accepted, Santobello, 404 U.S. at 262, and no constitutional right to a preliminary examination, Gerstein v. Pugh, 420 U.S. 103, 119, 123, 125 n. 26 (1975). In addition, statements made during plea negotiations are inadmissible at a subsequent trial. United States v. Mezzanatto, 513 U.S. 196, 200 (1995); People v. Manges, 134 Mich. App. 49, 59 (1984). Thus, Petitioner did not relinquish any constitutional rights when the prosecutor rescinded her offer. He was placed in the same position that he was in before he agreed to accept the prosecutor's initial offer.

The Court cannot conclude on the record before it that there was detrimental reliance on the original plea bargain. In the words of the Michigan Court of Appeals, "[tlhere is no indication in the record that the court approved the [original] agreement or that defendant detrimentally relied on it." Carrington, Mich. Ct. App. No. 169323.

D. Trial Counsel

Petitioner alleges next that his trial attorney was ineffective because the attorney incorrectly advised him about the sentence and informed him that he had no defense. To establish ineffective assistance of counsel, Petitioner would have to show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

To satisfy the deficient-performance prong, Petitioner must show that his attorney's representation fell below an objective standard of reasonableness and outside the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). The prejudice prong focuses on whether defense counsel's constitutionally ineffective performance affected the outcome of the plea process. Id. at 59. The petitioner must show that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. Id.

1. The Sentence

Petitioner had a prior federal conviction involving narcotics. He claims that his attorney incorrectly advised him that his sentence could be enhanced under the State's drug laws and under the State's habitual offender statute if he did not plead guilty. Petitioner alleges that his attorney also incorrectly advised him that he would receive consecutive sentences if he did not plead guilty. Petitioner claims that he would have gone to trial had it not been for defense counsel's erroneous advice about the potential sentence.

The trial court could not have enhanced Petitioner's sentence under the State's habitual offender statute and under the State's controlled substances act. People v. Elmore, 94 Mich. App. 304, 305-06 (1979). However, Petitioner could have received an enhanced sentence based on the prior conviction and consecutive sentences if he had gone to trial and been convicted of more than one charge against him. See Mich. Comp. Laws Ann. § 333.7401(3) (authorizing consecutive prison terms); Mich. Comp. Laws Ann. § 333.7413(2) (authorizing prison terms twice the length otherwise permitted when an individual is convicted of a second or subsequent drug offense); People v. Davenport, 205 Mich. App. 399 (1994) (affirming a sentence that was doubled and made to run consecutively pursuant to §§ 333.7401(3) and 333.7413(2)).

Moreover, it was explained to Petitioner at the circuit court arraignment on June 21, 1993, that his sentence could be enhanced (doubled) under the controlled substances statute, Mich. Comp. Laws Ann. § 333.7413. The court specifically explained to Petitioner that the penalty for delivery of 225 to 650 grams of cocaine (twenty to thirty years in prison) could be enhanced up to sixty years because of Petitioner's prior federal conviction for distributing cocaine. See Arraignment Tr. at 3-5.

At the subsequent plea proceeding, defense counsel explained on the record that part of the plea bargain consisted of the prosecutor's promise not to seek enhancement under Mich. Comp. Laws Ann. § 333.7413. The trial court then began its colloquy with Petitioner. The court encouraged Petitioner to speak up if he was confused and did not understand something said by the court. The court advised Petitioner that the mandatory minimum for the offense to which he was pleading guilty was twenty years, that the maximum penalty for his offense was thirty years, and that he would not be eligible for disciplinary credits on the minimum sentence.

Petitioner stated that there was nothing his attorney had said or done that he did not understand. He also claimed to understand the plea agreement and the potential sentence. See Plea Tr. at 2-5.

Petitioner was correctly informed about the enhancement provision and about the maximum possible sentence he faced if he pleaded guilty. He has not shown that his attorney gave him incorrect advice or that the allegedly incorrect advice prejudiced him. The Court concludes that defense counsel was not ineffective.

2. The Defense

Petitioner contends that his attorney coerced him into pleading guilty and advised him to plead guilty because he did not have a viable defense. These allegations are dubious because Petitioner asserted at the plea that he had no complaints about his attorney, that there was no difficulty between them, and that no one had forced him to plead guilty. See id. at 3-4.

Furthermore, Petitioner has not suggested a defense that his attorney could have raised, and the evidence against him was overwhelming. An undercover police officer testified at the preliminary examination that Petitioner sold him a bag of cocaine for $10,500.00. The exchange involved 278.6 grams of a substance containing cocaine. See Tr. of Preliminary Examination at 4-12. Given the evidence against Petitioner, his failure to articulate a viable defense, and the likelihood that he would have been exposed to a greater sentence had he gone to trial, defense counsel was not ineffective for advising Petitioner to plead guilty.

E. Appellate Counsel

Petitioner alleges that his appellate attorney was ineffective because the attorney failed to raise every meritorious issue on appeal. Although Petitioner alleges that his appellate attorney should have moved to set aside the second plea agreement, appellate counsel did argue that Petitioner was entitled to withdraw his guilty plea and to have the original plea bargain enforced.

Petitioner alleges next that his attorney should have raised a claim of ineffective assistance of trial counsel and other claims suggested by Petitioner to appellate counsel. Petitioner's allegations about trial counsel have no merit. See infra, Section II.D. Moreover, appellate counsel reasonably concluded that Petitioner waived other claims when he pleaded guilty. See Exhibit 4 of Petitioner's Response to Respondent's Answer. Petitioner had no constitutional right to compel his attorney to make every nonfrivolous argument on appeal. Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Tactical choices about which claims to raise on appeal "are properly left to the sound professional judgment of counsel. . . ." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).

Petitioner's final allegation about appellate attorney is that she should have attached the written waiver of the preliminary examination to the appellate brief. The waiver does not establish that Petitioner pleaded guilty on February 23, 1993. Therefore, the omission did not constitute deficient performance, and Petitioner has failed to show that his appellate attorney was ineffective.

F. Evidentiary Hearing

Petitioner seeks an evidentiary hearing on his claims of ineffective assistance of counsel. He asserts that he is entitled to receive an evidentiary hearing so long as his allegations, if true and not contravened by the existing record, would entitle him to habeas relief.

Petitioner has no absolute right to an evidentiary hearing. See Blackledge v. Allison, 431 U.S. 63, 80 (1977) (concluding that not "every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing"). The decision whether to order an evidentiary hearing to settle disputed issues of material fact is discretionary with the district court. Abdur Rahman v. Bell, 226 F.3d 696, 704-07 (6th Cir. 2000); see 28 U.S.C. § 2254, Rule 8(a) (noting that a federal habeas court shall determine whether an evidentiary hearing is required and that the court shall dispose of a habeas petition as justice requires when a hearing is not required).

The Court has concluded that a miscarriage of justice will not occur from a dismissal under 28 U.S.C. § 2244 (d) and that an evidentiary hearing is not required to resolve Petitioner's claims. The Court therefore exercises its discretion and denies Petitioner's request for an evidentiary hearing.

III. Conclusion

The period of limitation ran for more than one year in this case. Petitioner has not demonstrated that extraordinary circumstances beyond his control made it impossible to file his petition on time or that a miscarriage of justice will occur from a dismissal under 28 U.S.C. § 2244 (d). Accordingly, the application for a writ of habeas corpus is DISMISSED.