Opinion
Civil No. 02-73093-DT
March 17, 2003
OPINION AND ORDER OF SUMMARY DISMISSAL
Wantwaz D. Davis, ("Petitioner"), presently confined at the Macomb Correctional Facility in New Haven, 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. 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 sent a letter to this Court which is construed as a response to the motion to dismiss. For the reasons stated below, Petitioner's application for a writ of habeas corpus is summarily dismissed.
I. Background
Petitioner was originally charged with one count of open murder. Pursuant to a plea agreement, Petitioner pleaded guilty to a reduced charge of second-degree murder. Petitioner was sentenced to twenty two to fifty years in prison on October 28, 2001.
Under Michigan law, it is proper to charge a defendant with the crime of open murder. Such a charge gives a circuit court jurisdiction to try a defendant on first and second degree murder charges. Hastings v. Yukins, 194 F. Supp.2d 659, 662, n. 2 (E.D. Mich. 2002).
Direct review of Petitioner's conviction ended on May 27, 1994, when the Michigan Supreme Court denied Petitioner leave to appeal the affirmance of his conviction by the Michigan Court of Appeals. People v. Davis, 445 Mich. 916; 519 N.W.2d 894 (1994).
On January 31, 1995, Petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq. After the trial court denied Petitioner's motion on April 5, 1995, the Michigan Court of Appeals denied Petitioner leave to appeal on December 8, 1995. People v. Davis, 187500 (Mich.Ct.App. December 8, 1995). Petitioner did not seek leave to appeal with the Michigan Supreme Court.
See Affidavit of Corbin R. Davis, Clerk of the Michigan Supreme Court, dated October 28, 2002.
Petitioner filed a second motion for relief from judgment with the trial court on July 20, 2000. Collateral review of Petitioner's second post-conviction motion ended on November 30, 2001, when the Michigan Supreme Court denied Petitioner leave to appeal the denial of his second post-conviction motion. People v. Davis, 465 Mich. 918; 636 N.W.2d 526 (2001). The instant petition was filed on June 13, 2002.
Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas petition on June 13, 2002, the date that it was signed and dated, despite the existence of some evidence that it may have been filed later with this Court. See Neal v. Bock, 137 F. Supp.2d 879, 882, fn. 1 (E.D. Mich. 2001).
II. Discussion
The 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 year statute of limitations applies 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) indicates that 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. Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D. Mich. 1998).
In the present case, direct review of Petitioner's conviction ended when the Michigan Supreme Court denied him leave to appeal on May 27, 1994. 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 August 25, 1994, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas v. Straub, 10 F. Supp.2d at 835.
Petitioner filed his first post-conviction motion for relief from judgment on January 31, 1995, which the trial court denied on April 5, 1995. The Michigan Court of Appeals denied Petitioner leave to appeal on December 8, 1995. Petitioner did not seek appellate review of that decision with the Michigan Supreme Court. 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. Corbin v. Straub, 156 F. Supp.2d 833, 836 (E.D. Mich. 2001). For purposes of § 2244(d)(2), the term "pending" includes the time for seeking discretionary review of a post-conviction motion, whether or not the discretionary review is sought. Swartz v. Meyers, 204 F.3d 417, 421 (3rd Cir. 2000). Under M.C.R. 7.302(C)(3), Petitioner would have had fifty six days following denial of his appeal by the Michigan Court of Appeals to seek leave to appeal with the Michigan Supreme Court. Therefore, the statute of limitations would not have begun to run until February 2, 1996, when the time for seeking leave to appeal with the Michigan Supreme Court expired. However, because this date occurred prior to the AEDPA's enactment date of April 24, 1996, Petitioner was required to file his petition within one year following the AEDPA's enactment, unless the statute of limitations was further tolled. Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998). Petitioner therefore had until April 24, 1997 to timely file his petition with the federal court, unless the limitations period was otherwise tolled.
Petitioner filed a second state post-conviction motion on July 20, 2000, after 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). 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. Id. at 750. Moreover, Petitioner did not have one year following the denial of his post-conviction motion 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 or her state post-conviction remedies. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).
In his letter to the Court, which is construed as a response to the motion to dismiss, Petitioner appears to offer several arguments why his instant petition should be considered timely. Petitioner first indicates that although he always felt, based on the allegedly harsh sentence that he received, that he had a potential issue, it was not until 1999, while he was reviewing his sentencing transcript, that he discovered that the judge erred in relying upon a juvenile history which Petitioner claims he did not have in imposing sentence.
Under 28 U.S.C. § 2244 (d)(1)(D), 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. However, 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). Additionally, under § 2244(d)(1)(D), the time under the AEDPA's limitations period 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. Id.; See also Hereford v. McCaughtry, 101 F. Supp.2d 742, 744-45 (E.D. Wis. 2000) (rejecting idea that limitations period did not commence under § 2244(d)(1)(D) until after the petitioner had reviewed his transcripts and discovered the claim). A habeas petitioner has the burden of proof in persuading a federal court that he or she exercised due diligence in searching for the factual predicate of the habeas claims. Stokes v. Leonard, 36 Fed. Appx. 801, 804 (6th Cir. 2002).
In the present case, Petitioner does not offer any explanation how the factual predicate of his sentencing claim could not have been discovered earlier, nor does he indicate what steps, if any, he took to discover this claim. Significantly, Petitioner does not indicate when in 1999 he discovered the factual predicate of his claim. This Court is therefore unable to determine when the one year limitations period would commence pursuant to § 2244(d)(1)(D). Grayson v. Grayson, 185 F. Supp.2d at 750. Significantly, Petitioner does not indicate that he did not have a copy of his sentencing transcript until 1999. In any event, the commencement of the statute of limitations would not be delayed until Petitioner actually reviewed the sentencing transcript, because Petitioner was present at the sentencing and should have been aware that the trial court used Petitioner's nonexistent juvenile history against him in imposing sentence. Cf. Lloyd v. Van Natta, 296 F.3d 630, 633-634 (7th Cir. 2002) (unavailability of complete trial transcript did not warrant equitable tolling of the limitations period for filing a habeas petition which alleged prosecutorial misconduct in the closing argument, where the petitioner was at the trial and knew the basis on which he could have asserted prosecutorial misconduct).
Petitioner also appears to be arguing that the limitations period should be equitably tolled. The one year limitations period under the AEDPA is 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). The Sixth Circuit noted that the doctrine of equitable tolling should be used "sparingly." Dunlap, 250 F.3d at 1008-1009. The Sixth Circuit concluded that "[a]bsent a satisfactory explanation for his failure to timely file his habeas petition", a petitioner would fail to exercise due diligence in pursuing his claim, and thus would not be entitled to equitable tolling of the limitations period. Id. at 1010. The burden is on a habeas petitioner to show that he or she is entitled to the equitable tolling of the one year limitations period. See Grayson v. Grayson, 185 F. Supp.2d at 751.
Petitioner first argues that he was ignorant of the law. Ignorance of the law alone is insufficient to invoke the doctrine of equitable tolling. Brown v. McKee, 232 F. Supp.2d 761, 767 (E.D. Mich. 2002); Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D. Mich. 1998). Petitioner is therefore not entitled to equitable tolling of the limitations period on this basis.
Petitioner also argues in his petition that he is innocent of the sentence that was imposed in this case, because the trial court relied on a non-existent juvenile history in fashioning the sentence. Petitioner does not, however, argue that he is innocent of the murder charge itself.
The Sixth Circuit has stated that "[n]o actual innocence exception to § 2244(d)(1) exists in the language of the statute itself, and this Circuit has yet to endorse an actual innocence exception." Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). The Fifth Circuit has explicitly rejected an actual innocence exception to the AEDPA's limitations period, noting that § 2244(d) "contains no explicit exemption for petitioners claiming actual innocence of the crimes of which they have been convicted." Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). However, a judge in this district has held that an actual innocence exception exists that would toll the one year limitations period contained in § 2244(d)(1). Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D. Mich. 2001) (Tarnow, J.). However, the judge in that case concluded that the petitioner had failed to establish his actual innocence to the crime charged, when the petitioner presented no new, reliable evidence to establish that he was actually innocent of the crimes charged. Id. at 1191.
There are several problems with utilizing an "actual innocence" exception to toll the limitations period in this case. First, there has been no showing on Petitioner's part that he acted with due diligence in pursuing his claims in the state or federal court. This alone defeats Petitioner's argument that the limitations period should be tolled by his actual innocence. Brown v. McKee, 232 F. Supp.2d at 768-769 (collecting cases).
Secondly, as respondent points out, Petitioner does not argue that he is innocent of the second-degree murder charge, but only of the sentence that was imposed in this case. In the procedural default context, the Sixth Circuit has held that an actual innocence exception is not available in the case of a challenge to a noncapital sentence. Flahardy v. United States, 67 F.3d 299; 1995 WL 570925, *2 (6th Cir. September 27, 1995); Black v. United States, 61 F.3d 903, 1995 WL 445718, *2 (6th Cir. July 26, 1995). The Eighth and the Tenth Circuits have also held that there is no actual innocence exception for noncapital sentencing errors. See Embrey v. Hershberger, 131 F.3d 739, 740-741 (8th Cir. 1997) (in noncapital cases, the concept of "actual innocence," which permits court to reach the merits of a claim in a petition for post-conviction relief even though petition is successive, means that the person did not commit the crime); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) ("a person cannot be actually innocent of a noncapital sentence"). At least one federal district court has also concluded that the actual innocence exception does not apply to noncapital sentencing proceedings. See United States ex rel. Henderson v. Thieret, 671 F. Supp. 1193, 1201 (N.D.Ill. 1987). The Fourth and Fifth Circuits have held that the actual innocence exception applies to noncapital cases only in the context of an habitual offender provision for sentence enhancement purposes. United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999); Haley v. Cockrell, 306 F.3d 257, 265 (5th Cir. 2002).
This Court also notes, by analogy, that several cases have held that the actual innocence exception which would permit a federal prisoner to file a § 2241 habeas petition to challenge a federal conviction, rather than to seek relief via a § 2255 motion to vacate, requires actual innocence of the underlying substantive offense, not innocence of a sentencing factor. Rumler v. Hemingway, 171 F. Supp.2d 705, 709 (E.D. Mich. 2001); See also Coles v. United States, 177 F. Supp.2d 710, 712 (N.D. Ohio 2001). In United States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001), the Sixth Circuit held that challenges to the legality of a sentence brought by three federal prisoners did not fall within the savings clause which permitted a federal prisoner to file a § 2241 habeas petition, because the challenges to the sentence did not involve a claim of actual innocence and the sentences did not exceed the statutory maximum.
This Court concludes that Petitioner is not entitled to the tolling of the limitations period based upon an "actual innocence" exception, because Petitioner does not allege that he is innocent of the crime charged, but only argues that he was "innocent" of the noncapital sentence imposed in this case. Because Petitioner did not allege that he was actually innocent of the underlying second-degree murder charge, he is not entitled to have the limitations period tolled based on an "actual innocence" exception.
III. Conclusion
The Court determines that the current habeas petition is barred by the AEDPA's one year statute of limitations contained in § 2244(d)(1). The Court will summarily dismiss the current petition. The Court will also deny Petitioner a certificate of appealability. 28 U.S.C. § 2253 (c)(1)(A) and F.R.A.P. 22(b) state that an appeal from the district court's denial of a writ of habeas corpus may not be taken unless a certificate of appealability (COA) is issued either by a circuit court or district court judge. If an appeal is taken by an applicant for a writ of habeas corpus, the district court judge shall either issue a certificate of appealability or state the reasons why a certificate of appealability shall not issue. F.R.A.P. 22(b). To obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253 (c)(2).
When a district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claims, a certificate of appealability should issue, and an appeal of the district court's order may be taken, if the petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. The Sixth Circuit has indicated that a federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
The Court will deny Petitioner a certificate of appealability, because reasonable jurists would not find it debatable whether this Court was correct in determining that petitioner had filed his habeas petition outside of the one year limitations period. Grayson v. Grayson, 185 F. Supp.2d at 753. The Court will also deny Petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Id.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma pauperis.