Opinion
Civil No. 02-71203-DT
November 7, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL
Nathan Dean, ("petitioner"), presently confined at the Ryan Correctional Facility in Detroit, 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 first-degree murder, M.C.L.A. 750.316; M.S.A. 28.548; and one count of felony-firearm, M.C.L.A. 750.227b; M.S.A. 28.424(2). Respondent has filed a motion to dismiss, 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 to dismiss. For the reasons stated below, petitioner's application for a writ of habeas corpus is summarily dismissed.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Detroit Recorder's Court and was sentenced on April 8, 1980 to life imprisonment on the first-degree murder conviction and two years imprisonment on the felony-firearm conviction. Petitioner's direct appeals ended in the Michigan courts on October 25, 1988, after the Michigan Supreme Court denied petitioner's motion for rehearing following the affirmance of his conviction by that court. People v. Dean, 431 Mich. 315; 429 N.W.2d 781 (1988). On June 25, 1999, petitioner filed a delayed motion for new trial, which was construed by the trial court as being a post-conviction motion for relief from judgement brought pursuant to M.C.R. 6.500, et. seq. After the motion was denied by the trial court, state court review of petitioner's post-conviction motion ended on July 30, 2001, when the Michigan Supreme Court denied petitioner leave to appeal the denial of his post-conviction motion. People v. Dean, 465 Mich. 856; 632 N.W.2d 141 (2001). The instant habeas petition was filed on March 13, 2002.
Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas petition on March 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, petitioner's direct appeal of his conviction ended when the Michigan Supreme Court denied petitioner's motion for rehearing on October 25, 1988 following the affirmance of his conviction by the Michigan Supreme Court. 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 January 23, 1989, 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. Because petitioner's conviction became final prior to the April 24, 1996 enactment date of the AEDPA, 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, 1074-1075 (E.D.Mich. 2001). Absent state collateral review, 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.
In the present case, petitioner filed a state post-conviction motion on June 25, 1999. 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 towards 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 post-conviction relief 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 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). 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). 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. Therefore, petitioner did not have one year following the denial of his post-conviction motion to file his petition with this Court.
Petitioner offers several arguments in support of his contention that the instant petition is not barred by the statute of limitations. Petitioner's main argument is that he was prevented from timely filing the instant petition because he was advised by his state appellate counsel at the conclusion of his state court appeals not to appeal his conviction to the federal courts. Petitioner claims that this erroneous advice by his appellate counsel constitutes a state-created impediment, pursuant to 28 U.S.C. § 2244(d)(1)(B), which would delay the commencement of the one year limitations period until March 13, 2002, the date which he filed the instant petition.
When a federal habeas petitioner relies on § 2244(d)(1)(B), which delays the running of the AEDPA's one year statute of limitations when an impediment resulting from unlawful state action has prevented a habeas petitioner from timely filing his or her habeas petition, a habeas petitioner must "allege facts that establish that he was so inhibited by the state's action that he was unable to file and state a cause of action before the limitation period expired." Neuendorf v. Graves, 110 F. Supp.2d 1144, 1153 (N.D.Iowa 2000) (internal quotation omitted). A habeas petitioner's filing of a petition for habeas relief before the alleged impediment was lifted suggests that the state action did not prevent the petitioner from timely filing his or her habeas petition. Id. (citing to Felder v. Johnson, 204 F.3d 168, 171, n. 9 (5th Cir. 2000)).
Petitioner is unable to rely on § 2244(d)(1)(B) to delay the commencement of the one year limitations period. Assuming, for purposes of § 2244(d)(1)(B), that petitioner's state appellate attorney was a "state actor", petitioner is unable to show that his appellate counsel's advice to him not to seek federal habeas relief prevented him from timely filing a habeas petition in this case. "[S]ection 2244(d)(1)(B) requires a causal relationship between the unconstitutional state action and being prevented from filing the petition. The express language of the section [§ 2244(d)(1)(B)] states that the date applies only `if the applicant was prevented from filing by such State action.'" Dunker v. Bissonnette, 154 F. Supp.2d 95, 105-106 (D.Mass. 2001) (holding that § 2244(d)(1)(B) did not apply so as to render the habeas petition timely since the state public defender's conduct with respect to the filing of legal papers, assuming it was an unconstitutional state impediment, did not prevent petitioner from filing a federal habeas petition in a timely manner).
In the present case, petitioner has merely alleged that his state appellate counsel advised him not to seek federal relief. Petitioner does not allege that his appellate counsel erroneously informed him that he had no federal remedies, nor does he allege that his appellate counsel or any other state actor actually prevented him from filing a habeas petition within the one year limitations period. Moreover, the fact that petitioner was able to file both his state post-conviction motion and his federal habeas petition while this alleged impediment still existed [i.e., while he was laboring under counsel's advice not to seek federal relief] shows that he was not prevented by his state appellate counsel's advice to forego filing a federal habeas petition from timely filing his habeas petition. See Lloyd v. Miller, 152 F. Supp.2d 1119, 1121-1122 (N.D.Ind. 2001) (state's failure to provide inmate with a complete record was not an unconstitutional impediment to his filing of a federal habeas petition or to the filing of state post-conviction relief, so as to toll the limitations period; the fact that the inmate eventually filed his petition without transcripts indicated that he could just have easily filed a timely petition and continued to seek the transcripts). The fact that petitioner eventually filed his habeas petition even though his state appellate counsel had advised him not to do so demonstrates that his counsel's advice was not an unconstitutional impediment to the filing of his habeas petition.
To the extent that petitioner is arguing that the one year limitations period should be equitably tolled because of his attorney's advice that he should not appeal his conviction to the federal courts, this too must be rejected. 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). In Dunlap, the Sixth Circuit 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.
The Sixth Circuit also 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 Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
In the present case, petitioner does not claim that he was unaware that he could file a petition for writ of habeas corpus with the federal courts, nor does he allege that he was unaware of the AEDPA's one year limitations period. Instead, petitioner alleges that he was prevented from filing a timely petition for writ of habeas corpus because his appellate counsel erroneously advised him that he should not seek federal habeas relief.
In any event, ignorance of the law alone is not sufficient to invoke the doctrine of equitable tolling. Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D.Mich. 1998). The Sixth Circuit has held that a federal defendant's ignorance about filing a § 2255 motion to vacate sentence did not toll the AEDPA's limitations period. See Reed v. United States, 13 Fed. Appx. 311, 313 (6th Cir. 2001).
An attorney's mistake is not usually a valid basis to equitably toll the AEDPA's one year limitations period. Wilson v. Battles, 302 F.3d 745, 748 (7th Cir. 2002); Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). Attorney error which results in the filing of an untimely habeas petition is not a circumstance which justifies tolling of the limitations period. See Cummings v. Yukins, 197 F. Supp.2d 785, 787 (E.D.Mich. 2002).
In United States v. Cook, 105 F. Supp.2d 1013, 1014-1015 (E.D.Wis. 2000), the federal district court held that the one year statute of limitations for filing a motion to vacate sentence pursuant to 28 U.S.C. § 2255 was not tolled by appellate counsel's alleged failure to advise the defendant about the availability of post-conviction remedies. Similarly, in Young v. Saffle, 24 Fed. Appx. 843, 844-845 ((10th Cir. 2001), the Tenth Circuit held that a federal habeas petitioner was not entitled to equitable tolling on the limitations period based upon his claim that he was unaware that he could appeal his conviction, in view of the lengthy gap between the prisoner's conviction and his pursuit of state post-conviction relief, which precluded any argument that he diligently pursued his claims.
In the present case, petitioner is even less entitled to equitable tolling of the limitations period. Petitioner does not allege that he was unaware that he could file a petition for federal habeas relief, only that his attorney advised him not to do so. Although petitioner does not indicate precisely when he was advised by his appellate counsel not to seek federal habeas relief, this Court has to assume that it was soon after the Michigan Supreme Court affirmed petitioner's conviction in 1988. Petitioner does not explain why it took him eleven years following the denial of his direct appeal by the Michigan Supreme Court to seek state post-conviction relief. Because an attorney's mistake or error cannot serve as a basis to equitably toll the limitations period, appellate counsel's alleged advice to petitioner that he forego any federal review of his conviction does not entitle him to equitable tolling of the limitations period.
Petitioner also claims that the one year limitations period should be tolled because a fundamental miscarriage of justice occurred in this case. Another 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). See Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D.Mich. 2001). In so ruling, the court in Holloway noted that "actual innocence" means factual innocence, not mere legal insufficiency. Id. (citing to Bousley v. United States, 523 U.S. 614, 623 (1998)). The court further observed that the Supreme Court had explained that "`the miscarriage of justice exception [to the procedural default rule] is concerned with actual as compared to legal innocence.'" Holloway v. Jones, at 1190-1191 (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). The court in Holloway 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 factually innocent of the crime charged. Id. at 1191.
In the present case, petitioner has presented no new or reliable evidence that he is factually innocent of the crimes charged here. Petitioner's main argument is that a fundamental miscarriage of justice occurred in this case when the Detroit police obtained a "reverse writ" from a judge and used the resultant prearraignment delay to obtain a confession from him. Any claim that petitioner's confession was inadmissible because it was obtained as the result of prearraignment delay does not invoke the miscarriage of justice exception, because it goes to petitioner's legal, as opposed to actual, innocence. See Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir. 1992) (petitioner's claim that his confessions were induced by false promises of leniency were claims of legal, as opposed to actual, innocence and would not excuse petitioner's procedural default under a "miscarriage of justice" exception.).
Based upon the foregoing, petitioner has failed to establish that he is actually innocent for purposes of excusing his compliance with the one year limitations period. Under Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, summary dismissal is appropriate 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. Smith v. Stegall, 141 F. Supp.2d 779, 784 (E.D.Mich. 2001).
III. ORDER
Accordingly, the Court DISMISSES WITH PREJUDICE the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1).