Opinion
CIVIL CASE NO. 01-CV-72516-DT.
August 21, 2001
Petitioner James DeShazer El, a state prisoner currently confined at the Kinross Correctional Facility in Kincheloe, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. The habeas petition states that Petitioner pleaded guilty to second-degree murder in the Recorder's Court for the City of Detroit in 1984. He was sentenced to 30-50 years imprisonment. For the reasons set forth below, the Court dismisses the petition for a writ of habeas corpus for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d).
I. Facts and Proceduarl History
Following his conviction, Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed his conviction and sentence. People v. DeShazer, No. 76494 (Mich.Ct.App. May 28, 1985). Petitioner also filed a letter request seeking review before the Michigan Supreme Court, which was denied. People v. DeShazer, No. 76926 (Mich. Dec. 4, 1985).
On June 29, 1989, Petitioner filed a petition for writ of habeas corpus in federal court, which was dismissed without prejudice for failure to exhaust state court remedies, Case No. 89-CV-70212-DT (E.D. Mich. Oct. 30, 1989).
In January, 1999, Petitioner filed a motion to withdraw his guilty plea with the trial court, which was denied on August 26, 1999. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. DeShazer, No. 222971 (Mich.Ct.App. Aug. 21, 2000). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. DeShazer, No. 117757 (Mich. Feb. 26, 2001).
Petitioner submitted the present petition for writ of habeas corpus, dated May 31, 2001, to this Court on June 29, 2001, and it was filed on July 6, 2001. This Court ordered Petitioner to show cause why this matter should not be dismissed for failure to comply with the applicable statute of limitations established by 28 U.S.C. § 2244(d). Petitioner filed a reply to the show cause order on August 9, 2001, asserting that his present petition should be deemed a continuation of his 1989 federal habeas petition and not barred by the statute of limitations. Petitioner also asserts that his petition should be allowed to proceed because his claims are meritorious and concern violations of constitutional principles.
II. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996. The AEDPA governs the filing date for the habeas petition in this case because Petitioner filed his petition after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Among other things, the AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Matthews v. Abramajtys, 39 F. Supp.2d 871, 872 (E.D. Mich. 1999). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of his habeas claims. See 28 U.S.C. § 2244(d)(1)(A). The revised statute provides that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period 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.
(2) The 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.28 U.S.C. § 2244(d).
Petitioner's convictions became final before the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final prior to the AEDPA's effective date are given a one-year grace period in which to file their federal habeas petitions. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Accordingly, Petitioner was required to file his federal habeas petition on or before April 24, 1997, excluding any time during which a properly filed application for state post-conviction or collateral review was pending in accordance with 28 U.S.C. § 2244(d)(2).
Petitioner did not file his motion to withdraw his guilty plea with the state trial court until January, 1999. Thus, the one-year limitations period had expired before Petitioner sought state post-conviction review. A state court post-conviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Thus, Petitioner's state post-conviction proceedings did not toll the running of the statute of limitations. The AEDPA's limitations period is only tolled while a prisoner has a properly filed post-conviction motion under consideration. 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir. 2000); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); see also Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999). Petitioner does not assert that the State created an impediment to filing his habeas petition or that his claims are based upon newly-created rights or newly-discovered facts.
Instead, Petitioner claims that his present petition should be deemed a "continuation" of his first habeas petition, which was dismissed without prejudice for failure to exhaust state court remedies. Contrary to Petitioner's argument, however, his current petition does not relate back to the filing of his first habeas petition. Under Federal Rule of Civil Procedure 15, "[a]n amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c). However, the "relation back" doctrine is inapplicable when the initial habeas petition was dismissed, because there is no pleading to which to relate back. See Warren v. Garvin, 219 F.3d 111, 113-14 (2nd Cir. 2000); Jones v. Morton, 195 F.3d 153, 160-61 (3rd Cir. 1999); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999). When a petition is dismissed without prejudice for failure to exhaust state court remedies, as was the case here, a subsequent petition filed after exhaustion is completed is not considered an amendment to the prior petition but is deemed a new action. See Jones, 195 F.3d at 160-61. Because Petitioner's 1989 petition was dismissed and the case closed and because the Court did not expressly or impliedly retain jurisdiction over the petition, his current habeas petition does not "relate back" to that petition. See Henry, 164 F.3d at 1241. Petitioner has not shown that his petition should be deemed timely.
Petitioner also asserts that his case should be allowed to proceed because his habeas claims have merit and he is actually innocent of his crimes. Even assuming that the actual innocence of a petitioner permits the filing of an untimely habeas petition, Petitioner has failed to make a such a showing. To support a claim of actual innocence, a petitioner in a collateral proceeding "must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623 (1998). A valid claim of actual innocence requires a petitioner "to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Furthermore, actual innocence means "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. Petitioner has made no such showing in this case. His contention that his habeas claims have merit does not state a claim of actual innocence. Moreover, Petitioner has presented no new reliable evidence in support of such a claim. His habeas petition is thus barred by the statute of limitations set forth in 28 U.S.C. § 2244(d).
The United States Court of Appeals for the Sixth Circuit has determined that the one-year limitations period is not a jurisdictional bar and is subject to equitable tolling. In Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test are:
(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.
In his pleadings, Petitioner has not alleged any circumstances which caused him to file his state post-conviction motion or the instant petition after the expiration of the statute of limitations. The fact that Petitioner is proceeding without a lawyer or may have been unaware of the limitations period does not warrant tolling. See, e.g., Sperling v. White, 30 F. Supp.2d 1246, 1254 (C.D. Cal. 1998) (citing cases establishing that ignorance of the law, illiteracy, and lack of legal assistance do not constitute extraordinary circumstances). Further, Petitioner has not shown diligence in seeking habeas relief given that he filed his state court motion for relief from judgment nearly 10 years after this Court dismissed his first federal habeas petition. He is thus not entitled to equitable tolling of the limitations period. See Dunlap, 250 F.3d at 1010; Jones v. Gundy, 100 F. Supp.2d 485, 488 (W.D. Mich. 2000).
III. Conclusion
Based on the foregoing analysis, the Court concludes that Petitioner failed to file his habeas petition within the one-year limitations period established by 28 U.S.C. § 2244(d) and that the statute of limitations precludes federal review of the petition.
Before Petitioner may appeal this Court's dispositive decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed.R.App.P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right" 28 U.S.C. § 2253(c)(2). When a federal district court denies a habeas claim on procedural grounds without addressing the claim's merits, 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. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a plain procedural bar is present and the district court is correct to invoke it to dispose of the matter, 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. In such a case, no appeal is warranted. Id. This Court is satisfied that jurists of reason could not find this Court's procedural ruling debatable. No certificate of appealability is warranted in this case nor should Petitioner be granted leave to proceed on appeal in forma pauperis. Fed.R.App.P. 24(a).
Accordingly;
IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED and leave to proceed on appeal in forma pauperis is DENIED.