Opinion
Case No. 01-10369-BC
March 31, 2003
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Ruthie Mae Evans, a state prisoner currently confined at the Scott Correctional Facility in Plymouth, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that she is incarcerated in violation of her constitutional rights. The petitioner pleaded guilty to second-degree murder and armed robbery in the Washtenaw County Circuit Court and was sentenced in 1976 to a term of twenty to forty years imprisonment on the robbery conviction and life imprisonment on the murder conviction. In her pleadings, the petitioner asserts that she was denied the effective assistance of counsel, that her sentence is disproportionate and constitutes cruel and unusual punishment, and that her guilty plea was involuntary.
This matter is before the Court on respondent's motion to dismiss the petition for failure to comply with the one-year statute of limitations. The Court agrees that the petition is untimely, and will grant the motion.
I.
Following her convictions and sentencing in 1976, the petitioner did not file a direct appeal with the Michigan appellate courts. See Petition at 2. On July 15, 1998, the petitioner filed a motion for relief from judgment with the trial court, which was denied on December 1, 1998. The petitioner then filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Evans, No. 220619 (Feb. 1, 2000). The petitioner's delayed application for leave to appeal to the Michigan Supreme Court was also denied. People v. Evans, No. 116584 (Nov. 29, 2000).
The petitioner filed the present petition for a writ of habeas corpus on November 29, 2001. On May 10, 2002, respondent filed a motion to dismiss the habeas petition because it was filed outside the one-year statute of limitations established by 28 U.S.C. § 2244(d)(1). The petitioner has not responded to the motion.
II.
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 because the petitioner filed her pleadings in this Court after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA amended 28 U.S.C. § 2244 to include a 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). The revised statute provides:
(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).
In this case, the 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, the petitioner was required to file her 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).
The petitioner did not file her motion for relief from judgment with the state trial court until July 15, 1998. Thus, the one-year limitations period had expired before the petitioner filed her state court post-conviction motion. A 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 Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002). Thus, the petitioner's state court post-conviction proceedings did not toll the running of the statute of limitations.
The petitioner does not assert that the State created an impediment to filing her habeas petition or that her claims are based upon newly-created rights or newly-discovered facts. Her 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 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 this case, the petitioner sets forth no circumstances which caused her to file her state court motion for relief from judgment more than one-year after the expiration of the one-year grace period. The fact that the petitioner is untrained in the law, may have been proceeding without a lawyer, or may have been unaware of the statute of limitations does not warrant tolling. Fisher v. Johnson, 174 F.3d 710, 714-15 (5th Cir. 1999) (holding that "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse [late] filing."); Holloway v. Jones, 166 F. Supp.2d 1185, 1189 (E.D.Mich. 2001) (lack of professional legal assistance does not justify tolling).
Further, the petitioner has not shown diligence in seeking habeas relief given that she filed her motion for relief from judgment with the state trial court twenty-two years after her convictions and more than one year after the expiration of the one-year grace period. The petitioner then waited an additional year after the conclusion of those proceedings to file her federal habeas petition. She 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.
The petitioner failed to file her habeas petition within the one-year limitations period established by 28 U.S.C. § 2244(d), and the statute of limitations therefore precludes federal review of the petition.
Accordingly, it is ORDERED that the respondent's motion to dismiss [dkt #7] is GRANTED.
It is further ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.
JUDGMENT
In accordance with the Order entered on this date, It is ORDERED AND ADJUDGED that the Petition For Writ of Habeas Corpus is DISMISSED with prejudice.