Opinion
Case Number: 98-72235
March 7, 2002
JUDGMENT
IT IS ORDERED AND ADJUDGED that pursuant to this Court's Opinion and Order dated 3-7-02, this cause of action is DISMISSED WITH PREJUDICE.
OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR RELIEF FROM JUDGMENT AND MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Willie Falls is a state inmate currently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan. Petitioner filed a motion to reopen his habeas corpus proceeding, which was granted on September 18, 2001. Now before the Court is Respondent's Motion for Relief from Judgment and Motion to Dismiss for Failure to Comply with the Statute of Limitations.
II. Procedural History
Petitioner originally filed a pro se petition for a writ of habeas corpus in this Court on May 27, 1998. Thereafter, Petitioner filed a Motion to Stay, in which Petitioner sought a stay of the habeas corpus proceedings so that he could return to state court to exhaust previously unexhausted claims. On August 24, 1998, this Court issued an Order Denying Petitioner's Motion to Stay and Dismissing Habeas Corpus Petition With Prejudice. 1998. The Court relied upon Petitioner's statement in his habeas corpus petition, that he filed his motion for relief from judgment on or around September 14, 1998. However, based upon the docket sheet submitted by Respondent in support of his motion for relief from judgment, Petitioner did not actually file his motion until June 7, 1999. The Court must therefore reexamine the timeliness of the habeas corpus petition in light of this new information.
Petitioner's conviction became final on August 29, 1997. On May 27, 1998, after 242 days of the one-year limitations period had elapsed, Petitioner filed his habeas corpus petition in this Court. That petition was dismissed without prejudice on August 24, 1998. The Supreme Court has held that 28 U.S.C. § 2244(d)(2)'s tolling provision "does not toll the limitations period during the pendency of a federal habeas petition."Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001). However, the Court did not foreclose the possibility that a federal court may equitably toll the limitations period during the pendency of a federal habeas corpus petition. Id. at 2130 (Stevens, J. concurring). In this case, even if the Court equitably tolls the limitations period during the time period Petitioner's first habeas corpus petition was pending in this Court, a second habeas corpus petition would be untimely. Petitioner's first habeas corpus petition was filed after 242 days of the limitations period already had elapsed. The petition was dismissed and the limitations period resumed running on August 24, 1998. Petitioner did not seek collateral review in state court until June 7, 1999. Thus, the limitations period, of which 123 days remained, resumed running on August 24, 1998, and continued to run uninterrupted until December 26, 1998. The filing of the motion for relief from judgment did not serve to toll the limitations period, because the limitations period already had expired five months earlier.
Thus, permitting Petitioner to reopen the previous habeas corpus proceeding, would amount to equitably tolling the limitations period between the time the first petition was dismissed by this Court and the time Petitioner sought collateral review in state court.
The Sixth Circuit Court of Appeals has identified the following five factors to be considered in determining the appropriateness of equitably tolling a statute of limitations: (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 v. U.S., 250 F.3d 1001, 1008 (2001).
The Court finds Petitioner's lack of diligence in pursuing his rights to be dispositive in this case. An essential component of the doctrine of equitable tolling is a petitioner's diligent pursuit of federal habeas relief. See, e.g., Morgan v. Money, 2000 WL 178421 (6th Cir. Feb. 8, 2000) (holding that a petitioner must show that he exercised due diligence in pursuing § 2254 relief to support equitable tolling). See also Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000) (holding that petitioner "did not meet the high threshold for obtaining [equitable tolling] because he did not act diligently to pursue his ineffective assistance of appellate counsel claim in either state or federal court"); Jones v. Gundy, 2000 WL 745411 (W.D. Mich. June 8, 2000) (rejecting a petitioner's argument for equitable tolling where petitioner did not diligently pursue his rights and failed to provide any explanation to excuse such failure). On August 24, 1998, the Court dismissed the petition for failure to exhaust state court remedies. Petitioner waited until June 7, 1999, to pursue collateral relief in state court. Petitioner offers no reason or justification for this ten-month delay.
Although the Court did not, in dismissing the first petition without prejudice, require Petitioner to return to state court within a certain time period, Petitioner still was required to exercise diligence in pursuing his rights. If Petitioner had diligently pursued his rights by promptly filing a motion for collateral review in state court, Petitioner could have timely filed a second habeas petition. If the Court permits Petitioner to wait over a year to move for collateral review in state court and then reopen the prior habeas corpus proceeding, the Court would, in effect, be permitting Petitioner to circumvent § 2244(d)(1)'s one-year limitations period.
Thus, the Court concludes that Respondent is entitled to relief from judgment because the Court's prior Opinion permitting Petitioner to reopen the habeas corpus proceeding was based upon Petitioner's misrepresentation to the Court that his motion for relief from judgment was filed on September 14, 1998. The Court notes that, in his response to the motion for relief from judgment, Petitioner provides no explanation for the discrepancy between the date he claims to have filed his motion for relief from judgment and the date, nine-months later, on which his motion actually was filed. Thus, the Court will grant Respondent's motion for relief from judgment and will dismiss the petition as untimely.
IV. Conclusion
Accordingly, IT IS ORDERED that Respondent's Motion for Relief from Judgment and Motion to Dismiss for Failure to Comply with the Statute of Limitations are GRANTED.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is DISMISSED.