Opinion
Case No. 99-CV-76269-DT
August 15, 2000
I. Introduction
Petitioner John Tyrone Green, a Michigan prisoner currently in custody at the Ryan Correctional Facility in Detroit, 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. Petitioner was convicted of two counts of first-degree murder following a bench trial in the Recorder's Court for the City of Detroit in 1992. He was sentenced to concurrent terms of life imprisonment without parole to be served consecutively to completion of a sentence for which he had been paroled. Respondent has filed a motion to dismiss the petition asserting that Petitioner has failed to comply with the statute of limitations. For the reasons set forth below, this Court finds that the petition is untimely and concludes that it must be dismissed for failure to comply with the statute of limitations.
II. Procedural History
Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, asserting that there was insufficient evidence to support his convictions for first-degree murder, his statement/confession was involuntary, and he was denied his right to a speedy trial. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Green, No. 171433 (Mich.Ct.App. May 21, 1994). Petitioner did not seek leave to appeal this decision with the Michigan Supreme Court. See Affidavit of Corbin R. Davis dated Nov. 9, 1999. Petitioner apparently did not seek any post-conviction or other collateral review in the state courts.
Petitioner submitted his petition for a writ of habeas corpus, dated July 18, 1999, to this Court on August 9, 1999 and the petition was filed on August 24, 1999. Petitioner asserts a violation of the Interstate Agreement on Detainers Act, a violation of his right to a speedy trial, and the ineffective assistance of counsel. Respondent filed a motion to dismiss the habeas petition on May 26, 2000, asserting that the petition was filed outside the one-year statute of limitations established by 28 U.S.C. § 2244 (d)(1). Petitioner filed a response to the motion to dismiss on July 26, 2000.
III. 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 application in this case because Petitioner filed his application 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 (Tarnow, 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 the 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).
In this case, Petitioner's convictions became final before the AEDPA's April 24, 1996 effective date. The United States Court of Appeals for the Sixth Circuit has recently joined several other circuit courts in concluding that prisoners whose convictions became final prior to the AEDPA's effective date should be given a one-year grace period in which to file their federal habeas petitions. Brown v. 0'Dea, 187 F.3d 572, 577 (6th Cir. 1999); Harris v. Stovall, 22 F. Supp.2d 659, 664 (Tarnow, E.D. Mich. 1998); accord Brown v. Angelone, 150 F.3d 370, 375-76 (4th Cir. 1998); United States v. Flores, 135F.3d 1000, 1006 (5thCir. 1998); Burns v. Morton, 134F.3d 109, 111-12 (3d Cir. 1998); Calderon v. United States Dist. Ct., 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, ___ U.S ___ 118 S.Ct. 899 (1998); United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir. 1997). Accordingly, Petitioner was required to file his 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).
In this case, the record indicates that Petitioner did not file an application for state post-conviction or collateral review which tolled the statute of limitations prior to filing the present petition for a writ of habeas corpus. Thus, Petitioner had one year from the AEDPA's April 24, 1996 effective date to file his habeas petition. Petitioner did not attempt to file the instant habeas petition until, at the earliest, July 18, 1999, the date upon which he signed the petition — more than two years after the April 24, 1997 expiration date of the one-year grace period. Thus, Petitioner's present habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244 (d).
Several courts have concluded that the limitations period is not a jurisdictional bar and may be subject to equitable modifications such as tolling. See, e.g., Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 617-19 (3rd Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); cert. denied, ___ U.S. ___, 119 S.Ct. 210 (1998); Calderon, 128 F.3d at 1287; Thomas v. Straub, 10 F. Supp.2d 834, 835-36 (Duggan, E.D. Mich. 1998). Petitioner, however, has not established that the State created an obstacle to the filing of his application, that his claims are based upon newly-created rights or newly-discovered facts, or that the one-year period should otherwise be tolled due to extraordinary circumstances.
Petitioner instead asserts that the AEDPA's limitations period is unconstitutional because it violates the Suspension and Privileges and Immunities Clauses of the Constitution. This Court disagrees. Under the Suspension Clause, Congress cannot abolish habeas corpus except in situations of rebellion or invasion. U.S. CONST. art. I, § 9, cl. 2. The United States Supreme Court has found that habeas legislation violates the Suspension Clause only when it unreasonably "renders the habeas remedy "inadequate or ineffective' to test the legality of detention." Miller, 141 F.3d at 977 (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977), and United States v. Hayman, 342 U.S. 205, 223 (1952)). Because the AEDPA's statute of limitations leaves habeas petitioners with a reasonable opportunity to have their claims heard on the merits, the limitations period does not render the habeas remedy "inadequate or ineffective to test the legality of detention." See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000); Miller, 141 F.3d at 978; Rhodes v. Senkowski, 82 F. Supp.2d 160, 174 (S.D.N.Y. 2000); Biladeau v. Angelone, 39 F. Supp.2d 652, 657-58 (E.D. Va. 1999). The AEDPA's statute of limitations does not constitute an unconstitutional suspension of the writ of habeas corpus.
Petitioner's assertion that the AEDPA's statute of limitations violates the Privileges and Immunities Clause is similarly without merit. The Privileges and Immunities Clause states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." U.S. CONST. art. IV, § 2. The purpose of the clause is to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. See Toomer v. Witsell, 334 U.S. 385, 395 (1948). The Clause "thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment." Austin v. New Hampshire, 420 U.S. 656, 660 (1975). Petitioner has not shown how the AEDPA's statute of limitations affects him differently than any other habeas petitioner subject to its provisions. The AEDPA's limitations period does not infringe upon any "privilege" afforded habeas petitioners.
Further, to the extent that Petitioner may be claiming that he is actually innocent of the charged offenses, he is not entitled to equitable tolling. Assuming that actual innocence may be grounds for equitable tolling under 28 U.S.C. § 2244 (d)(1), prisoners must diligently pursue their habeas claims to avail themselves of equitable tolling. See Miller, 141 F.3d at 978. It is clear that Petitioner has not done so given the long delay between the conclusion of his state court proceedings and the filing of his federal habeas petition. Further, Petitioner merely alleges that his habeas claims are meritorious, he does not support his allegation of innocence with sufficient evidence to undermine the Court's confidence in the outcome of his criminal proceedings. See Schlup v. Delo, 513 U.S. 298, 316 (1995); see also Thomas, 10 F. Supp.2d at 836 (rejecting unsupported allegation of actual innocence as reason to toll the limitations period, assuming that such an exception exists).
Lastly, 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); Henderson v. Johnson, 1 F. Supp.2d 650, 654-5 6 (N.D. Tex. 1998).
IV. Conclusion
Based on the foregoing analysis, the Court concludes that Petitioner failed to file his habeas petition within the one-year limitations period set by 28 U.S.C. § 2244 (d) and has not demonstrated that extraordinary circumstances caused him to file his petition after the expiration of the statutory period.
Accordingly,
IT IS ORDERED that Respondent's motion is GRANTED and that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.
Given this determination, IT IS FURTHER ORDERED that Petitioner's outstanding motions are DENIED AS MOOT.