Opinion
Civil Case No. 03-CV-71890-DT
July 31, 2003
OPINION AND ORDER OF SUMMARY DISMISSAL
Petitioner, an inmate at the Riverside Correctional Facility in Ionia, Michigan, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his pro se application, petitioner challenges his convictions for first-degree criminal sexual conduct, M.C.L.A. 750.520b; M.S.A 28.788(2); assault with intent to murder, M.C.L.A. 750.83; M.S.A. 28.278; larceny from a person, M.C.L.A. 750.357; M.S.A. 28.589; and felony-firearm; M.C.L.A. 750.227b; M.S.A. 28.424(2). For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DISMISSED pursuant to 28 U.S.C. § 2244 (d)(1).
I. Background
Petitioner was convicted of the above offenses on October 3, 1983, following a bench trial in the Detroit Recorder's Court. Petitioner's direct appeals ended when the Michigan Supreme Court denied him leave to appeal on October 27, 1986 following the affirmance of his conviction by the Michigan Court of Appeals. See People v. Hunter, 426 Mich. 871 (1986). Petitioner was re-sentenced on January 30, 1987 pursuant to a remand order from the Michigan Court of Appeals. Petitioner does not appear to have appealed from this re-sentencing.
Petitioner filed a post-conviction motion for relief from judgment with the Wayne County Circuit Court, Criminal Division on July 2, 2001, which was denied on September 24, 2001. People v. Hunter, 83-3269 (Wayne County Circuit Court, Criminal Division, September 24, 2001). Petitioner's application for leave to appeal to the Michigan Court of Appeals was denied on February 20, 2002. People v. Hunter, 237552 (Mich.Ct.App. February 20, 2002). The Michigan Supreme Court denied leave to appeal on September 30, 2002. People v. Hunter, 467 Mich. 882 (2002). The instant petition was filed on May 5, 2003.
In 1996, the Michigan Legislature abolished the Detroit Recorders Court and merged its functions with the Wayne County Circuit Court. See Anthony v. Michigan, 35 F. Supp.2d 989, 996-997 (E.D. Mich. 1999).
Under the prison mailbox rule, a federal habeas petition is filed when the prisoner gives his petition to prison officials for mailing to the federal courts. Hudson v. Martin, 68 F. Supp.2d 798, 799, fn. 2 (E.D. Mich. 1999). Absent evidence to the contrary, a federal court will assume that a prisoner gave his habeas petition to prison officials on the date he signed it, for the purposes of the AEDPA's one year limitations period. Id. Because petitioner's habeas petition is signed and dated May 5, 2003, this Court assumes that this was the date that petitioner actually filed his petition with this Court.
On May 22, 2003, petitioner was ordered to show cause why his habeas petition should not be dismissed for failing to comply with the one year statute of limitations contained in 28 U.S.C. § 2244 (d)(1). On June 13, 2003, petitioner filed a response to the order to show cause.
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.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which was signed into law on April 24, 1996, amended the habeas corpus statute in several respects, one of which was to mandate a statute of limitations for habeas actions. 28 U.S.C. § 2244 (d) imposes a one-year statute of limitations upon petitions for habeas relief:
(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 originally 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.
Because petitioner filed this petition after the effective date of the habeas reform law, the requirements of the AEDPA, including the statute of limitations, would be applicable to his case. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 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, the direct appeal of petitioner's conviction ended when the Michigan Supreme Court denied petitioner's application for leave to appeal on October 27, 1986. 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 25, 1987, 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. However, 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.
Petitioner filed a post-conviction motion for relief from judgment with the Wayne County Circuit Court, Criminal Division on July 2, 2001, after the one year limitation period had already expired. 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. Corbin v. Straub, 156 F. Supp.2d 833, 836 (E.D. Mich. 2001). However, 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. Moreover, 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). The instant petition is therefore untimely.
In both his habeas petition and in his response to the order to show cause, petitioner argues that the one year limitations period contained in § 2244(d)(1) does not apply to his habeas petition, because he filed this petition under 28 U.S.C. § 2241, and not under 28 U.S.C. § 2254. The Court cannot accept this argument. A habeas petitioner is "not permitted to circumvent the procedural requirements and gatekeeping mechanisms of § 2254 and § 2255 merely by labeling a petition as one brought under § 2241". Woodfin v. Angelone, 213 F. Supp.2d 593, 595 (E.D. Va. 2002); appeal dism. 46 Fed. Appx. 729 (4th Cir. 2002); cert. den. 123 S.Ct. 1638 (2003); reh. den. 123 S.Ct. 1961 (2003). The statute of limitations contained in § 2244(d)(1) applies to all applications for a writ of habeas corpus brought by a person in custody pursuant to a judgment of a state court and does not distinguish between applications filed under § 2241 and those filed under § 2254. Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000); See also McLean v. Smith, 193 F. Supp.2d 867, 872 (M.D.N.C. 2002) (section 2244(d)(1) applies to all habeas petitions filed by convicted state prisoners, regardless of whether the petition was filed pursuant to § 2241 or § 2254); Woodfin v. Angelone, 213 F. Supp.2d at 595-596 (dismissing habeas petition brought by state prisoner under § 2241 as being time barred by the AEDPA's statute of limitations period). Because petitioner is challenging his state court conviction in this application, the one year limitations period contained in 28 U.S.C. § 2244 (d)(1) applies to his petition even though petitioner filed it under § 2241.
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). The Sixth Circuit 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 Grayson v. Grayson, 185 F. Supp.2d at 751. In the present case, petitioner is not entitled to equitable tolling of the one year limitations period, because petitioner has failed to allege the existence of any extraordinary circumstances which prevented him from filing his habeas petition on time. Wilson v. Birkett, 192 F. Supp.2d 763, 766-767 (E.D. Mich. 2002).
Finally, although some courts have suggested that a claim of actual innocence of a habeas petitioner might permit the filing of an untimely habeas petition, Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D. Mich. 2001), Thomas v. Straub, 10 F. Supp.2d at 836, this Court need not address that issue in this case, because petitioner has failed to make a credible showing of actual innocence. Neal v. Bock, 137 F. Supp.2d 879, 885 (E.D. Mich. 2001).
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. CONCLUSION
Accordingly, the Court dismisses with prejudice the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244 (d)(1).
IT IS HEREBY ORDERED that Petitioner Writ of Habeas Corpus [Docket No: 1-1, dated May 16, 2003] is DISMISSED WITH PREJUDICE.