Summary
construing § 2254 petition challenging Parole Board's decisions as being filed under § 2241
Summary of this case from Clark v. CarrOpinion
Civil No. 00-CV-73004-DT
February 28, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Arthur Johnson, Jr., ("petitioner"), presently confined at the Ionia Maximum Correctional Facility in Ionia, Michigan, has filed three separate habeas petitions which have been consolidated before this Court. In this consolidated petition, petitioner has filed a pro se application pursuant to 28 U.S.C. § 2254, in which he challenges his 1994 convictions for attempted breaking and entering an occupied dwelling with intent to commit larceny, M.C.L.A. 750.110; M.S.A. 28.305; M.C.L.A. 750.92; M.S.A. 28.287; and being a fourth felony habitual offender. M.C.L.A. 769.12; M.S.A. 28.1084. Petitioner also challenges the Michigan Parole Board's decision to deny him parole for this offense, which is construed as being filed under 28 U.S.C. § 2241. For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
See Orders Regarding Reassignment of Companion Case, 00-73177; 00-74031.
See In Re Slatton, 165 F.3d 28, 1998 WL 661148, * 3 (6th Cir. September 1, 1998).
I. BACKGROUND
Petitioner was convicted of the above offenses in the Detroit Recorder's Court on April 13, 1994 and was sentenced to three to fifteen years in prison on May 4, 1994. Petitioner never filed a direct appeal in this case. However, on or about September 11, 1997, petitioner filed a postconviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq. The trial court denied petitioner's motion. People v. Johnson, Case No. 93-09445 (Third Judicial Circuit Court, Criminal Division, December 14, 1998). Petitioner did not appeal the denial of this motion. However, on March 6, 1998, petitioner filed a petition for writ of habeas corpus with this Court, which was dismissed without prejudice for failure to exhaust state court remedies. Johnson v. Stine, 97-CV-75929-DT (E.D.Mich. January 24, 1999)(Roberts, J.). After petitioner's motion for reconsideration was denied, the United States Court of Appeals for the Sixth Circuit dismissed petitioner's appeal for lack of jurisdiction. Johnson v. Hofbauer, U.S.C.A. 99-2384 (6th Cir. March 21, 2000).
Petitioner attempted to file a second motion for relief from judgment on June 25, 1999 with the state trial court. This second motion for relief from judgment was also denied. People v. Johnson, Case No. 93-09445 (Third Judicial Circuit Court, Criminal Division, July 22, 1999). After the Michigan Court of Appeals denied petitioner's application for leave to appeal without prejudice for failure to file the case in conformity to the rules, People v. Johnson, 221630 (Mich.Ct.App. November 2, 1999), the Michigan Supreme Court denied leave to appeal on June 20, 2000. People v. Johnson, 617 N.W.2d 330 (2000). Petitioner filed the instant petition on June 26, 2000.
II. DISCUSSION
A. Petitioner's challenge to his criminal conviction is barred by the statute of limitations.
Petitioner's habeas challenge to his criminal conviction must be dismissed because it has not been filed within the one year statute of limitations. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year statute of limitations shall apply to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. The one year statute of limitation 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.28 U.S.C. § 2244 (d)(1).
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. Nelson v. McLemore, 2000 WL 654942 (E.D. Mich. May 22, 2000); Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D. Mich. 1998).
As an initial matter, the Court notes that petitioner never sought direct review of his conviction with the Michigan courts. Because petitioner never appealed his conviction, the one year time period for filing his habeas petition would begin to run for petitioner after the expiration of the time limit that petitioner had under state law to file the direct appeal from his conviction. See McAfee v. Angelone, 87 F. Supp.2d 605, 606 (W.D. Va. 2000). However, a petitioner whose state court proceedings were completed prior to the effective date of the habeas reform law generally has one year from April 24, 1996, the effective date of the AEDPA, to file his or her petition for writ of habeas corpus with the federal court. Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000); Turner v. Smith, 70 F. Supp.2d 785, 787 (E.D. Mich. 1999). Petitioner therefore had until April 24, 1997 to timely file a petition for writ of habeas corpus with this Court unless the limitations period was somehow tolled.
Under M.C.R. 7.204(A)(2)(c), petitioner would have had forty two days from the date of the judgment of sentence to file an appeal of right with the Michigan Court of Appeals. However, if petitioner did not timely file an appeal of right, under the court rules in effect at the time of his sentence, petitioner would have had eighteen months in which to file a delayed application for leave to appeal with the Michigan Court of Appeals. M.C.R. 7.205(F). Under M.C.R. 7.302(C)(3), petitioner would then have had fifty six days following denial of his appeal by the Michigan Court of Appeals to seek leave to appeal with the Michigan Supreme Court. Even giving petitioner the benefit of all of these dates, petitioner's conviction would have become final, for purposes of 2244 (d)(1), no later than November 29, 1995.
Petitioner filed a postconviction motion for relief from judgment with the trial court on September 11, 1997. 28 U.S.C. § 2244 (d)(2) expressly provides that the time during which a properly filed application for state postconviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute. Matthews v. Abramajtys, 39 F. Supp.2d 871, 874 (E.D. Mich. 1999). This tolling provision is applicable to state prisoners like petitioner whose one year limitations period for seeking federal habeas relief began to run on the AEDPA's enactment date. Lucas v. Carter, 46 F. Supp.2d 709, 711 (N.D. Ohio 1999). However, petitioner's postconviction motion would not toll the statute of limitations because it was filed over four months after the one year limitations period for filing the petition for writ of habeas corpus had ended. Sorce v. Artuz, 73 F. Supp.2d 292, 297 (E.D.N.Y. 1999); See also Green v. Stegall, 2000 WL 1480891, * 2 (E.D. Mich. August 29, 2000) (petition untimely when postconviction motion was filed almost one month after the one year limitations period had elapsed). A state court postconviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Moreover, the one year limitations period would not begin to run anew following the denial of petitioner's state postconviction motions. The proper calculation of the tolling provisions of 28 U.S.C. § 2244 (d)(2) excludes the time during which a properly filed postconviction relief application is pending, but it does not reset or restart the date from which the one year statute of limitations begins to run. Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000). The tolling provision of the AEDPA does not allow the one year period to begin to run anew each time a postconviction motion is ruled upon. Evans v. Senkowski, 105 F. Supp.2d 97, 99 (E.D.N Y 2000).
Petitioner does not deny in his response to the respondent's answer that he filed his state postconviction motion for relief from judgment on September 11, 1997. This fact must be taken as true against petitioner, See Hervey v. United States, 105 F. Supp.2d 731, 734-735 (E.D. Mich. 2000); 28 U.S.C. § 2248, particularly where petitioner gives a later date of September 27, 1997 in one of his habeas petitions as being the date that he filed this motion. See Case No. 00-74031, p. 4.
Petitioner claims that his petition is timely because on October 29, 1999, petitioner filed a state habeas action, in which he challenged the Michigan Parole Board's classification screening of him. Petitioner's challenge to the Parole Board's decision ended when the Michigan Supreme Court denied leave to appeal on September 6, 2000. People v. Johnson, 117600 (Mich.Sup.Ct. September 6, 2000). Petitioner argues that the judgment of his criminal conviction only became final, for purposes of the AEDPA's one year statute of limitations, on that date.
The Court cannot accept petitioner's argument. The word "judgment", as used in 2244(d)(1), refers to the sentence, as opposed to the conviction, See Burns v. Parke, 95 F.3d 465, 467 (7th Cir. 1996). A denial of parole is a decision to withhold early release from the confinement component of a sentence. Alessi v. Quinlan, 711 F.2d 497, 501 (2nd Cir. 1983). A denial of parole merely requires a prisoner to serve out the length of his or her sentence. This denial does not enhance the sentence imposed upon the prisoner by the court. Manso v. Patrick, 983 F. Supp. 1113, 1117-1118 (S.D. Fla. 1997). Although the statute of limitations runs from the date of a re-sentencing judgment and not the date of the original judgment, See Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000), the decision by the Parole Board to deny petitioner release on parole did not constitute a resentencing, but rather, a determination by the Parole Board that petitioner would have to serve out at least a remaining portion of the original sentence imposed. Thus, the judgment of conviction did not become final, for purposes of § 2244(d)(1), when the Michigan Supreme Court denied petitioner's challenge to his parole classification, as petitioner contends.
To the extent that petitioner is arguing that his state habeas petition challenging his parole classification would be a postconviction motion that would toll the statute of limitations pursuant to § 2244(d)(2), this argument must be rejected also. A properly filed state petition or motion for postconviction or other review does not toll the statute of limitations for purposes of § 2244(d)(2), unless the state postconviction petition raises a federal constitutional issue that would be cognizable on federal habeas review. Austin v. Mitchell, 200 F.3d 391, 394 (6th Cir. 1999). Because petitioner's challenge to the Michigan Parole Board's classification decisions is not a federally cognizable claim, (See, infra), this state habeas petition would not toll the limitations period.
Lastly, assuming that the actual innocence of a habeas petitioner might permit the filing of an untimely habeas petition, petitioner has failed to make a showing of actual innocence, where he has offered no new reliable evidence of innocence in support of his claim. Thomas v. Straub, 10 F. Supp.2d at 836. Because petitioner has failed to assert a credible claim of actual innocence sufficient to excuse the one year limitations period, he is not entitled to have the statute of limitations tolled in this case. Rockwell v. Jones, 2000 WL 973675, * 5-7 (E.D. Mich. June 30, 2000). Petitioner's challenge to his 1994 criminal conviction is therefore untimely under § 2244(d)(1).
B. Petitioner's challenge to the Michigan Parole Board's decisions regarding his parole eligibility does not state a claim cognizable in federal habeas review.
Petitioner also raises six different claims against the Michigan Parole Board involving decisions regarding his parole eligibility.
There is no constitutional right of a convicted person to be conditionally released before the expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979); See also Board of Pardons v. Allen, 482 U.S. 369, 377, fn. 8 (1987). Stated more succinctly, there is no federal constitutional right to parole. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Lee v. Withrow, 76 F. Supp.2d 789, 792 (E.D. Mich. 1999). The denial of parole and the continued incarceration of a prisoner does not therefore constitute a violation of the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution. Lee, 76 F. Supp.2d at 792; Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992); Nedea v. Voinovich, 994 F. Supp. 910, 918 (N.D.Ohio 1998). Therefore, requiring a prisoner to serve even his or her maximum sentence works no constitutional violation upon an inmate. Nedea, 994 F. Supp. at 919 n. 20.
In Michigan, a prisoner's release on parole is discretionary with the parole board. Lee v. Withrow, 76 F. Supp.2d at 792 (citations omitted). The Michigan parole statute therefore does not create a right to be paroled. Id., ( citing to Hurst v. Department of Corrections Parole Bd., 119 Mich. App. 25, 29, 325 N.W.2d 615 (1982)). Because the Michigan Parole Board has the discretion whether to grant parole, a defendant does not have a protected liberty interest in being paroled prior to the expiration of his or her sentence. Canales v. Gabry, 844 F. Supp. 1167, 1171 (E.D. Mich. 1994); Hurst, 119 Mich. App. at 28. The Sixth Circuit has held that M.C.L.A. 791.233; M.S.A. 28.2303, Michigan's parole statute, does not create a protected liberty interest in parole, because the statute does not place any substantive limitations on the discretion of the parole board through the use of particularized standards that mandate a particular result. Janiskee v. Michigan Dep't of Corrections, 932 F.2d 968, 1991 WL 76181, *1 (6th Cir. May 9, 1991) (citations omitted). Moreover, even if Michigan's parole statute may have created a "protectible expectation of parole," Canales, 844 F. Supp. at 1171, no more procedural due process is constitutionally required than giving petitioner the opportunity to be heard, and when parole is denied, informing the inmate in what respect he or she falls short of qualifying for parole. Id.; Lee, 76 F. Supp.2d 793.
In the present case, petitioner does not allege that he was denied an opportunity to be heard or that the Parole Board failed to inform him in what respect he fell short of qualifying for parole. Instead, petitioner alleges that the Parole Board used incorrect information in their decision to deny him parole and gave him an improper parole classification. However, because petitioner has no state created liberty interest in being paroled, he may not challenge the procedures used to deny him parole. See Thomas v. Morgan, 109 F. Supp.2d 763, 768 (N.D. Ohio 2000). Accordingly, petitioner has failed to state a claim upon which habeas relief can be granted.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.