Opinion
Case No. 99-CV-10355-BC
November 15, 2001
OPINION AND ORDER DISMISSING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Terry McGruder, has filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner is a state inmate currently confined in Kincheloe, Michigan. The petitioner was confined at the Mid-Michigan Correctional Facility in St. Louis, Michigan, when he filed his habeas petition. The matter is presently before this Court after remand by the United States Court of Appeals for the Sixth Circuit. The respond has filed a motion to dismiss the petitioner as time barred, and the Court shall now grant the motion.
I.
In 1983, the petitioner was convicted of armed robbery, Mich. Comp. Laws § 750.529, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b (felony firearm). On September 11, 1983, the trial court sentenced petitioner to two years in prison for the felony firearm conviction and to a consecutive term of ten to twenty years for the armed robbery conviction. The Michigan Court of Appeals affirmed the petitioner's conviction in an unpublished, per curiam opinion. See People v. McGruder, No. 115986 (Mich.Ct.App. Apr. 4, 1990). The Michigan Supreme Court denied leave to appeal. See People v. McGruder, No. 88977 (Mich.Sup.Ct. Nov. 29, 1990).
On April 20, 1993, the petitioner filed a motion for relief from judgment, which the trial court denied on June 8, 1993. The petitioner did not appeal the trial court's decision.
The petitioner alleges that he was paroled on August 14, 1995, after serving twelve years and four months in prison. However, on or about May 31, 1996, he was charged with violating the conditions of parole. On July 23, 1996, he appeared before the Michigan Parole Board ("Parole Board"), which revoked his parole and ordered a twelve-month continuance. The petitioner appealed the Parole Board's decision to the Wayne County Circuit Court, but on April 18, 1997, the circuit court dismissed his appeal on the ground that the court lacked jurisdiction to grant the requested relief. The petitioner's motion for reconsideration was denied on April 28, 1999.
The petitioner alleges that he went before the parole board a second time and received an eighteen-month continuance. The petitioner appealed the Parole Board's decision, but, on April 28, 1999 the state circuit court once again dismissed his appeal for Jack of jurisdiction.
On August 26, 1999, the petitioner signed and dated his habeas petition. He alleges that he was deprived of: (1) the effective assistance of trial counsel; (2) an appeal of right; (3) procedural due process at his parole revocation hearing; and (4) his rights under the Ex Post Facto Clause of the United States Constitution. This Court's predecessor summarily dismissed the petition on the basis that it was barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244.
The Court deems the petition "filed" on the date that petitioner signed and dated his pleading because "[l]iberal application of the mailbox rule, see Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), causes [the Court] to treat the petition as placed in the hands of prison authorities on the same day it was signed." Marsh v. Soares, 223 F.3d 1217, 1218 n. 1 (10th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1195 (2001).
Petitioner appealed the dismissal of his habeas petition, alleging for the first time that there were matters pending in state court until April 28, 1999, and, therefore, the period of limitation was tolled. The United States Court of Appeals for the Sixth Circuit concluded that petitioner's contention was "unsupported by any documentation showing the exact nature of the state post-conviction or collateral proceeding and whether it was directed to the 1983 conviction or the 1996 parole revocation." McGruder v. Renico, No. 00-1023, at 2 (6th Cir. Jan. 31, 2001). The Sixth Circuit went on to say that "[t]he lack of this documentation, exacerbated by the absence of the Michigan Attorney General, means that a full appellate review of this case is not possible. A remand of this matter will enable the court to either resolve the immediate problem or to decide the petition on its merits." Id. at 2-3.
Following remand, this Court ordered the respondent to file a responsive pleading. The respondent then filed a motion to dismiss the habeas petition on the ground that it was not filed within the applicable statute of limitations. The respondent's motion currently is pending before the Court, as are the petitioner's motions to comply with the order to furnish documentation, for appointment of counsel, and for oral arguments.
II.
Courts may dismiss an action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "What that means in the statute of limitations context is that dismissal is appropriate only if a complaint clearly shows the claim is out of time." Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999).
At issue here is the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) ("the AEDPA"), which established a one-year period of limitation for filing habeas petitions that challenge state court convictions. See 28 U.S.C. § 2244(d), which states:
(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.
For inmates like petitioner, whose convictions became final before the effective date of the AEDPA, a one-year grace period applies. Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1211 (2001); Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999), vacated on other grounds, 530 U.S. 1257 (2000). Absent tolling, petitioner had until April 24, 1997, to file his habeas petition. Isham, 226 F.3d at 693.
A.
The Court concludes that petitioner's first two grounds for relief (alleging that petitioner was denied the effective assistance of trial counsel and that he was denied an appeal of right) attack the validity of his 1983 convictions. Any attack on the 1983 convictions is barred by the one-year statute of limitations. The petitioner's conviction became final no later than February 27, 1991, when the ninety-day period for seeking a writ of certiorari in the United States Supreme Court expired, Bronaugh v. Ohio, 235 F.3d 280, 283, 286 (6th Cir. 2000); Sup.Ct. R. 13. The petitioner's attempt to obtain post-conviction relief in state court ended no later than August 3, 1994, when the time for appealing the trial court's denial of his motion for relief from judgment expired, M.C.R. 7.205(F)(3) (providing one year to appeal to the Michigan Court of Appeals); M.C.R. 7.302(C)(3) (providing 56 days to appeal to the Michigan Supreme Court). Therefore, the one-year grace period from the date of enactment of the statute of limitations expired on April 24, 1997, prior to the filing of the habeas petition on August 26, 1999. Finally, the petitioner's attempts to seek judicial review of the parole revocation determination and continuance of his application for parole, which began prior to April 24, 1997 and continued until April 28, 1999, did not toll the one-year limitation period governing the filing of a habeas petition attacking the 1983 convictions.
Moreover, this is not an appropriate case for equitable tolling because petitioner does not allege that he lacked actual notice or constructive knowledge of the statute of limitations, and he has not been diligent in pursuing his challenge to the conviction under attack. Dunlap v. United States, 250 F.3d 1001, 1003, 1008 (6th Cir. 2001). Accordingly, the Court shall grant the respondent's motion to dismiss petitioner's first and second claims.
B.
The respondent has not addressed the petitioner's third and fourth grounds for relief (that petitioner was deprived of due process at his parole revocation hearing and that rights conferred by the Ex Post Facto Clause were violated). These grounds attack the validity of the parole revocation determination and the ensuing continuance of his application for parole. The Court construes the claims as if brought under 28 U.S.C. § 2241 because they challenge the execution or manner in which the sentence is served. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). The attack on the parole claims is not time-barred either because the AEDPA does not apply to such attacks or because the period of limitation ran for less than a year on those claims. The Court, nevertheless, concludes for the following reasons that the claims do not warrant granting the writ of habeas corpus.
The Court may deny petitioner's application for the writ of habeas corpus even if he did not exhaust state remedies for all his claims. 28 U.S.C. § 2254(b)(2).
1.
The petitioner's third claim is that he was deprived of procedural due process during parole revocation proceedings. Specifically, he alleges that he did not receive a hearing within forty-five days of becoming available to state officials as required by Mich. Comp. Laws § 791.240a(1), and that he was not afforded the assistance of an attorney, as provided by Mich. Comp. Laws § 791.240a(2).The Court may not grant a writ of habeas corpus solely on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984); Miller v. Francis, ___ F.3d ___, No. 00-3237, 2001 WL 1194904, at *9 (6th Cir. Oct. 16, 2001). Further, even if the Court construed the petitioner's claim as a federal due process claim, the Court would have to conclude that the claim lacked merit. The petitioner has no constitutionally protected liberty interest in having a state parole board follow its own. statutes and regulations. Sweeton v. Brown, 27 F.3d 1162, 1165 (6th Cir. 1994) (en banc). Furthermore, the petitioner had no absolute right to the appointment of counsel at his revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Because the petitioner does not explain the circumstances of the revocation proceedings, or even allege that he requested counsel, the Court concludes that the absence of counsel did not violate his right to due process.
Nor did the short delay in granting a revocation hearing violate the petitioner's right to due process. The Supreme Court has concluded that a parole revocation hearing should be held within two months of a parolee being taken into custody. See Morrissey v. Brewer, 408 U.S. 471, 488 (1972). The petitioner alleges that he became available to the Michigan Department of Corrections on June 6, 1996, and that his parole revocation hearing was held on July 23, 1996. No due process violation occurred because the hearing occurred within two months of the petitioner becoming available.
2.
The petitioner's fourth claim is that changes in the law regarding the frequency of parole hearings violates the Ex Post Facto Clause of the United States Constitution. See U.S. Const., art. I, § 10, cl.1. The petitioner alleges that when he was sentenced in 1983, the Parole Board was permitted to grant a continuance for no more than twelve months. He argues that his most recent continuance of eighteen months is a greater punishment, which violates of the Ex Post Facto Clause.
"States are prohibited from enacting an ex post facto law. One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission. Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept." Garner v. Jones, 529 U.S. 244, 249-50 (2000) (citations omitted).
The Supreme Court's decision in Garner was largely based on its earlier decision in California Department of Corrections v. Morales, 514 U.S. 499 (1995). In that case, Morales, who was eligible for parole in 1990, objected to a 1981 legislative enactment, passed shortly after his offense was committed, that permitted the California Board of Prison Terms ("Board") to schedule "suitability" hearings every three years instead of the annual review required previously. Id. at 502-03. Morales came before the Board in 1989 and, finding him entirely unsuitable for release, the Board scheduled Morales's next hearing for some time in 1992. Id. at 503. After his federal habeas petition was granted on appeal by the Ninth Circuit Court of Appeals, which found the 1981 enactment to be an ex post facto law, the State of California successfully petitioned for certiorari. Id. at 504.
The Supreme Court reversed, finding that not every law having some "speculative or tentative effect" on a petitioner's sentence was an ex post facto law. Instead, the question is a "matter of degree," and turns on whether the enactment in question "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. at 509. In this case, the Court found the relationship between the 1981 enactment and the petitioner's sentence to be too speculative. First, the Court found that the law applied only to prisoners convicted of homicide whose release was quite remote. Id. at 510. Second, the enactment did not affect the prisoner's initial hearing, but only subsequent hearings. Id. at 511. Furthermore, a prisoner who experienced a drastic change in his "suitability" in the interim could receive an expedited hearing for release. Id. at 512. See also Garner, 529 U.S. at 254-57 (finding Georgia law not to pose a "significant risk" of increased incarceration, permitting review to be held every eight years instead of every three years as before, where Board could choose a lesser period and expedited hearings were available in appropriate circumstances).
In Michigan, the Parole Board is permitted to set the length of time following revocation of parole before a prisoner is once again eligible for parole. See Wayne County Prosecutor v. Dep't of Corr., 451 Mich. 569, 583 n. 29, 548 N.W.2d 900, 906 n. 29 (1996). The Parole Board may set the interval at one day or for as much as the maximum sentence imposed for the original offense. See id.; Mich. Comp. Laws § 791.238(2). Thereafter, the Parole Board possesses discretion to reconsider parole at intervals of twelve, eighteen, or twenty-four months. See Michigan Department of Corrections Policy Directive 06.05.104 III.V. (January 1, 2001). The outer limits of the Board's discretion to set subsequent hearings are well within the time limits approved in Morales and Garner.
Because the Parole Board retains discretion to set continuances at twelve-month intervals, just as it did when the petitioner was sentenced, the change in the policy directive did not by its own terms entail a significant risk of increasing the petitioner's punishment. Given the fact that the petitioner violated the conditions of parole, the Board did not increase the risk of petitioner serving a longer time when it decided that its parole review should be exercised after an eighteen-month interval. The petitioner simply has not shown that the amended policy directive as applied to his own sentence created a significant risk of prolonging his incarceration. Therefore, the change in the interval between parole considerations did not violate petitioner's rights under the Ex Post Facto Clause.
III.
The petitioner's challenge to his 1983 convictions is time-barred under 28 U.S.C. § 2244(d), and his remaining claims lack merit.
Accordingly, it is ORDERED that respondent's motion to dismiss [dkt #46] is GRANTED.
It is further ORDERED that the petitioner's habeas petition is DENIED.
It is further ORDERED that petitioner's motions for appointment of counsel [dkt #44] and oral argument [dkt #55] are DENIED.