Opinion
Case No. 01-10224-BC
April 1, 2003
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DISMISSING PETITION AS UNTIMELY FILED
The petitioner, Michael C. Parker, presently confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, filed a pro se application for a writ of habeas corpus on May 21, 2001.
The respondent has filed a motion for summary judgment, contending that the petitioner failed to comply with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). The petitioner filed a response to the motion. The Court has accounted for all the time during which the petitioner's post-conviction motions were pending in state court, and concludes that the petition was filed out of time in this Court. Furthermore, the late petition cannot be saved by the doctrine of equitable tolling. The Court, therefore, will grant the respondent's motion and dismiss the petition.
I.
The petitioner was convicted of first-degree felony murder by a Detroit, Michigan Recorder's Court jury on May 30, 1990 and was sentenced to life imprisonment without parole on June 10, 1990.
The petitioner's direct appeals concluded in the Michigan courts on February 26, 1993 when the Michigan Supreme Court denied his application for leave to appeal after the Michigan Court of Appeals had affirmed his conviction. People v. Parker, 442 Mich. 857, 498 N.W.2d 743 (1993).
On September 7, 1993, the petitioner filed a post-conviction motion for relief from judgment with the Detroit Recorder's Court, which was perfunctorily denied. People v. Parker, No. 89-13474 (Detroit Recorder's Court, April 11, 1994). On appeal from that decision, the Michigan Court of Appeals remanded the matter to the trial court to state reasons for denying the petitioner's motion for relief from judgment. People v. Parker, No. 175353 (Mich.Ct.App. August 17, 1994). The Michigan Court of Appeals subsequently vacated the trial court's order denying the motion for relief from judgment because of the death of the trial judge and ordered any successor judge to state reasons for its decision when deciding the motion for relief from judgment. Id. (March 16, 1995).
On or about December 16, 1996, Neal Bush was appointed by Judge John H. Gillis, Jr., the successor judge in this case, to represent the petitioner in his post-conviction motion for relief from judgment. The petitioner's attorney suffered a stroke, which resulted in a number of adjournments of the petitioner's case.
Oral arguments were finally conducted on the petitioner's motion for relief from judgment on November 20, 1997, and the trial court then denied the motion. People v. Parker, 89-13474 (Wayne County Circuit Court, November 20, 1997). The petitioner claims that after the trial court denied his motion for relief from judgment, his attorney failed to acknowledge any letters from him concerning the petitioner's request to file an appeal and refused to provide the petitioner with the pertinent documents needed to file the appeal. Because the petitioner's attorney would not respond to his request to file an appeal, the petitioner was forced to file a pro se brief with the Michigan Court of Appeals. Prior to filing his application for leave to appeal, the petitioner filed a motion with the presiding judge of the Criminal Division of the Wayne County Circuit Court, in which he requested a copy of the transcript of the hearing on his post-conviction motion. The motion was denied based on the presiding judge's erroneous belief that no hearing had been conducted. People v. Parker, 89-13474 (Wayne County Circuit Court, Criminal Division, June 5, 1998). The Michigan Court of Appeals dismissed the petitioner's application for leave to appeal without prejudice, because of his failure to conform to the court rules. People v. Parker, No. 209825 (Mich.Ct.App. August 12, 1998).
In 1996, the Michigan Legislature abolished the Detroit Recorder's 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).
The petitioner contends that the defect referenced by the court of appeals was his failure to provide the that court with a copy of the transcript from the hearing on his motion for relief from judgment. The petitioner claims he did not do so because he had erroneously been informed by the Wayne County Circuit Court that no such transcript existed. On May 25, 1999, the Michigan Supreme Court denied the petitioner leave to appeal. People v. Parker, 459 Mich. 997, 595 N.W.2d 851 (1999).
Prior to the Michigan Supreme Court denying the petitioner leave to appeal, Rose Mary C. Robinson was appointed by Wayne County Circuit Judge Vera Massey Jones to act as replacement counsel for the petitioner. Robinson had been informed by the Michigan Supreme Court clerk that she could file supplemental pleadings on the petitioner's behalf with that court, but the Michigan Supreme Court denied the petitioner leave to appeal before she could file those papers. On June 23, 1999, Ms. Robinson sent a letter to Ms.
Colleen Martin, the deputy clerk of the Wayne County Circuit Court, in which she sought an amended order for the petitioner to have legal representation in the Michigan Court of Appeals. In this letter, Ms. Robinson also requested on the petitioner's behalf a copy of the transcript from the November 20, 1997 hearing before Judge Gillis on the motion for relief from judgment. Ms.
Robinson sent a second letter on June 27, 1999 to the deputy clerk, in which she again requested the appointment of counsel to represent the petitioner on appeal.
On September 2, 1999, Wayne County Circuit Judge Michael F. Sapala issued an order appointing Carl Ziemba to be the petitioner's appellate counsel, despite the fact that no proceedings regarding the petitioner were then pending in any Michigan court. The order was made on a state court form that also served as a Claim of Appeal, see Mich. Ct. R. 6.425(F)(3), although the petitioner had completed his one direct appeal to which he was entitled.
Recognizing this error, on October 20, 1999, the Michigan Court of Appeals dismissed the claim of appeal for lack of jurisdiction because the petitioner had already received one appeal of right.
The Michigan Court of Appeals further concluded that if the petitioner had intended to obtain appointed counsel to challenge the November 20, 1997 order denying his motion for relief from judgment, the Michigan Court of Appeals would still lack jurisdiction over his appeal because a criminal defendant in Michigan could only challenge the denial of a motion for relief from judgment by filing an application for leave to appeal under Michigan Court Rule 7.205. However, since twelve months had already elapsed after the entry of the order in question, the Michigan Court of Appeals lacked jurisdiction to hear the matter. People v. Parker, No. 222020 (Mich.Ct.App. October 20, 1999).
On August 22, 2000, the Michigan Supreme Court once again denied leave to appeal. People v. Parker, 463 Mich. 861, 617 N.W.2d 337 (2000).
On or about March 6, 2001, the petitioner filed a second motion for relief from judgment, which was denied pursuant to Michigan Court Rule 6.502(G) on the grounds that it was a successive motion for relief from judgment. People v. Parker, 89-013474 (Wayne County Circuit Court, Criminal Division, March 14, 2001). The petitioner then signed and dated the petition now before the Court on May 21, 2001.
II.
The respondent mistakenly contends that the one-year statute of limitations began to run on August 25, 1999, following the 90-day period within which the petitioner could have sought a writ of certiorari from the United States Supreme Court following the Michigan Supreme Court's May 25, 1999 declination to review the state post-conviction proceedings. The petitioner responds that the statute of limitations did not begin to run until the state trial court denied his successive motion for relief from judgment on March 14, 2001, thereby rendering his May 21, 2001 filing timely.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996, and governs the filing date for the habeas application in this case because petitioner filed his petition after the effective date of the Act. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 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, 873 (E.D.Mich. 1999). The one year statute of limitations runs 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 habeas petition filed outside the time period prescribed by this section must be dismissed. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001) (case filed thirteen days after the limitations period expired dismissed for failure to comply); Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D.Mich. 1998).
Although prisoners whose direct appeals concluded prior to the AEDPA's effective date have a one-year grace period to file their habeas petitions, see Brown v. O'Dea, 187 F.3d 572, 576-577 (6th Cir. 1999), when the "finality date" of the conviction occurs after the effective date of the AEDPA, the commencement of the one-year filing period is measured by the criteria set forth in § 2244(d)(1)(A)-(D). A Michigan prisoner's conviction becomes "final" ninety days after the Michigan Supreme Court renders its decision denying leave to appeal on direct appeal, accounting for the period within which the defendant may apply to the United States Supreme Court for a writ of certiorari. If a certiorari petition is actually filed, then the conclusion of Supreme Court proceedings establishes the finality date under § 2244(d)(1). 28 U.S.C. § 2244(d)(1)(A); Sup.Ct. R. 13(1); Allen v. Hardy, 478 U.S. 255, 258 n. 1 (1986); see Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
In the present case, the Michigan Supreme Court denied leave to appeal on the petitioner's direct appeal on February 26, 1993, and the petitioner did not file a petition for certiorari in the United States Supreme Court. Thus, his conviction became final on May 27, 1993. See Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D. Mich. 1998). Because this date preceded the April 24, 1996 enactment date of the AEDPA, the petitioner had one year from that date to timely file a petition for habeas relief in federal court. Porter v. Smith, 126 F. Supp.2d 1073, 1074-1075 (E.D.Mich. 2001).
Title 28, Section 2244(d)(2) of the United States Code expressly provides that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward the period of limitations contained in the statute. Corbin v. Straub, 156 F. Supp.2d 833, 836 (E.D. Mich. 2001). In this case, the petitioner's post-conviction odyssey began with his motion for relief from judgment filed on September 7, 1993 and did not end until the Michigan Supreme Court denied the petitioner leave to appeal on May 25, 1999. Although the respondent would generously allow the petitioner an additional ninety days of tolling, he plainly is not entitled to it. See Isham, 226 F.3d at 694-695 (ninety-day period for applying to the United States Supreme Court for certiorari does not extend the period of tolling under 28 U.S.C. § 2244(d)(2)).
The petitioner suggests that state proceedings which followed the May 25, 1999 denial of leave to appeal may extend the tolling period. However, although Judge Sapala mistakenly filed a "Claim of Appeal" for the petitioner, even the most generous construction of that state court form cannot transform it into a "properly filed application for State post-conviction or other collateral review" within the meaning of Section 2244(d)(2). It is true that an application is "properly filed" if its "delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). However, in this Circuit there is an additional requirement: "a state post-conviction petition which is otherwise properly filed must, to toll the AEDPA statute of limitations under § 2244(d)(2), raise a federal constitutional issue." Austin v. Mitchell, 200 F.3d 391, 394 (6th Cir. 1999). The "Claim of Appeal" filed on September 2, 1999 contained no issues whatsoever. It was merely a spurious filing made in error over three months following the conclusion of the petitioner's collateral review proceedings.
Nor did the second post conviction motion filed on March 6, 2001 have any effect on the expiration of Section 2244(d)'s period of limitation. The petitioner had one year following May 25, 1999 to file his habeas petition in federal court. That time limit had expired well before the second post-conviction motion had been filed. Although the filing of a post-conviction motion stops the statute of limitations clock when there is still time left on it, denial of that motion does not cause the clock to be reset or add any time to it once it has wound down to zero. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).
The petitioner does not assert that the State created an impediment to filing his habeas petition or that his claims are based upon newly-created rights or newly-discovered facts. His habeas petition is thus barred by the statute of limitations set forth in 28 U.S.C. § 2244(d).
The United States Court of Appeals for the Sixth Circuit has determined that the one-year limitations period is subject to equitable tolling. In Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-factor analysis set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The factors which the Court is to consider are:
(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, 250 F.3d at 1008.
The petitioner here has not claimed ignorance of the one-year filing requirement for habeas petitions. Although there may have been some confusion generated by Judge Sapala's use of a claim of appeal form in appointing post-conviction counsel for the petitioner, that issue was cleared up by the state court of appeal's order entered on October 20, 1999, well within the year following the conclusion of the post-conviction proceedings. Even when the dismissal of the claim of appeal was finalized by the Michigan Supreme Court, the petitioner waited over six months before filing a second post-conviction motion in the state system.
The fact that the petitioner is untrained in the law, may have been proceeding without a lawyer, or may have been unaware of the statute of limitations does not warrant tolling. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (holding that "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse [late] filing"); Holloway v. Jones, 166 F. Supp.2d 1185, 1189 (E.D.Mich. 2001) (lack of professional legal assistance does not justify tolling). Considering all of the factors, the Court is not persuaded that it is appropriate to apply equitable tolling to excuse the petitioner's late filing of his petition.
III.
The Court concludes that the petition for a writ of habeas corpus was not filed in this case within the time permitted by 28 U.S.C. § 2244(d).
Accordingly, it is ORDERED the respondent's motion for summary judgment [dkt #7] is GRANTED.
It is further ORDERED that the petition for writ of habeas corpus is DISMISSED.