Opinion
Case No. 02-10322-BC
March 16, 2004
OPINION AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT AND REQUIRING RESPONDENT TO ANSWER PETITION
The petitioner, Alvin Smith, presently confined at the Macomb Correctional Facility in New Haven, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he attacks his state court convictions for first-degree murder and possession of a firearm during the commission of a felony (felony firearm). The respondent has filed a motion to dismiss and for summary judgment contending that the petition is barred by the statute of limitations contained in 28 U.S.C. § 2244(d)(1). The petitioner did not file an answer to the motion. The Court concludes that the petition was not filed out of time in this Court and, therefore, will deny the respondent's motion and require an answer to the habeas petition.
I.
Following a bench trial in May 1996, the petitioner was convicted of premeditated murder, Mich. Comp. Law § 750.316(a), and felony firearm, Mich. Comp. Laws § 50.227b. On May 31, 1996, the trial court sentenced the petitioner to two years in prison for the felony firearm conviction, followed by life imprisonment for the murder conviction. The petitioner raised three claims in an appeal of right. The Michigan Court of Appeals affirmed the petitioner's convictions in an unpublished, per curiam opinion, see People v. Smith, No. 196894 (Mich.Ct.App. March 13, 1998), and on December 30, 1998, the Michigan Supreme Court denied leave to appeal. See People v. Smith, 459 Mich. 934, 615 N.W.2d 737 (1998).
On September 23, 1999, the petitioner filed a motion for relief from judgment in which he raised three new claims. The trial court denied the motion on November 1, 1999, and on December 13, 1999 the court denied the petitioner's motion for reconsideration.
The petitioner filed his first federal habeas corpus petition on January 7, 2000. He raised at least two of the issues that he had presented to the state courts on direct review of his convictions, as well as the three claims that he had presented to the trial court in his motion for relief from judgment. He sought a stay of the federal court proceedings on the ground that he was in the process of preparing an appeal from the trial court's denial of his motion for relief from judgment.
The Court referred the habeas petition to the magistrate judge, who recommended that the petitioner's motion for a stay be denied and that the habeas petition be dismissed without prejudice because the petitioner had not exhausted state remedies for all his claims. The petitioner filed two motions for extension of time to file objections, both of which were granted, the petitioner ultimately having been ordered to tender objections by April 19, 2002. No objections were ever filed. On May 13, 2002, the Court directed the petitioner either to file an amended petition or show cause in writing on or before June 14, 2002 why his petition should not be dismissed without prejudice. Again, no response was filed. Deeming the petitioner to have waived his right to object to the report and recommendation, the Court summarily adopted the report on July 13, 2002 and dismissed the petition without prejudice.
On October 8, 2002, the petitioner filed a reply to the show cause order, asserting that he had "now just obtained help in the form of a para-legal at Bellamy Creek Correctional Facility," that he had been "totally unaware" of the time frame for responding to the show cause order, and that legal assistance he had previously obtained was incorrect. He sought another chance to respond to the Court's inquiries due to his alleged ignorance of the law, and sought to file an amended petition with only exhausted claims.
On October 30, 2002, the Court denied the petitioner's request, finding that an extension of time could not be granted as there was nothing for which to grant an extension, since the Court had already dismissed the petition without prejudice and closed the case. The Court also found that the petitioner's actions did not make him eligible for relief pursuant to Federal Rule of Civil Procedure 60(b)(1). The Court, therefore, found that the petitioner was not entitled to relief from the order of dismissal in this case. The Court stated at the conclusion of its ruling that the petitioner's only alternative was to file a new petition in a new case containing only the exhausted claims.
On December 12, 2002, the Clerk of Court received the petitioner's second habeas corpus petition. The grounds for relief read as follows:
1. Mr. Smith was denied his federal constitutional right of confrontation by the admission, over objection, of a large amount of damaging hearsay testimony.
2. Defendant's first[-]degree murder conviction must be reversed because it is based upon factual finding[s] which are not supported by the records; in the alternative, this case should be remanded for additional finding[s] of fact.
3. Mr. Smith was denied a fair trial when the trial court permitted a lay witness to offer opinion testimony going to an ultimate issue in the case.
State remedies for these claims were exhausted on direct review of the petitioner's convictions.
II.
The respondent has filed a motion to dismiss and for summary judgment urging the Court to dismiss the habeas petition on the ground that it is barred from review by the statute of limitations.
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. See Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003). 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); Wilson v. Birkett, 192 F. Supp.2d 763, 765 (E.D. Mich 2002).
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); Alien 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 petitioner's conviction became final on March 30, 1999 when the ninety-day deadline expired for seeking certiorari in the United States Supreme Court. Bronaugh, 235 F.3d at 283 (citing Isham, 226 F.3d at 694-95). The period of limitations began to run on the following day, Fed.R.Civ.P. 6(a); Bronaugh, 235 F.3d at 285, and it stopped running 177 days later on September 23, 1999 when the petitioner filed his motion for relief from judgment in the trial court. See 28 U.S.C. § 2244(d)(2) (providing that "[t]he 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").
The limitations period was tolled until the petitioner's post-conviction motion "achieved final resolution through the state's post-conviction procedures." Carey v. Saffold, 536 U.S. 214, 220 (2002). The trial court denied the petitioner's motion on November 1, 1999, and the petitioner had one year from that date to appeal the trial court's decision. See Mich. Ct. R. 7.509(A) (indicating that the twelve-month time limit provided by Mich. Ct. R. 7.205(F)(3) runs from the trial court's decision); see also People v. Sconious, 448 Mich. 643, 646, 532 N.W.2d 840, 841 (1995) (concluding that the one-year deadline for appealing the denial of a motion for relief from judgment runs from the order dismissing the motion on the merits, not the order denying a motion for reconsideration). Because the petitioner did not appeal the trial court's decision, the limitations period remained tolled until the time to appeal the decision expired on November 1, 2000. See Wheeler v. Jones, 226 F.3d 656, 659-60 (6th Cir. 2000), cert. denied, 532 U.S. 1068 (2001). The petitioner then had 188 days left to file a proper habeas petition.
In the meantime, the petitioner filed his first habeas corpus petition on January 7, 2000. Although the limitations period is not tolled while a habeas corpus petition is pending in federal court, Duncan v. Walker, 533 U.S. 167, 181 (2001), federal courts may, in appropriate circumstances, apply the doctrine of equitable tolling to the limitations period for a first habeas petition. Id. at 183 (Stevens, I, concurring); Griffin v. Rogers, 308 F.3d 647, 652 (6th Cir. 2002).
Although equitable tolling applies to the one-year period of limitation for habeas corpus petitions, Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir.), cert. denied, 534 U.S. 1057 (2001), "federal courts sparingly bestow equitable tolling. Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000) (citations omitted). Courts must consider the five factors set forth in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988), when determining whether equitable tolling is appropriate. Dunlap, 250 F.3d at 1009. These factors 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." Id. at 1008. This list of factors is not comprehensive; on the other hand, each factor may not be relevant in all cases. Cook, 295 F.3d at 521. "The decision whether to equitably toll a period of limitations must be decided on a case-by-case basis." Ibid.
In this case, the Court provided two extensions of time to respond to the report and recommendation on the first habeas petition and then provided the petitioner another opportunity to save his petition with a show cause order. All three orders clearly set forth in bold print the proper deadline for response. None of the orders was returned to this Court as undeliverable, which indicates that they were received but ignored by the petitioner. Thus, the Court finds that the petition did not have a lack of notice or knowledge of the filing requirements for his first habeas petition. Moreover, the problem here was not poor legal advice, but rather a lack of diligence exercised by the petitioner.
Ordinarily, the Court would conclude that this is an inappropriate case for equitable tolling. However, the Court did instruct the petitioner in its October 30, 2002 order that even though his first habeas petition was dismissed, the petitioner did have the alternative to file a new petition in a new case containing only the exhausted claims. Although the second petition filed on December 12, 2002 is untimely, the petitioner reasonably could have inferred from this Court's order that the statute of limitations would be equitably tolled to allow him to file a new petition containing only exhausted claims. Consequently, the Court deems the period of limitations tolled for the entire time that the petitioner's first habeas corpus petition was pending before the Court.
On July 5, 2002, the Court dismissed the first habeas petition without prejudice. Until then, only 177 days had run on the period of limitations. The petitioner then had 188 days in which to return to state court to further exhaust state remedies or to submit an amended habeas corpus petition in federal court with only the exhausted claims. He chose to delete the unexhausted claims and to submit an amended habeas petition with only the exhausted claims. The amended petition was received by the Clerk of Court on December 12, 2002, which was 133 days after the Court dismissed the first habeas petition.
III.
Allowing for equitable tolling, the period of limitations ran a total of 310 days: 177 days before the limitations period was tolled by the filing of the petitioner's post-conviction motion in state court and his first habeas petition in this Court and 133 days from the dismissal of the first habeas petition to the filing of the second habeas petition. The Court concludes, therefore, that the pending habeas petition is not barred by the statute of limitations.
Accordingly, it is ORDERED the respondent's motion to dismiss and for summary judgment [dkt # 9] is DENIED.
It is further ORDERED that the respondent shall file an answer responding to the allegations contained in the habeas petition on or before May 17, 2004. The respondent need not file the transcript of trial or the state appellate court volumes because it appears that the necessary state court record was filed in Smith v. Bock, No. 00-CV-10009-BC, which is still on file in the Clerk's Office. The Clerk is directed to file those records under the case number for the present action.