Opinion
No. 02-CV-72296-DT
March 18, 2003
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR APPOINTMENT OF COUNSEL
Petitioner Charles William Smith, a state prisoner currently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. For the reasons set forth below, the court dismisses the petition for writ of habeas corpus for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d).
I. Procedural History
On March 8, 1991, and June 25, 1991, Petitioner was convicted after jury trials in the Lenawee County Circuit Court of charges of Larceny in excess of $100, M.C.L. § 750.356; Larceny from a Building, M.C.L. § 750.360; and Receiving and Concealing Stolen Property in Excess of $100, M.C.L. § 750.535. On August 9, 1991, Petitioner was sentenced as a sixth felony habitual offender to concurrent sentences of five to twenty years and ten to fifteen years for these crimes.
Petitioner filed a claim of appeal in the Michigan Court of Appeals which affirmed his convictions and sentences. People v. Charles William Smith, Mich. Ct. App. No. 145283 (May 12, 1994). The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Charles William Smith, 447 Mich. 1045, 527 N.W.2d 521, Mich. Sup.Ct. No. 100127 (December 28, 1994).
There is no indication that Petitioner sought a writ of certiorari in the United States Supreme Court. For purposes of a collateral attack, a conviction becomes final at the conclusion of direct review. See Johnson v. United States, 246 F.3d 655, 2001 WL 369844 (6th Cir. April 16, 2001) (citing United States v. Torres, 211 F.3d 836, 839 (4th Cir. 2000)). Direct review for a prisoner who files a petition for certiorari with the United States Supreme Court concludes when the Court either denies the petition or decides the case on the merits. Id. Petitioner did not file a petition for certiorari with the United States Supreme Court on direct review of his convictions. Consequently, Petitioner's direct appeal and his convictions and sentences were final on March 28, 1995, when the ninety day period for seeking a writ of certiorari in the Supreme Court expired. See Rule 13(1), Supreme Court Rules.
Petitioner has never filed a motion for relief from judgment in state court, or any other state collateral attack on his convictions and sentences.
On or about May 22, 2002, Petitioner filed the present petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan. On December 11, 2002, Respondent filed a motion to dismiss the petition as barred by the statute of limitations. Petitioner sought and was granted an extension of time within which to reply to Respondent's motion to dismiss the petition. On February 3, 2003, Petitioner filed his reply.
In his response to the motion to dismiss, Petitioner acknowledges that he has filed his habeas petition after the statute of limitations would have expired, if it was not tolled. Petitioner then asserts that his initial ignorance of the habeas corpus statute of limitations and various problems he has experienced over the years following his convictions with his physical health and with prison authorities should excuse the delay in his habeas filing. Petitioner also contends that he is actually innocent of the crimes challenged in the present petition, and that, therefore, he is entitled to equitable tolling of the limitations period.
For the reasons set forth below, this Court concludes that the petition is barred by the statute of limitations.
II. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA governs the filing date for this action because Petitioner filed his petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Among other things, 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, 872 (E.D. Mich. 1999). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244(d)(1)(A). The revised statute provides:
(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 postconviction 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.28 U.S.C. § 2244(d).
Petitioner's convictions became final before the AEDPA's April 24, 1996 effective date. Habeas corpus petitioners, whose state convictions were concluded by direct review prior to the effective date of the AEDPA, are afforded a one-year grace period, until April 24, 1997, in which to file a § 2254 petition. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999), cert. denied, 530 U.S. 1210, 120 S.Ct. 2211, 147 L.Ed.2d 244 (2000). This one-year grace period is tolled by any time spent pursuing properly filed state post-conviction or other state collateral review proceedings. Id. However, in the present case, Petitioner never filed for any state post-conviction relief or other state collateral review.
Petitioner's habeas corpus petition was not signed until May 22, 2002, see Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), overfive years beyond the one-year grace period for filing such a petition.
The AEDPA's limitations period is only statutorily tolled while a prisoner has a properly filed post-conviction motion under consideration. See 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir. 2000); Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999). Petitioner never sought post-conviction relief. Petitioner does not assert that his claims are based upon newly-created rights. Nor has he shown that his claims are based on newly-discovered facts. Therefore, Petitioner's habeas petition is thus barred by the statute of limitations set forth in 28 U.S.C. § 2244(d), unless he is entitled to equitable tolling of the limitations period.
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-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test 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.
In the present case, petitioner has failed to offer satisfactory reasons that would support the equitable tolling of the limitations period.
The Sixth Circuit has 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 Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
Petitioner first asserts that the statute of limitations should not bar his petition because he was not aware of the habeas corpus statute of limitations until after the April 24, 1997, one year grace period had passed.
Petitioner has not satisfactorily explained why he did not take action sometime in, perhaps, 1995 or early 1996, before the passage of the AEDPA, to timely file his habeas petition. Nor has he satisfactorily explained why he did not file his petition until long after April 24, 1997.
Petitioner does allege lack of actual or constructive notice of the habeas corpus statute of limitations. He does not allege reasonableness in remaining ignorant of the legal requirements for filing his claim, however. There is no limiting principle to Petitioner's argument that simple ignorance — absent any showing of diligence on his part or allegations of impediments to his becoming informed about his case — should provide a basis for equitable tolling. Holding that the statute of limitations should be extended in this manner would allow the statute to be extended indefinitely.
A habeas petitioner is not entitled to equitable tolling of the statute of limitations due to a lack of academic and legal education. Turner v. Smith, 70 F. Supp.2d 785, 787 (E.D.Mich. 1999). Ignorance of the law alone is not sufficient to invoke the doctrine of equitable tolling either. Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D.Mich. 1998). Therefore, the fact that Petitioner lacked the legal sophistication to pursue his claims is not an extraordinary circumstance that would equitably toll the statute of limitations. Hood v. Galaza, 47 F. Supp.2d 1144, 1148 (S.D.Cal. 1999). In addition, claims that a petitioner did not have professional legal assistance are also not an extraordinary circumstance which would toll the statute of limitations. Henderson v. Johnson, 1 F. Supp.2d 650, 656 (N.D.Tex. 1998); see also Holloway v. Jones, 166 F. Supp.2d 1185, 1189 (E.D.Mich. 2001); Bilodeau v. Angelone, 39 F. Supp.2d 652, 659 n. 1 (E.D.Va. 1999).
Petitioner contends that "prison administrative problems" related to confusion caused by assignment of a similar prisoner identification number to another prisoner whose last name was also Smith impeded his ability to litigate his case. However, Petitioner does not indicate the dates during which prison administrative problems allegedly impeded his ability to pursue his rights. Further, Petitioner has submitted as exhibits over thirty-five copies of replies to letters he was able to mail requesting legal advice and assistance dated from 1991 through 2003. Throughout this period, Petitioner sent requests — often multiple requests — for legal assistance to Prison Legal Services, Inc.; the Michigan Assigned Appellate Counsel System, the Michigan Appellate Defender Lansing Office, many private attorneys, the American Civil Liberties Union, the Innocence Project, the Notre Dame Law School, the Ohio State University Law School, and others. While Petitioner was unable to obtain the assistance he requested, not a single one of the replies to his letters indicates that the recipient was unable to understand what Petitioner was requesting. Moreover, the fact that Petitioner received replies shows that he was able to both send and receive legal mail throughout this period. This indicates that Petitioner could have filed his habeas corpus petition during the period before April 24, 1997, or at least, well before over five years after the limitations period expired. Therefore, for the reasons stated above, this Court concludes that whatever prison administrative problems Petitioner may have experienced do not entitle him to equitable tolling of the statute of limitations.
Petitioner also contends that health problems, mainly those associated with high blood pressure, impeded his physical and mental ability to timely file his habeas petition.
The general federal rule is that a statute of limitation is tolled by reason of mental illness "only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them." Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (internal citations omitted). This Court believes that a similar rule would apply to physical illnesses such as high blood pressure. A habeas petitioner must allege more than the "mere existence of physical or mental ailments" to invoke the equitable tolling of AEDPA's statute of limitations. Rhodes v. Senkowski, 82 F. Supp.2d 160, 173 (S.D.N.Y. 2000). The petitioner has the burden of showing that mental and/or physical health problems rendered him unable to file a habeas petition during the one-year limitations period. Ibid. Conclusory allegations of physical or mental illness are insufficient to justify equitable tolling of the statute. Torres v. Miller, 1999 WL 714349, (S.D.N.Y. Aug. 27, 1999). See also, Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (equitable tolling of the habeas statute only permitted "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time").
As noted above, whatever health problems Petitioner may have experienced did not prevent him from corresponding with a plethora of potential sources of legal assistance. Nor has Petitioner submitted any evidence or exhibits indicating that his health problems were so severe that they rendered completely incapacitated. While this Court sympathizes with Petitioner's health problems, there is no indication that they were so severe as to prevent him from timely filing his habeas petition, as they did not prevent him from writing dozens and dozens of coherent letters to potential sources of legal assistance. This Court is not persuaded, therefore, that whatever health problems Petitioner had rendered him unable to file his habeas petition during the one-year limitations period.
Because Petitioner has failed to allege any extraordinary circumstances that made it impossible for him to file his habeas petition on time, the Court is satisfied that he is not entitled to equitable tolling of the limitations period on this basis.
"[D]iligence in pursuing one's rights" is one of the factors "to consider when determining the appropriateness of equitable tolling." Dunlap v. United States, 250 F.3d at 1008. Upon review of the procedural history of Petitioner's case, this Court concludes that Petitioner has failed to show that he was sufficiently diligent in pursuing his rights to be entitled to equitable tolling of the statute of limitations.
Petitioner seeks to have the court find that the limitations period should be tolled for over five years. Yet, Petitioner has offered no satisfactory explanation for the many years of failure on his part to file his habeas corpus petition. Petitioner's convictions and sentences became final on March 28, 1995. Petitioner could have filed his habeas corpus petition in the over one year before the AEDPA was passed on April 24, 1996, or in the following year until April 24, 1997. Petitioner has not shown this his failure to do so occurred despite reasonable diligence on his part.
Petitioner's lack of reasonable diligence in the years after his convictions and sentences became final disqualifies him from receiving the benefit of equitable tolling. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence."); Johnson v. Nyack Hosp., 86 f.3d 8, 12 (2d Cir. 1996) ("Equitable tolling requires a party to pass with reasonable diligence through the period it seeks to have tolled.").
No actual innocence exception to § 2244(d)(1) exists in the language of the statute itself, and the United States Court of Appeals for the Sixth Circuit has yet to endorse an actual innocence exception. See Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). However, this court is aware that another judge in this district recently held that an actual innocence exception exists that would toll the one year limitations period contained in § 2244(d)(1). See Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D.Mich. 2001) (Tarnow, J). The judge in that case concluded that the petitioner had failed to establish his actual innocence to the crime charged, when the petitioner presented no new, reliable evidence to establish that he was actually innocent of the crimes charged. Id. at 1191.
In the procedural default context, a petitioner may obtain habeas review of an otherwise defaulted claim if he can demonstrate that this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . ." Murray v. Carrier, 477 U.S. 478, 496 (1986). There is no reason to believe that the requirements of an actual innocence exception to the statute of limitations would be substantially different. To invoke the rare actual innocence exception, a petitioner may argue that he is actually innocent of the offense or that he is actually innocent of the death penalty. Under Murray v. Carrier, a petitioner arguing that he is actually innocent of the offense must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. In Schlup v. Delo, 513 U.S.298 (1995), the United States Supreme Court clarified that standard. "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. The United States Supreme Court has also held that "actual innocence," within the meaning of the fundamental miscarriage of justice exception, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. 851. Petitioner has made no such showing.
Petitioner contends that "new evidence" shows that he is actually innocent. However, Petitioner has not cited any actual new evidence. Instead, Petitioner claims that analysis of various contemporaneous police reports, a prosecutorial witness list, preliminary examination testimony, a plea hearing transcript, a pre-sentence report showing that his co-defendant and wife Mrs. Smith was a cocaine addict, an Ohio docket showing that Mrs. Smith was convicted of the same crime there, charging documents regarding Mrs. Smith, and evidence showing that a similar crime resulted in the prosecution of another male co-defendant and Mrs. Smith shows that he is innocent. However, none of these items are new evidence, much less new, reliable evidence of innocence.
In the absence of reliable new evidence of innocence, Petitioner's re-argument of the trial evidence cannot be considered by this Court in determining whether an actual innocence exception exists in Petitioner's case for purposes of tolling the statute of limitations period. Holloway, 166 F. Supp.2d at 1191; Grayson v. Grayson, 185 F. Supp.2d at 750; Smith v. Stegall, 141 F. Supp.2d at 782-783; Alexander v. Keane, 991 F. Supp. 329, 340 (S.D.N.Y. 1998). Accordingly, petitioner is not entitled to the tolling of the limitations period under an actual innocence exception.
Additionally, even where actual innocence may be grounds for equitable tolling of the limitations period, prisoners must diligently pursue their claims to avail themselves of equitable tolling on such a basis. See Green v. Smith, 2000 WL 1279165, *4 (E.D. Mich. Aug. 15, 2000); see also McLaughlin v. Moore, 152 F. Supp.2d 123, 136 (D. N.H. 2001) (petitioner not entitled to equitable tolling under an actual innocence exception when he waited more than one year before passage of the AEDPA and five years after the AEDPA's grace period had expired to present his federal claims). Petitioner has not shown diligence in seeking habeas relief given that he filed his habeas petition in 2002, over five years after the statute of limitations expired. Petitioner is thus not entitled to equitable tolling of the limitations period. See Dunlap, 250 F.3d at 1010; Jones v. Gundy, 100 F. Supp.2d 485, 488 (W.D. Mich. 2000).
Petitioner has not presented any new reliable, credible innocence of his actual innocence, or exercised reasonable diligence in asserting his rights and seeking habeas relief. Therefore, for the reasons set forth above, this court concludes that Petitioner has failed to establish his actual innocence to the crime charged sufficient to entitle him to equitable tolling of the statute of limitations under any actual innocence exception.
III. Conclusion
The Court determines that the current habeas petition is barred by the AEDPA's one year statute of limitations contained in § 2244(d)(1). Petitioner's convictions became final before the effective date of the AEDPA. Petitioner's claims are not based on newly discovered evidence, or on a retroactive change in the law. Therefore, unless the statute of limitations was tolled, Petitioner had until April 24, 1997, to file his habeas petition. The petition was filed on May 22, 2002, over five years after the limitations period expired.
Petitioner is not entitled to statutory tolling because he never sought postconviction relief in the state courts. Petitioner is not entitled to equitable tolling because (1) he did not diligently pursue his rights in state court and (2) he has not presented any new reliable evidence that he is actually innocent. Therefore, the Court will summarily dismiss the current petition for failure to comply with the statute of limitations.
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.