Opinion
Case No. 02-CV-72788-DT
May 30, 2003
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Charles D. Webb, ("Petitioner"), presently incarcerated at the Muskegon Correctional Facility in Muskegon, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, Petitioner challenges his convictions for second-degree murder, and possession of a firearm in the commission of a felony. Respondent has filed a "Motion for Summary Disposition," contending that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). Petitioner has filed an objection to Respondent's motion. For the reasons stated below, Petitioner's application for a writ of habeas corpus will be dismissed.
Mich. camp. Laws § 750.317; Mich. Stat. Ann. 28.549.
Mich. camp. Laws § 750.227b; Mich. Stat. Ann. 28.424(2).
I. BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the Detroit Recorder's Court. Petitioner's conviction was affirmed on direct appeal. People v. Webb, 175601 (Mich.Ct.App. March 22, 1996); lv. den. 454 Mich. 858, 558 N.W.2d 733 (1997); reconsideration denied 454 Mich. 858, 562 N.W.2d 204 (1997)
Petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., with the Wayne County Circuit Court on December 17, 1999, which was denied. People v. Webb, 93-09334 (Wayne County Circuit Court, February 29, 2000). Petitioner's application for leave to appeal to the Michigan Court of Appeals was also denied. People v. Webb, 228800 (Mich.Ct.App. March 28, 2001). The Michigan Supreme Court denied leave to appeal on September 25, 2001. People v. Webb, 465 Mich. 881, 636 N.W.2d 136 (2001). The instant petition was signed and dated June 18, 2002.
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).
Under the prison mailbox rule, the court will assume that petitioner actually filed his habeas petition on June 18, 2002, the date that it was signed and dated. See Neal v. Bock, 137 F. Supp.2d 879, 882, fn. 1 (E.D. Mich. 2001)
On July 12, 2002, Magistrate Judge Paul J. Komives issued Petitioner an order to show cause why his petition should not be dismissed for failure to comply with the statute of limitations for filing a petition for writ of habeas corpus. On July 14, 2002, Petitioner filed an answer to the order to show cause. After the court reviewed Petitioner's answer to the order to show cause, Respondent was ordered to file a response to the application for writ of habeas corpus. On February 26, 2003, Respondent filed the "Motion for Summary Disposition." On March 14, 2003, Petitioner filed an objection to the motion.
II. DISCUSSION
The petition for writ of habeas corpus must be dismissed because it has not been filed within the one year statute of limitations. The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which was signed into law on April 24, 1996, amended the habeas corpus statute in several respects, one of which was to mandate a statute of limitations for habeas actions. 28 U.S.C. § 2244 (d) imposes a one-year statute of limitations upon petitions for habeas relief:
(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 originally 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.
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. Wilson v. Birkett, 192 F. Supp.2d 763, 765 (E.D. Mich 2002).
Petitioner's direct appeal in the state courts ended on March 28, 1997, when the Michigan Supreme Court denied Petitioner's motion for reconsideration of the denial of his application for leave to appeal. Where a state prisoner has sought direct review of his or her conviction in the state's highest court but does not file a petition for certiorari with the United States Supreme Court, the one year limitation period for seeking habeas review under 28 U.S.C. § 2244 (d)(1) begins to run not on the date that the state court entered judgment against the prisoner, but on the date that the 90 day time period for seeking certiorari with the United States Supreme Court expired. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Petitioner did not file a petition for writ of certiorari in the United States Supreme Court after his motion for reconsideration was denied by the Michigan Supreme Court. Petitioner's judgment therefore became final, for the purpose of § 2244(d)(1), on June 26, 1997, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Grayson v. Grayson, 185 F. Supp.2d 747, 750 (E.D. Mich. 2002). Petitioner therefore had one year from June 26, 1997 to timely file a petition for writ of habeas corpus with this Court, unless the one year limitation period was somehow tolled.
In the present case, Petitioner filed a post-conviction motion for relief from judgment on December 17, 1999. Although 28 U.S.C. § 2244 (d)(2) expressly provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute, See Corbin v. Straub, 156 F. Supp.2d 833, 836 (E.D. Mich. 2001), a state court post-conviction motion that is filed following the expiration of the limitations period for seeking federal habeas relief cannot toll that period because there is no period remaining to be tolled. Smith v. Stegall, 141 F. Supp.2d 779, 782-783 (E.D. Mich. 2001). If the one year limitations period has already expired, filing a motion for state post-conviction relief will not add new time to the limitations period. Id. Because the one year limitations period had already expired prior to the filing of the post-conviction motion for relief from judgment, the filing of this post-conviction motion did not toll any limitations period.
In his answer to the order to show cause and in his objection to the motion for summary disposition, Petitioner contends that his petition is not time-barred for several reasons. Petitioner first claims that he originally filed a motion for relief from judgment with the Detroit Reorder's Court on August 24, 1997 and contends that this motion was received by the Detroit Recorder's Court on August 26, 1997. In support of this claim, Petitioner has submitted a certified return receipt card that was addressed to Judge Wendy M. Baxter and the court clerk at the Frank Murphy Hall of Justice and which indicates a date of delivery of August 26, 1997. Petitioner claims that this return receipt was attached to the motion for relief from judgment which was purportedly sent on August 24, 1997. The docket entries from the Detroit Recorder's Court, however, do not indicate that any motion for relief from judgment was filed in Petitioner's case on or about August 26, 1997, showing instead only that a motion for relief from judgment was filed in Petitioner's case on December 18, 1999.
See Petitioner's Exhibit C, attached to the answer to the order to show cause.
Detroit Recorder's court file number 93-009334-01-FY, entry #1 of the Rule 5 materials.
In the absence of reliable evidence to the contrary, a federal district court should presume the accuracy of a court clerk's docket entries. Arnold v. Wood, 238 F.3d 992, 995 (8th Cir. 2001). In the Arnold case, the Eighth Circuit held that a postal service tracking receipt which showed delivery of an "item" to a city on a particular date did not overcome the presumption that a federal district court's docket accurately reflected the date on which a post-judgment motion was filed by the plaintiff, where the receipt did not indicate the clerk's address, nor did it clarify that the item delivered was the post-judgment motion. Id.
In this case, Petitioner's return receipt card does not overcome the presumption of accuracy which attaches to the Detroit Recorder's Court docket entries, because there is nothing on this return receipt which indicates that the item which was sent to Judge Baxter or the court clerk was, in fact, a motion for relief from judgment. Petitioner has not provided the court with a copy of the motion for relief from judgment which he allegedly sent to the Detroit Recorder's Court on August 24, 1997, nor has he provided any other documentation which would link this motion to the return receipt. Petitioner's evidence is therefore inadequate to establish that he, in fact, sent a motion for relief from judgment to the Detroit Recorder's Court on August 24, 1997 or that it was received by that court two days later.
The court notes that Petitioner did file a complaint for superintending control with the Michigan Court of Appeals on July 18, 1998, in which he asked the Michigan Court of Appeals to order the Detroit Recorder's Court to file and adjudicate his motion for relief from judgment. The Michigan Court of Appeals denied Petitioner's motion to waive fees, because the complaint for superintending control was a civil action for which prisoners are liable for the filing fees under Michigan law. The Michigan Court of Appeals gave Petitioner twenty one days to pay an initial partial filing fee of $47.00 and to resubmit his pleadings, which were being returned to him. The Michigan Court of Appeals further indicated that Petitioner's appeal would not be filed if he failed to comply with the order. Webb v. Recorder's Court Judge, 213265 (Mich, Ct. App. September 23, 1998). Petitioner never submitted a partial filing fee to the Michigan Court of Appeals and thus, his complaint for superintending control was never filed. Petitioner did not seek an application for leave to appeal this decision with the Michigan Supreme Court either.
See Affidavit from Corbin R. Davis, clerk of the Michigan Supreme Court.
Petitioner's complaint for superintending control would not toll the limitations period pursuant to § 2244(d)(2) for two reasons. First, Petitioner never paid the partial filing fee as required by the Michigan Court of Appeals. An application for state post-conviction relief is considered "properly filed", for purposes of § 2244(d)(2), when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings, e.g., requirements concerning the form of the document, the court and office in which it must be lodged, payment of a filing fee, and applicable time limits upon its delivery." Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). Because Petitioner never paid the filing fee for the complaint for superintending control, the complaint was not properly filed and would not toll the limitations period pursuant to § 2244(d)(2).
More importantly, Petitioner's complaint for superintending control would not qualify as an application for state post-conviction or collateral review, for the purpose of § 2244(d)(2), because the complaint did not actually attack Petitioner's conviction, but only sought an order to compel the trial court to file and adjudicate Petitioner's state post-conviction motion. In an identical case, the Fifth Circuit ruled that a habeas petitioner's application to the Louisiana Supreme Court for a writ of mandamus to require the state trial court to rule on the petitioner's state habeas petition was not an application for collateral review with respect to the petitioner's conviction, and therefore, the mandamus application did not toll the AEDPA's limitations period pursuant to § 2244(d)(2). Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002); reh. den. 51 Fed. Appx. 485 (5th Cir. 2002); cert. den. 123 S.Ct. 1360 (2003). The Fifth Circuit's rationale was that the application for a writ of mandamus did not challenge the petitioner's state court criminal judgment, but merely sought an order directing the trial court to perform its duty with respect to the petitioner's state habeas petition. Other courts have reached the same conclusion. See Hardiman v. Galaza, 58 Fed. Appx. 708, 710 (9th Cir. 2003) (petition for writ of mandamus is not an application for state post-conviction or other collateral review of the pertinent judgment within the meaning of § 2244(d)(2)). Therefore, Petitioner's complaint for superintending control did not toll the limitations period pursuant to § 2244(d)(2)
The question remains, however, whether Petitioner is entitled to the equitable tolling of the limitations period based upon his argument that his original motion for relief from judgment had been sent to the Detroit Recorder's Court but had somehow been misplaced. The one year limitations period under the AEDPA is considered a statute of limitations which is subject to equitable tolling, and is not a jurisdictional prerequisite which would bar review by the federal courts if not met. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001). In Dunlap, the Sixth Circuit adopted the test for equitable tolling set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) and indicated that five factors should be used to determine whether it would be appropriate to equitably toll the statute of limitations in a habeas case:
(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 Sixth Circuit also noted that the doctrine of equitable tolling should be used "sparingly," id. at 1008-1009, and "[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.
In the present case, Petitioner claims that after waiting a "reasonable time," he sent several letters to Judge Baxter to inquire about the status of his post-conviction motion, but has provided neither the copies of these letters nor the approximate dates with which they were sent. Petitioner attached to his complaint for superintending control an undated letter to Judge Robert L. Evans. In this letter, Petitioner claims that he sent a letter to the court in February of 1998 inquiring about the status of his post-conviction motion, but did not provide a copy of this letter to either the Michigan Court of Appeals or to this court. Petitioner has also attached a letter to him from the Michigan Supreme Court State Court Administrative Office (SCAO), dated June 24, 1999, which alludes to a previous correspondence that Petitioner had sent to the SCAO, but again, Petitioner has not provided the court with a copy of his letter to the SCAO, nor does the letter from the SCAO indicate the date that Petitioner wrote to them concerning his motion. Petitioner has also submitted a letter to him from the Wayne County Clerk's Office, dated August 23, 1999, which is in response to a letter that he sent the clerk's office on August 16, 1999. Again, Petitioner has not submitted a copy of the letter that he sent to the clerk's office to the court.
Petitioner is not entitled to equitable tolling of the limitations period for the time that he allegedly spent attempting to ascertain the status or location of his first motion for relief from judgment because other than his one undated letter to Judge Evans, all of Petitioner's other attempts to contact the Detroit Recorder's Court are unsubstantiated, because Petitioner has not provided this court with copies of the letters, the dates that they were sent, or any description of the contents of these letters. Drew v. Department of Corrections, 297 F.3d 1278, 1288 (11th Cir. 2002); reh. den. 52 Fed. Appx. 495 (11th Cir. 2002); cert. den. 123 S.Ct. 1364 (2003). More importantly, Petitioner is not entitled to equitable tolling because he does not allege that he took any steps other than writing letters to the Detroit Recorder's Court, such as calling that court by telephone or seeking assistance from relatives or friends who could have gone to the court personally to ascertain whether the motion had been filed. Id.
In addition, Petitioner does not explain why he waited over one year after the Michigan Court of Appeals dismissed his complaint for superintending control to re-file his motion for relief from judgment with the trial court. In Johnson v. McCaughtry, 265 F.3d 559, 565 (7th Cir. 2001), the Seventh Circuit held that a habeas petitioner was not entitled to equitable tolling based on the fact that the state courts had erred in dismissing his first two state post-conviction petitions on the basis that they had been filed in the improper forum, when the petitioner waited 107 days after the dismissal of the first state petition and 47 days after dismissal of the second petition to re-file essentially the same petition. The Seventh Circuit also determined that the petitioner was not entitled to equitable tolling on this basis, where the petitioner waited an additional two hundred and ten days after this third state post-conviction petition was resolved by the state courts to filed his petition for writ of habeas corpus with the federal court. Id.
In the present case, Petitioner does not offer any explanation why he waited over one year following the dismissal of his complaint for superintending control to simply re-file his motion for relief from judgment. More importantly, Petitioner offers no explanation why he waited almost nine months following the denial of his application for leave to appeal the denial of his post-conviction motion by the Michigan Supreme Court to file the instant petition with the court. Petitioner is not entitled to equitable tolling, because his nine month delay in filing his petition for writ of habeas corpus after the conclusion of his state post-conviction proceedings shows a lack of due diligence on his part. See Henry v. Randle, 23 Fed. Appx. 270, 271 (6th Cir. 2001)
Petitioner further argues that the statute of limitations should be tolled because of his actual innocence. The Sixth Circuit has stated that "[n]o actual innocence exception to § 2244(d)(1) exists in the language of the statute itself, and this Circuit has yet to endorse an actual innocence exception." Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). The Fifth Circuit has explicitly rejected an actual innocence exception to the AEDPA's limitations period, noting that § 2244(d) "contains no explicit exemption for petitioners claiming actual innocence of the crimes of which they have been convicted." Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). However, at least one judge in this district has held that an actual innocence exception exists that would toll the one year limitations period contained in § 2244(d)(1). Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D. Mich. 2001). However, the court 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 present case, Petitioner is not entitled to tolling of the limitations period based upon an actual innocence exception, assuming such an exception exists, because he has presented no new, reliable evidence to establish that he is actually innocent of the crimes of which he was convicted. The only evidence of innocence that Petitioner offers is his claim that the main prosecution witness, Tracey Robinson, committed perjury, because he testified at trial that a co-perpetrator named "Fee" shot the victim during a drug dispute after being ordered to do so by Petitioner, but had previously identified Petitioner's co-defendant, Aubrey Smith, as being the actual shooter. However, at trial, Robinson testified that Smith was also present during the altercation and had been armed with a firearm. Moreover, Robinson testified at one point during the trial that he did not actually see who fired the shots that killed the victim. In Tate v. Pierson, 177 F. Supp.2d 792, 801 (N.D. Ill. 2001), the federal habeas court held that a habeas petitioner did not satisfy the standard of demonstrating "a fundamental miscarriage of justice" exception to the AEDPA's limitations period, where the only new evidence that petitioner relied upon involved the possible testimony of a witness who could only testify that he did not see the habeas petitioner at the time of the shooting, but could not conclusively rule out the petitioner's involvement. In so ruling, the court noted that petitioner's contentions only raised a question of whether he was the one who actually hit the victim with a fired shot, not whether the petitioner would still be guilty under an accountability theory. Id.
In the present case, Petitioner's claim that it was co-defendant Smith, and not this person identified only as "Fee" who did the shooting does not conclusively rule out Petitioner's involvement in the crime, because the evidence would not rule out the possibility that Petitioner could be guilty under an aider and abettor theory. Accordingly, Petitioner has failed to establish that he is actually innocent of these crimes, for purposes of tolling the AEDPA's limitations period.
III. CONCLUSION
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 2244 (d)(1)