Judge v. Harry, No. 2:2013cv10015 - Document 13 (E.D. Mich. 2013)
Court Description: OPINION and ORDER Granting Respondent's 10 Motion for Summary Judgment, Dismissing the 1 Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, And Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Nancy G. Edmunds. (JCur)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD JUDGE, #425342, Petitioner, CASE NO. 13-CV-10015 HONORABLE NANCY G. EDMUNDS v. SHIRLEE HARRY, Respondent. / OPINION AND ORDER GRANTING RESPONDENT S MOTION FOR SUMMARY JUDGMENT, DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL I. INTRODUCTION Michigan prisoner Ronald Judge ( Petitioner ) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in custody in violation of his constitutional rights. The matter is before the Court on Respondent s motion for summary judgment seeking to dismiss the petition as untimely under the one-year limitations period applicable to federal habeas actions. Having reviewed the matter, the Court finds that the petition is untimely and must be dismissed for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d). The Court also finds that a certificate of appealability and leave to proceed in forma pauperis on appeal should be denied. II. FACTS AND PROCEDURAL HISTORY Petitioner was convicted of second-degree criminal sexual conduct following a jury trial in the Wayne County Circuit Court and was sentenced to 1½ to 15 years imprisonment on August 26, 2002. His conviction arises from his conduct in fondling the buttocks of a young boy while working as a school lunch aide. Petitioner did not file a direct appeal of his conviction in the state courts. On September 17, 2004, Petitioner, through appointed counsel, filed a motion for relief from judgment with the state trial court raising claims concerning the conduct of the prosecutor, the effectiveness of trial counsel, and the trial court s control over the proceedings. The trial court denied the motion on December 20, 2004. Petitioner did not appeal that decision. On November 23, 2011, Petitioner filed a second motion for relief from judgment with the state trial court raising a claim concerning the effectiveness of appellate counsel. The trial court denied the motion on February 10, 2012. Petitioner did not appeal that decision. Petitioner dated his federal habeas petition on November 8, 2012 and it was filed by the Court on January 2, 2013. Petitioner asserts that appellate counsel was ineffective for failing to file an application for leave to appeal the trial court s denial of his first motion for relief from judgment. At the time he instituted this action, Petitioner also filed a motion for equitable tolling, which the Court denied without prejudice pending an answer to the petition. Respondent now moves for summary judgment contending that the petition is untimely and must be dismissed. Petitioner has not filed a reply to the motion. 2 III. SUMMARY JUDGMENT STANDARD Under the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000). The moving party bears the burden of showing the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). To defeat a motion for summary judgment, the non-moving party must set forth specific facts sufficient to show that a reasonable fact finder could return a verdict in his or her favor. Sanders, 221 F.3d at 851. The summary judgment rule applies to habeas proceedings. Redmond v. Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003). IV. 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. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA includes a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. The 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 3 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. 28 U.S.C. § 2244(d). A habeas petition filed outside the time period prescribed by this section must be dismissed. See Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (dismissing case filed 13 days after the limitations period expired); Wilson v. Birkett, 192 F. Supp. 2d 763, 765 (E.D. Mich. 2002). Petitioner s conviction became final after the AEDPA s April 24, 1996 effective date. Petitioner was sentenced on August 26, 2002. Under the state court rules in effect at that time, he had 12 months to file a delayed application for leave to appeal with the Michigan Court of Appeals. See Mich. Ct. R. 7.205(F)(3) (amended to 6 months in 2011). He did not do so. His conviction thus became final on August 26, 2003 when the time for seeking leave to appeal with the Michigan Court of Appeals ended. See Williams v. Birkett, 670 F.3d 729, 731 (6th Cir. 2012) (conviction became final after the one-year time limit for filing a direct appeal expired under MCR 7.205(F)(3)); see also Gonzalez v. Thaler, _ U.S. _, 132 S. Ct. 641, 656 (2012) (when a petitioner does not seek review in a state s highest court, the judgment becomes final when the time for seeking such review expires). Accordingly, Petitioner was required to file his federal habeas petition on or before August 4 26, 2004, excluding any time during which a properly filed application for state postconviction or collateral review was pending in accordance with 28 U.S.C. § 2244(d)(2). Petitioner filed his first motion for relief from judgment in the state trial court on September 17, 2004. Thus, the one-year limitations period expired before Petitioner sought state post-conviction review. A state court post-conviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000); see also Jurado v. Burt, 337 F.3d 638, 641 (6th Cir. 2003). Petitioner s state post-conviction proceedings did not toll the running of the statute of limitations. Furthermore, the AEDPA's limitations period does not begin to run anew after the completion of state post-conviction proceedings. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001). Petitioner has not shown that the State created an impediment to the filing of his federal habeas petition, nor has he shown that his claims are based upon newly-discovered evidence or newly-created retroactively-applicable rights which would warrant habeas relief. His habeas petition is therefore untimely under 28 U.S.C. § 2244(d). The United States Supreme Court has confirmed that the statute of limitations is not a jurisdictional bar and is subject to equitable tolling. Holland v. Florida, _ U.S. _, 130 S. Ct. 2549, 2560 (2010). The Supreme Court has further verified that a habeas petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Robertson v. Simpson, 624 F.3d 781, 783-84 (6th Cir. 2010). A petitioner has the burden of demonstrating that he is entitled to equitable tolling. Allen v. Yukins, 366 F.3d 396, 401 5 (6th Cir. 2004). Typically, equitable tolling applied only when a litigant s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant s control. Jurado, 337 F.3d at 642 (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)). Petitioner makes no such showing. In his equitable tolling motion, Petitioner asserts that he should be entitled to tolling because appellate counsel filed his first motion for relief from judgment instead of a delayed application for leave to appeal in 2004 and then did not appeal the trial court s denial of that motion, nor inform him of his appellate rights. Even assuming that counsel was ineffective in that regard, however, Petitioner fails to explain why he waited nearly seven years after the denial of his first motion for relief from judgment to file his second motion for relief from judgment and then waited nearly nine months after the denial of his second motion for relief from judgment to file his federal habeas petition. Petitioner has not shown that he acted diligently in pursuing his rights and/or that the extended delay in seeking habeas relief arose from circumstances beyond his control. Moreover, that fact that Petitioner is untrained in the law, may have been proceeding without a lawyer for a period of time, or may have been unaware of the statute of limitations does not warrant tolling. See Allen, 366 F.3d at 403 (ignorance of the law does not justify tolling); Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002) (the law is replete with instances which firmly establish that ignorance of the law, despite a litigant s pro se status, is no excuse for failure to follow established legal requirements); Holloway v. Jones, 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001) (lack of professional legal assistance does not justify tolling); Sperling v. White, 30 F. Supp. 2d 1246, 1254 (C.D. Cal. 1998) (citing cases stating that ignorance of the law, illiteracy, and lack of legal assistance do not justify tolling). Petitioner is not entitled to equitable tolling under Holland. 6 Both the United States Supreme Court and the United States Court of Appeals for the Sixth Circuit have held that a credible claim of actual innocence may equitably toll the one-year statute of limitations. McQuiggin v. Perkins, _ U.S. _, 133 S. Ct. 1924, 1928 (2013); Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005). As explained in Souter, to support a claim of actual innocence, a petitioner in a collateral proceeding must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also House v. Bell, 547 U.S. 518, 537-39 (2006). A valid claim of actual innocence requires a petitioner to support his allegations of constitutional error with new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence that was not presented at trial. Schlup, 513 U.S. at 324. Significantly, actual innocence means factual innocence, not mere legal insufficiency. Bousley, 523 U.S. at 623. Petitioner makes no such showing. He is thus not entitled to equitable tolling of the one-year period. V. CONCLUSION For the reasons stated, the Court concludes that Petitioner failed to file his federal habeas petition within the one-year limitations period established by 28 U.S.C. § 2244(d), that he has not demonstrated entitlement to statutory or equitable tolling, and that the statute of limitations precludes review of his claims. Accordingly, the Court GRANTS Respondent s motion for summary judgment and DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus. Before Petitioner may appeal the Court s decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional 7 right. 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district court s assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds without addressing the merits, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the court was correct in its procedural ruling. Id. Jurists of reason would not find the Court s procedural ruling debatable. Accordingly, the Court DENIES a certificate of appealability. The Court also DENIES leave to proceed in forma pauperis on appeal as an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a). IT IS SO ORDERED. S/Nancy G. Edmunds Nancy G. Edmunds United States District Judge Dated: August 28, 2013 I hereby certify that a copy of the foregoing document was served upon counsel of record on August 28, 2013, by electronic and/or ordinary mail. S/Johnetta M. Curry-Williams Case Manager Acting in the Absence of Carol A. Hemeyer 8
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