Williams v. Howes

Filing 37

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY WILLIAMS,
Case Number: 2:08-CV-10772

Petitioner,
v.

HON. LAWRENCE P. ZATKOFF

CAROL HOWES,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Anthony J. Williams has filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the G. Robert Cotton Correctional
Facility in Jackson, Michigan, challenges his conviction for first-degree felony murder. Petitioner
raises eight claims for habeas relief. Respondent argues that the petition is untimely and, in the
alternative, that the claims are meritless and/or procedurally barred.
I.

Background
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of first-

degree murder. On July 11, 2000, he was sentenced to life imprisonment. Petitioner filed an appeal
of right in the Michigan Court of Appeals. The Michigan Court of Appeals affirmed Petitioner’s
conviction. People v. Williams, No. 231903, 2002 WL 1482593 (Mich. Ct. App. July 9, 2002).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court, which was
denied. People v. Williams, 468 Mich. 858 (Mich. Feb. 28, 2003). Petitioner filed a motion for
reconsideration, which was also denied. People v. Williams, 468 Mich. 858 (May 30, 2003).

On November 6, 2003, Petitioner filed a motion for relief from judgment in the trial court.
On February 2, 2005, the trial court dismissed the motion without prejudice and granted Petitioner’s
motion for counsel so that appointed counsel could “re-file the same motion, file a substitute motion,
or an amended motion, in his discretion.” People v. Williams, No. 99-008744-03 (Wayne County
Circuit Court Feb. 2, 2005). On October 31, 2006, appointed counsel filed a “Summary of
Proceedings and Arguments.” On June 14, 2007, the trial court entered an order dismissing the
motion for relief from judgment so that Petitioner’s attorney could file a motion for relief from
judgment in compliance with Mich. Ct. Rule 6.500. People v. Williams, No. 99-008744-03 (Wayne
County Cir. Ct. June 14, 2007).
On February 20, 2008, Petitioner filed a habeas corpus petition. Petitioner moved for a stay
so that he could return to state court to raise unexhausted claims. The Court granted a stay on March
6, 2008. Petitioner filed motion for relief from judgment in the trial court on March 2, 2008. The
trial court denied the motion on January 21, 2009. People v. Williams, No. 99-008744-03 (Wayne
County Cir. Ct. Jan. 21, 2009). Petitioner filed an application for leave to appeal in the Michigan
Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Williams, No.
292177 (Mich. Ct. App. Sept. 23, 2009). The Michigan Supreme Court also denied Petitioner’s
application for leave to appeal. People v. Williams, 486 Mich. 900 (Mich. Apr. 27, 2010).
Petitioner then filed a motion to lift the stay in these habeas proceedings. The Court granted
the motion and ordered Respondent to file an answer to Petitioner’s amended petition.
II.

Statute of Limitations
Respondent argues that the petition is barred by the one-year statute of limitations. A

prisoner must file a federal habeas corpus petition within one year of the “date on which the

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judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review . . . or 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) & (D).
The one-year limitation period begins at the deadline for filing a petition for a writ of certiorari to
the United States Supreme Court. Isham v. Randle, 226 F.3d 69, 694-95 (6th Cir. 2000). In
addition, the time during which a prisoner seeks state-court collateral review of a conviction does
not count toward the limitation period. 28 U.S.C. § 2244(d)(2). A properly filed application for
state post-conviction relief, while tolling the limitation, does not re-fresh the limitation period.
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
Petitioner appealed his conviction first to the Michigan Court of Appeals, and then to the
Michigan Supreme Court. The Michigan Supreme Court denied his application for leave to appeal
on May 30, 2003. Petitioner had ninety days from that date to file a petition for writ of certiorari
with the United States Supreme Court, which he did not do. Thus, his conviction became final on
August 28, 2003, when the time for seeking certiorari expired. Bronaugh v. Ohio, 235 F.3d 280, 283
(6th Cir. 2000) (one-year statute of limitations begins when the time for filing a petition for a writ
of certiorari for direct review in the United States Supreme Court has expires). The last day on
which a petitioner can petition for a writ of certiorari in the United States Supreme Court is not
counted toward the one-year limitation period applicable to a habeas corpus petition. Id. at 285.
Accordingly, the limitation period commenced on August 29, 2003 and continued to run until
Petitioner filed a motion for relief from judgment on November 6, 2003. That motion, a properly
filed motion for state-court collateral review, tolled the limitation period with 295 days remaining.
See 28 U.S.C. § 2244(d)(2). The limitations period resumed running on February 2, 2005, the day

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after the trial court dismissed the motion without prejudice. It continued to run until October 31,
2006, when Petitioner, through counsel, filed a “Summary of Proceedings and Arguments” in the
trial court. That motion tolled the limitations period with only twenty-four days remaining. The
limitations period remained tolled until June 14, 2007, when the trial court dismissed the motion
without prejudice. The limitations period resumed on June 15, 2007, and continued to run until it
expired twenty-four days later.
Petitioner filed the pending petition on February 20, 2008. The Court granted Petitioner’s
simultaneous motion to stay without making any determination regarding the timeliness of the
petition. The petition was filed approximately eight months after the limitations period expired.
Petitioner argues for statutory and equitable tolling of the limitations period for the time between
the dismissal without prejudice of his first motion for relief from judgment (February 2, 2005) and
the filing of his second motion for relief from judgment (October 31, 2006), because his application
for collateral review remained “pending” in the state court during that interval. In support of his
argument, Petitioner cites the United States Supreme Court’s decision in Carey v. Safford, 536 U.S.
214 (2003). In Carey, the Supreme Court held that the statute of limitations remained tolled during
the time period between a lower court’s denial of a post-conviction motion and an appeal to the next
appellate level. Id. at 219–21. The Supreme Court specifically held that the word “pending” in the
AEDPA tolling provision, § 2244(d)(2), means “that an application is pending as long as the
ordinary state collateral review process is ‘in continuance’ – i.e., ‘until the completion of’ that
process. In other words, until the application has achieved final resolution through the State’s postconviction review procedures, by definition it remains ‘pending.’” Id.
Petitioner’s first motion for relief from judgment was dismissed without prejudice on

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February 2, 2005. Petitioner did not seek leave to appeal that dismissal. If he had, under Carey, the
limitations period would have been statutorily tolled for the time between the dismissal and the filing
of an application for leave to appeal in the Michigan Court of Appeals. Because Petitioner did not
seek leave to appeal, his first motion for relief from judgment achieved final resolution when it was
dismissed without prejudice by the trial court. Upon the dismissal of the motion, Petitioner had no
application for collateral review pending in state court and the limitations period, absent equitable
tolling, resumed running.
Petitioner also argues for equitable tolling of the limitations period for the twenty-month
period between the dismissal of his first motion and the filing of the second motion. Equitable
tolling is available to toll a statute of limitations when “‘a litigant’s failure to meet a legallymandated deadline unavoidably arose from circumstances beyond that litigant’s control.’”
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010), quoting Graham-Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000). The one-year limitations period
applicable to § 2254 is “subject to equitable tolling in appropriate cases.” See Holland v. Florida,
__ U.S. __, __, 130 S. Ct. 2549, 2560 (2010). To be entitled to equitable tolling, a petitioner must
show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Lawrence v. Florida, 594 U.S. 327,
336 (2007), quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A claim of actual innocence
may also justify equitable tolling in certain circumstances. Souter v. Jones, 395 F.3d 577, 588 (6th
Cir. 2005). A petitioner bears the burden of showing that he is entitled to equitable tolling.
Robertson, 624 F.3d at 784.
Petitioner argues that equitable tolling is warranted because he diligently pursued his rights

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and his attorney needed to await preparation of a transcript to file a second motion for relief from
judgment. The record shows, however, that Petitioner was not diligent in pursuing his rights.
Approximately twenty months elapsed between the filing of his first and second motions for relief
from judgment. After the dismissal of his second motion for relief from judgment, Petitioner waited
an additional eight months to file a habeas petition. These time gaps of twenty months and eight
months do not evidence the diligence required for equitable tolling. Moreover, “the unavailability
of or delay in receiving transcripts is not enough to entitle a petitioner to equitable tolling.” Hall
v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 750-51 (6th Cir. 2011). Therefore, the Court
finds the petition is untimely.
III.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing
Section 2254 Proceedings, which was amended as of December 1, 2009, requires that a district court
must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
. . . If the court issues a certificate, the court must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2).” Rule 11, Rules Governing Section 2255 Proceedings.
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why such
a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a
petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the

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petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotes and citations omitted).
In this case, the Court concludes that reasonable jurists would not debate the Court’s
conclusion that the petition is untimely. Therefore, the Court denies a certificate of appealability.
IV.

Conclusion
The petitioner failed to file his habeas petition within the applicable one-year limitations

period and equitable tolling of the limitations period is not warranted.
Accordingly, IT IS ORDERED that the petitioner for a writ of habeas corpus is DENIED
and the matter is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
DATED: February 14, 2013

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