Truelove v. Curtin

Filing 11

OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J Tarnow. (CPic)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ERIC TRUELOVE, Petitioner, v. CINDI CURTIN, Respondent. / OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS, AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL I. Introduction This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Eric Truelove ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is incarcerated in violation of his constitutional rights. Respondent has filed an answer to the petition asserting that it should be dismissed as untimely and/or for lack of merit. For the reasons stated herein, the Court dismisses the petition for failure to comply with the oneyear statute of limitations set forth at 28 U.S.C. § 2244(d). The Court also denies a certificate of appealability and leave to proceed in forma pauperis on appeal. II. Facts and Procedural History Petitioner was convicted of second-degree murder following a jury trial in the Wayne County Circuit Court and was sentenced to 20 years 6 months to 31 years 7 months CASE NO. 2:08-CV-12893 HONORABLE ARTHUR J. TARNOW

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Truelove v. Curtin 2:08-CV-12893 Page 2 of 8 imprisonment in 2003. His conviction arises from the stabbing death of Emmanuel Rushing in Detroit, Michigan on July 1, 2002. Following his conviction and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals asserting that the trial court erred by denying his directed verdict motion, failing to instruct the jury on involuntary manslaughter, denying his request for a jury instruction on defense of another, and failing to instruct the jury on imperfect self-defense or imperfect defense of another. The Michigan Court of Appeals denied relief on those claims and affirmed Petitioner's conviction. See People v. Truelove, No. 250154, 2004 WL 2877292 (Mich. Ct. App. Dec. 14, 2004) (unpublished). Petitioner attempted to file an application for leave to appeal with the Michigan Supreme Court, but his application was rejected as untimely. On January 10, 2006, Petitioner filed a motion for relief from judgment with the state trial court raising two claims of ineffective assistance of appellate counsel. The trial court denied the motion. The Michigan Court of Appeals denied leave to appeal for failure "to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Truelove, No. 275951 (Mich. Ct. App. June 19, 2007). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. See People v. Truelove, 480 Mich. 1004, 742 N.W.2d 362 (Dec. 28, 2007). Petitioner dated his federal habeas petition and brief on July 2, 2008. He raises claims concerning the sufficiency of the evidence, the jury instructions, and the effectiveness of appellate counsel. Respondent has filed an answer to the petition contending that it should be

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Truelove v. Curtin 2:08-CV-12893 Page 3 of 8 dismissed for failure to comply with the one-year statute of limitations applicable to federal habeas actions and/or denied for lack of merit. III. 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). The AEDPA amended 28 U.S.C. § 2244 to include a oneyear period of limitations for habeas petitions brought by prisoners challenging state court judgments. 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.

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Truelove v. Curtin 2:08-CV-12893 Page 4 of 8 (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's direct appeal in the Michigan Court of Appeals concluded on December 14, 2004. He then had 56 days to file a delayed application for leave to appeal with the Michigan Supreme Court. See Mich. Ct. R. 7.302(C)(2); Rice v. Trippett, 63 F. Supp. 2d 784, 787 (E.D. Mich. 1999). He did not do so. Accordingly, his conviction became final on February 8, 2005 when the time for seeking leave to appeal with the Michigan Supreme Court expired. See Brown v. McKee, 232 F. Supp. 2d 761, 765 (E.D. Mich. 2002).1 Petitioner was thus required to file his federal habeas petition by February 8, 2006, excluding any time during which a properly filed application for state post-conviction or collateral review was pending in accordance with 28 U.S.C. § 2244(d)(2).

Normally, the one-year statute of limitations does not begin to run until the 90-day time period for filing a petition for writ of certiorari in the United States Supreme Court has expired. See Rule 13(1), Supreme Court Rules. Here, however, Petitioner is not entitled to have the 90 days added to the calculation of the limitations period because his failure to timely file an application for leave to appeal with the Michigan Supreme Court divested the United States Supreme Court of jurisdiction to grant a writ of certiorari. 4

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Truelove v. Curtin 2:08-CV-12893 Page 5 of 8 Petitioner filed his motion for relief from judgment with the trial court on January 10, 2006. At that point, 336 days of the one-year period had expired. Petitioner's motion remained pending in the state courts until December 28, 2007, when the Michigan Supreme Court denied leave to appeal. Petitioner then had 29 days, until January 26, 2008, to file his federal habeas petition. 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 did not date his federal habeas petition until July 2, 2008 ­ well after the one-year period expired. Petitioner does not assert that the State created an impediment to filing his habeas petition or that his claims are based upon newly-discovered evidence or newly-created rights which would warrant habeas relief. His habeas action is thus untimely under the statute of limitations set forth at 28 U.S.C. § 2244(d). The United States Court of Appeals for the Sixth Circuit has determined that the one-year limitations period is not a jurisdictional bar and 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.

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Truelove v. Curtin 2:08-CV-12893 Page 6 of 8 Dunlap, 250 F.3d at 1008. "These factors are not necessarily comprehensive and they are not all relevant in all cases. Ultimately, the decision whether to equitably toll a period of limitations must be decided on a case-by-case basis." Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002) (internal citation omitted). A petitioner has the burden of demonstrating that he is entitled to equitable tolling. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). "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 sets forth no circumstances which caused him to institute his habeas action after the expiration of the one-year period. The fact that he is untrained in the law, is proceeding without a lawyer, or may have been unaware of the statute of limitations for a certain period does not warrant tolling. See Allen, 366 F.3d at 403 (ignorance of the law does not justify tolling); 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 has not shown that he is entitled to equitable tolling under Dunlap. The Sixth Circuit has held that a credible claim of actual innocence may equitably toll the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1). See Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005); see also Holloway, 166 F. Supp. 2d at 1190. As explained in

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Truelove v. Curtin 2:08-CV-12893 Page 7 of 8 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 has made no such showing. He is thus not entitled to equitable tolling of the one-year limitations period. IV. Conclusion Based on the foregoing analysis, 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 DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus. Before Petitioner may appeal this Court's decision, a certificate of appealability must issue. See 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 right." 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would 7

Truelove v. Curtin 2:08-CV-12893 Page 8 of 8 find the district court's assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a district court rejects a habeas claim 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 district court was correct in its procedural ruling. Id. Having considered the matter, the Court concludes that jurists of reason would not find the Court's procedural ruling that the petition is untimely debatable. Accordingly, the Court DENIES a certificate of appealability. The Court also DENIES Petitioner leave to proceed in forma pauperis on appeal because such an appeal would be frivolous. See Fed. R. App. P. 24(a). IT IS SO ORDERED. S/Arthur J. Tarnow Arthur J. Tarnow United States District Judge Dated: June 17, 2010
I hereby certify that a copy of the foregoing document was served upon counsel of record on June 17, 2010, by electronic and/or ordinary mail. S/Catherine A. Pickles Judicial Secretary

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