Hollman v. Woods

Filing 16

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID D. HOLLMAN, # 222991, 1
Petitioner,

Civil No. 2:10-CV-13916
HONORABLE ARTHUR J. TARNOW

v.
JEFFREY WOODS,
Respondent,
_______________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF
HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
David D. Hollman, (“petitioner”), presently confined at the Kinross Correctional
Facility in Kincheloe, Michigan, has filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, in which he challenges his conviction for first-degree felony
murder, M.C.L.A. 750.316; assault with intent to commit murder, M.C.L.A. 750.83; and
felony-firearm, M.C.L.A. 750.227b. Respondent has filed a motion for summary
judgment, contending that petitioner has failed to comply with the statute of limitations
contained in 28 U.S.C. § 2244(d)(1). Petitioner has filed a reply to the motion for
summary judgment. For the reasons stated below, petitioner’s application for a writ of
habeas corpus is SUMMARILY DISMISSED.
I. Background
Petitioner was convicted of the above offenses in the Detroit Recorder’s Court in
1994. Direct review of petitioner’s conviction ended on June 30, 1997, when the
1

Petitioner’s last name is also spelled Hollmon.
1

Michigan Supreme Court denied petitioner’s application for leave to appeal following the
affirmance of his conviction by the Michigan Court of Appeals. People v. Hollmon, 455
Mich. 854; 567 N.W.2d 246 (1997).
On November 19, 2007, petitioner filed a motion for relief from judgment
pursuant to M.C.R. 6.500, et. seq., with the Wayne County Circuit Court. 2 After the trial
court and the Michigan Court of Appeals denied petitioner’s post-conviction application,
the Michigan Supreme Court denied petitioner’s application for leave to appeal the
denial of post-conviction relief on July 26, 2010. People v. Hollmon, 487 Mich. 855, 784
N.W.2d 801 (2010). The instant petition was signed and dated September 24, 2010. 3
II. Discussion
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one year
statute of limitations shall apply to an application for writ of habeas corpus by a person
in custody pursuant to a judgment of a state court. The one year statute of limitation
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;
2

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, 996-97 (E.D. Mich. 1999).
3

Under the prison mailbox rule, a federal habeas petition is filed when the
prisoner gives his petition to prison officials for mailing to the federal courts. Hudson v.
Martin, 68 F. Supp. 2d 798, 799, n. 2 (E.D. Mich. 1999). Absent evidence to the
contrary, a federal court will assume that a prisoner gave his habeas petition to prison
officials on the date he signed it, for the purposes of the AEDPA’s one year limitations
period. Id. Because petitioner’s habeas petition is signed and dated September 24,
2010, this Court assumes that this was the date that petitioner actually filed his petition
with this Court.
2

(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.
28 U.S.C. § 2244(d)(1).
A petition for writ of habeas corpus must be dismissed where it has not been filed
within the one year statute of limitations. Holloway v. Jones, 166 F. Supp. 2d 1185,
1188 (E.D. Mich. 2001).
Petitioner’s direct appeal of his conviction ended when the Michigan Supreme
Court denied leave to appeal on June 30, 1997. Petitioner’s conviction would become
final, for the purposes of the AEDPA’s limitations period, on the date that the 90 day
time period for seeking certiorari with the U.S. Supreme Court expired. See Bronaugh v.
Ohio, 235 F. 3d 280, 283 (6th Cir. 2000). Petitioner’s judgment therefore became final
on September 28, 1997, when he failed to file a petition for writ of certiorari with the U.S.
Supreme Court. Holloway, 166 F. Supp. 2d at 1188. Absent state collateral review,
petitioner would have been required to file his petition for writ of habeas corpus with this
Court no later than September 28, 1998 in order for the petition to be timely filed. Id.
Petitioner filed his post-conviction motion for relief from judgment on November
19, 2007, more than nine years after the one year limitations period had already
expired. 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 pursuant to 28
3

U.S.C. § 2244(d)(2), because there is no period remaining to be tolled. See Hargrove v.
Brigano, 300 F. 3d 717, 718, n. 1 (6th Cir. 2002); See also Jurado v. Burt, 337 F. 3d 638,
641 (6th Cir. 2003). The instant petition is untimely.
Moreover, the mere fact that petitioner raised a claim of ineffective assistance of
appellate counsel in his post-conviction motion would not re-start the one year
limitations process anew, as petitioner suggests. A motion for state post-conviction
review which alleges ineffective assistance of appellate counsel tolls, but does not
restart, the AEDPA’s limitations period. See Allen v. Yukins, 366 F. 3d 396, 401 (6th Cir.
2004); See also McClendon v. Sherman, 329 F. 3d 490, 493 (6th Cir. 2003). Because
the limitations period had already expired by the time that the post-conviction motion
was filed, the fact that petitioner alleged the ineffective assistance of appellate counsel
in this motion would not revive the statute of limitations.
The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate
cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). 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 the
timely filing of the habeas petition. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)).
In his reply to the motion for summary judgment, petitioner first argues that he is
entitled to equitable tolling because the prosecutor perpetuated a fraud upon the state
trial court at the time of petitioner’s trial. Petitioner specifically alleges that the
prosecutor committed a fraud at petitioner’s trial by informing the trial court judge that
the police were unable to locate one of the prosecutor’s witnesses, John Hightower,
4

which resulted in the judge permitting the prosecutor to use Hightower’s preliminary
examination testimony in lieu of his live testimony. Petitioner contends that he is
entitled to equitable tolling on the basis of fraudulent concealment or wrongdoing on the
state’s part.
In order to toll 28 U.S.C. § 2244(d)(1) on the basis of fraudulent concealment, a
habeas petitioner has the burden of proving that:
1. the respondent concealed the conduct that constitutes the cause of
action;
2. The respondent’s concealment prevented the petitioner from
discovering the cause of action within the limitations period; and,
3. until discovery, the petitioner exercised due diligence in trying to find out
about the cause of action.
Bogan v. Huffman, 238 F.3d 419 (Table), No. 2000 WL 1800572, * 2 (6th Cir.
November 30, 2000)(citing Hill v. United States Dep’t of Labor, 65 F.3d 1331, 1335-36
(6th Cir. 1995)).
“Tolling on the basis of fraudulent concealment is to be narrowly applied.” Bogan
v. Huffman, Slip. Op. at * 2 ( citing Hill, 65 F. 3d at 1336).
Petitioner is not entitled to equitable tolling on this basis, because he has failed to
show that the state court prosecutor concealed the conduct that forms the basis of
petitioner’s claims. Petitioner was aware at the time of trial that the prosecutor had
used Hightower’s preliminary examination testimony after convincing the trial judge that
the police could not find Hightower. Petitioner’s appellate counsel challenged the trial
court judge’s decision to allow the prosecutor to use Hightower’s preliminary
examination testimony on petitioner’s direct appeal. Because there was no

5

concealment of the facts underlying petitioner’s claims, petitioner is not entitled to
equitable tolling on the basis of fraudulent concealment.
Petitioner next alleges that when he entered prison, he was diagnosed with
epilepsy and had unspecified mental problems which prevented him from filing any pro
se pleadings. Petitioner also argues that he was hampered in filing any post-conviction
pleadings, because he did not have the assistance of prison paralegals.
In order for a habeas petitioner’s mental incapacity to warrant the equitable
tolling of the AEDPA’s statute of limitations, “the petitioner must demonstrate that the
incompetence affected his or her ability to file a timely habeas petition.” Robertson v.
Simpson, 624 F. 3d 781, 785 (6th Cir. 2010). Moreover, “[m]ental incompetence is not a
per se reason to toll a statute of limitations.” McSwain v. Davis, 287 Fed. Appx. 450,
456 (6th Cir. 2008); See also Brown v. McKee, 232 F. Supp. 2d 761, 767 (E.D. Mich.
2002). “In order to be entitled to equitable tolling the petitioner must make a threshold
showing of incompetence and must also demonstrate that the alleged incompetence
affected her ability to file a timely habeas petition.” McSwain, 287 Fed. Appx. at 456,
See also Nowak v. Yukins, 46 Fed.Appx. 257, 259 (6th Cir. 2002). A habeas petitioner
must allege more than the “mere existence of physical or mental ailments” in order to
qualify for the equitable tolling of the AEDPA’s statute of limitations. Brown v. McKee,
232 F. Supp. 2d at 767.
Petitioner has provided no evidence to support his claim that he was diagnosed
with a mental illness, nor does he specify the nature of his mental problems, whether he
is still suffering from them, or the type of treatment that he is receiving. The AEDPA’s
limitations period is not tolled, because petitioner has failed to make a factual showing
6

of any mental incapacity. See Lawrence v. Florida, 549 U.S. 327, 337 (2007). Because
petitioner has failed to allege any facts that would suggest that any mental illness
prevented him from timely filing his habeas petition, he is not entitled to equitable tolling
on this basis. McSwain, 287 Fed. Appx. at 457; See also Brown v. McKee, 232 F. Supp.
2d at 768 (petitioner not entitled to equitable tolling when he failed to identify the mental
illness that he was being treated for).
Moreover, to the extent that petitioner is still suffering from epilepsy and these
unspecified mental problems, he would not be entitled to equitable tolling. “The
exceptional circumstances that would justify equitable tolling on the basis of mental
incapacity are not present when the party who seeks the tolling has been able to pursue
his or her legal claims during the period of his or her alleged mental incapacity.” Brown,
232 F. Supp. 2d at 768. To the extent that petitioner was able to seek post-conviction
relief in the state courts and subsequently seek habeas relief in the federal court while
suffering from these impairments, he would not be entitled to equitable tolling of the
limitations period. Id. The AEDPA’s limitations period is not tolled by petitioner’s mental
problems, where nothing in the record suggests that petitioner was incompetent during
all or a significant portion of the time that he allowed to elapse before the limitations
period expired. See Price v. Jamrog, 79 Fed. Appx. 110, 112 (6th Cir. 2003).
Finally, petitioner’s ignorance of the law and lack of education are not grounds for
equitable tolling, Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004); Cobas v. Burgess,
306 F.3d 441, 444 (6th Cir. 2002), and “states are not required to hire paralegals to
assist prisoners,” Sutton v. Stewart, 51 Fed. Appx. 752, 753 (9th Cir.2002)(citing Lewis

7

v. Casey, 518 U.S. 343, 356 (1996)). Petitioner would therefore not be entitled to
equitable tolling because he did not have the assistance of a prison paralegal.
Petitioner next argues that this Court should ignore the limitations period
because his claims have merit. The AEDPA’s statute of limitations must be complied
with by a habeas petitioner before a federal court can address the merits of the habeas
petition itself. See Sweger v. Chesney, 294 F. 3d 506, 518-19 (3rd Cir. 2002). A merits
decision is unnecessary where a district court denies a habeas petition on statute of
limitations grounds. See Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007).
Because petitioner’s habeas application is untimely, the Court would not err in declining
to address the merits of petitioner’s substantive claims.
The one year statute of limitations may be equitably tolled based upon a credible
showing of actual innocence under the standard enunciated in Schup v. Delo, 513 U.S.
298 (1995). See Souter v. Jones, 395 F. 3d 577, 599-600 (6th Cir. 2005). To establish
actual innocence, “a petitioner must show that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at
590 (quoting Schlup 513 U.S. at 327). For an actual innocence exception to be
credible, such a claim requires a habeas petitioner to support his or her 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; Souter, 395 F. 3d at 590. The Sixth Circuit
further noted that “actual innocence means factual innocence, not mere legal
insufficiency.” Souter, 395 F. 3d at 590 (quoting Bousley v. United States, 523 U.S. 614,
623 (1998)). Finally, the Sixth Circuit in Souter recognized the Supreme Court’s
8

admonition that the actual innocence exception should “remain rare” and “only be
applied in the ‘extraordinary case.’” Id. (quoting Schlup, 513 U.S. at 321).
In this case, petitioner’s case falls outside of the actual innocence tolling
exception enunciated in Souter, because petitioner has presented no new, reliable
evidence to establish that he was actually innocent of the crimes charged. See Ross v.
Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005); Holloway, 166 F. Supp. 2d at 1191.
Petitioner argues that he does not need to show that he is actually innocent in
order for the limitations period to be tolled, but merely needs to show a “miscarriage of
justice.”
Petitioner’s argument is misplaced, because the miscarriage of justice exception
to procedurally barred claims is essentially the same as the actual innocence standard.
The “fundamental miscarriage of justice” exception to a procedural bar is available only
to a petitioner who submits new evidence showing that “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Williams v. Bagley,
380 F. 3d 932, 973 (6th Cir. 2004)(quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). A habeas petitioner who
asserts only procedural violations without claiming actual innocence is unable to meet
the miscarriage of justice exception to allow judicial review of an untimely habeas
petition. See Johnson v. Knowles, 541 F. 3d 933, 937-38 (9th Cir. 2008); See also
Owens v. Stine, 27 Fed. Appx. 351, 353-54 (6th Cir. 2001)(application of the habeas
statute of limitations did not result in a miscarriage of justice where petitioner had not
submitted any new evidence demonstrating his innocence).

9

Finally, to the extent that petitioner contends that Hightower committed perjury at
the preliminary examination and that the prosecutor used this allegedly perjured
testimony at trial, petitioner would not be entitled to tolling of the limitations period.
Other than his self-serving statements, petitioner has presented no evidence that
Hightower committed perjury at the preliminary examination. This would be insufficient
to invoke the actual innocence exception to the statute of limitations. See Murray v.
Bruce, 191 Fed. Appx. 688, 689 (10th Cir. 2006)(petitioner's unsubstantiated contention
that state presented perjured testimony in his state court prosecution was insufficient to
warrant equitable tolling of filing period for federal habeas petition on basis of
petitioner’s actual innocence). The fact another witness testified differently does not
mean either committed perjury.
III. Conclusion
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.
10

§ 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 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).
The Court finds that reasonable jurists could find its resolution of the equitable
tolling issue to be debatable or wrong. Accordingly, the Court will grant a certificate of
appealability.
Petitioner is also granted leave to proceed on appeal in forma pauperis, as any
appeal would not be frivolous. A court may grant in forma pauperis status if the court
finds that an appeal is being taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a); Foster v. Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich. 2002).
IV. CONCLUSION
Accordingly, the Court DISMISSES WITH PREJUDICE the petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2244(d)(1).
IT IS FURTHER ORDERED that the Court issues petitioner a certificate of
appealability and leave to proceed on appeal in forma pauperis.

Dated: April 28, 2011

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

I hereby certify that a copy of the foregoing document was served upon parties/counsel of record on April
28, 2011, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

11