Johnson v. McQuiggan

Filing 10

MEMORANDUM OPINION and ORDER GRANTING 9 MOTION for Summary Judgment, Thereby Dismissing Habeas Petition, Declining to Issue a Certificate of Appealability, and Denying an Application for Leave to Proceed on Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARSHALL JOHNSON, # 339410,
Petitioner,

Case Number: 10-CV-15055
Honorable Arthur J. Tarnow

v.
GREG MCQUIGGIN,
Respondent.
______________________________/

OPINION AND ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT, THEREBY
DISMISSING HABEAS PETITION, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING AN APPLICATION FOR LEAVE TO PROCEED
ON APPEAL IN FORMA PAUPERIS
I. INTRODUCTION
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Michigan prisoner
Marshall Johnson (“Petitioner”) was convicted of first-degree premeditated murder, felon in
possession of a firearm, and felony firearm following a jury trial in the Wayne County Circuit
Court in Detroit, Michigan. He was sentenced to concurrent terms of life in prison for the
murder conviction, twenty-three months to five years in prison for the possession conviction, and
a consecutive two-year prison term for the felony-firearm conviction. In his habeas petition,
Petitioner raises claims involving the sufficiency of the evidence, jury instructions, double
jeopardy, due process, and the effectiveness of trial counsel.
Pending before the Court is Respondent’s motion for summary judgment, filed
on the grounds the petition is untimely. Petitioner did not file a reply to the motion. For the
reasons that follow, the motion will be granted. The Court also will decline to issue Petitioner a

certificate of appealability and will deny him an application for leave to proceed on appeal in
forma pauperis.
II. FACTS AND PROCEDURAL HISTORY
The Michigan Court of Appeals summarized the facts as follows:
Defendant was convicted for his involvement in the shooting
death of Richard Morris. The evidence at trial showed that defendant was driving
a Jeep with three other passengers when he observed Morris on the street.
Defendant asked the passengers in the Jeep if they wanted to “get” Morris, and
then pulled the Jeep alongside Morris. According to the passengers in the Jeep,
defendant produced a gun and attempted to fire shots at Morris, but the gun did
not immediately fire. Defendant then tried firing again and was able to fire
several shots. Another passenger in the Jeep also had a gun and fired shots at
Morris. Although Morris was shot several times, only one bullet was recovered
from Morris’s body, from inside his chest. The police determined that the bullet
was fired from the same gun that defendant had in his possession at the time of
his arrest. After he was arrested, defendant gave a statement to the police in
which he admitted that he shot Morris for revenge, intending to kill him.
People v. Johnson, No. 272750, 2008 WL 5046314, at *1 (Mich.Ct.App. Nov. 25, 2008)
(unpublished).
On March 5, 2002, Petitioner was found guilty. He was sentenced on March 22, 2002.
He subsequently filed a motion for a new trial, which was denied on July 21, 2006.
Petitioner filed a direct appeal with the Michigan Court of Appeals, which affirmed his
convictions and sentences on November 25, 2008. Johnson, 2008 WL 5046314, at *1-5. His
application for leave to appeal, filed with the Michigan Supreme Court, was denied on June 23,
2009. People v. Johnson, 483 Mich. 1111, 766 N.W.2d 825 (2009) (Table).
Petitioner’s habeas petition was filed on December 21, 2010. It was signed and dated
December 14, 2010.

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III. DISCUSSION
A. Standard of Review
Respondent argues in his motion for summary judgment that the habeas petition should
be barred from federal-habeas review by the one-year statute of limitations.
A motion for summary judgment should be granted if the movant shows “that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c)(2). The moving party has the initial burden of informing the Court of
the basis for its motion, and identifying where to look in the record for relevant facts “which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who “must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986) (citation omitted). “The summary judgment rule applies to habeas
proceedings.” See Redmond v. Jackson, 295 F.Supp.2d 767, 770 (E.D. Mich. 2003) (quoting
Harris v. Stegall, 157 F.Supp.2d 743, 746 (E.D. Mich. 2001) (citation omitted)). In the statute of
limitations context, “dismissal is appropriate only if a [moving party] clearly shows the
claim is out of time.” Harris v. New York, 186 F.3d 243, 250 (2d Cir. 1999); see also Cooey v.
Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007) (same).
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 includes a one-year period of limitations for
habeas petitions brought by prisoners challenging state-court judgments. The statute provides:

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(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.
(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. Wilson v. Birkett, 192 F.Supp.2d 763, 765 (E.D. Mich. 2002).
B. Habeas Petition Filed Outside Limitations Period
In this case, Petitioner did not file his habeas petition within the limitations period. The
Michigan Supreme Court denied his application for leave to appeal on June 23, 2009.1 Petitioner
then had ninety days from that order, or until September 21, 2009, in which to seek a writ of
certiorari with the United States Supreme Court. SUP.CT.R. 13. For statute of limitations

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Petitioner incorrectly cites September 20, 2009, as the date when his application for
leave to appeal was denied by the Michigan Supreme Court.

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purposes, his convictions became final on or about September 21, 2009. The limitations period
commenced the following day and continued to run uninterrupted until it expired on September
22, 2010. Petitioner was required to file his habeas petition on or before September 22, 2010,
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).
Petitioner did not file a post-conviction motion with the state trial court. His habeas
petition was filed on December 14, 2010, almost three months after the limitations period
expired. Petitioner did not file a reply to the Respondent’s motion. Thus, his petition is barred
from federal-habeas review.
C. No Equitable Tolling
The Supreme Court has recently confirmed that the one-year statute of limitations is not a
jurisdictional bar and is subject to equitable tolling. See Holland v. Florida, --- U.S. ----, 130
S.Ct. 2549, 2560 (2010). The Supreme Court 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)).
In Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit
held that habeas petitions are subject to equitable tolling under the five-part test set forth in
Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988), which provides: (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;

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and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing
his claim. Dunlap, 250 F.3d at 1008; see also Sherwood v. Prelesnik, 579 F.3d 581, 588 (6th
Cir. 2009). “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). “Typically, equitable tolling applies only
when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.” Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003)
(quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th
Cir. 2000)).
Petitioner has not presented any arguments establishing that he is entitled to equitable
tolling.
D. No Claim of Actual-Innocence
The Sixth Circuit has held that a claim of actual innocence may equitably toll the oneyear limitations period. 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)). 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

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evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. Actual innocence means
“factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623.
Petitioner does not provide the Court with support for that conclusion. He does not bring
forth any new evidence so that no reasonable juror would find him guilty beyond a reasonable
doubt.
Having failed to establish entitlement to either statutory or equitable tolling, Petitioner’s
habeas petition is dismissed as untimely.
IV. CONCLUSION
For the reasons stated above, Petitioner has failed to file his federal habeas action within
the one-year limitations period established by 28 U.S.C. § 2244(d) and has not demonstrated
entitlement to statutory or equitable tolling.
Accordingly, Respondent’s motion for summary judgment is GRANTED. The habeas
petition is DISMISSED WITH PREJUDICE.
Before Petitioner may appeal this 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 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. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

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Having considered the matter, jurists of reason would not find the procedural ruling that
the habeas petition is untimely and cannot be saved by statutory or equitable tolling debatable.
Accordingly, the Court DECLINES to issue Petitioner a certificate of appealability and
DENIES him an application for leave to proceed on appeal in forma pauperis.
SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: June 20, 2011
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on June 20, 2011, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

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