Bey v. Capello

Filing 15

OPINION AND ORDER Granting Respondent's 10 Motion to Dismiss and Denying Certificate of Appealability. Signed by District Judge Robert H. Cleland. (CGre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTOPHER BEY,
Petitioner,
Case No. 10-15068

v.
GREG CAPELLO,
Respondent.
/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO DISMISS AND
DENYING CERTIFICATE OF APPEALABILITY
Petitioner Christopher Bey filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner, currently incarcerated at the Marquette
Branch Prison in Marquette, Michigan, challenges his convictions for delivery of a
controlled substance under 50 grams, felon in possession of a firearm, and two counts
of possession of a short-barreled shotgun or rifle. Respondent has filed a motion to
dismiss on the ground that the petition was not timely filed. The court finds that the
petition was not timely filed and the motion will be granted.
I. BACKGROUND
Petitioner pleaded guilty in Oakland County Circuit Court to the crimes set forth
above. On June 7, 1999, he was sentenced as a fourth habitual offender to one to
twenty years in prison for the controlled substance conviction, and to concurrent terms
of six months for the remaining convictions.
Petitioner filed a motion to vacate judgment and to withdraw guilty plea in the trial
court. The motion was denied on September 29, 1999. People v. Bey, No. 99-165767-

FH (Oakland Cnty. Cir. Ct. Sept. 29, 1999). He did not seek leave to appeal to the
Michigan Court of Appeals or the Michigan Supreme Court.
Petitioner then filed a motion for relief from judgment in the trial court. The trial
court denied the motion on August 7, 2001. People v. Bey, No. 99-165767-FH
(Oakland Cnty. Cir. Ct. Aug. 7, 2001). Petitioner filed a delayed application for leave to
appeal the trial court’s denial of his motion in the Michigan Court of Appeals on October
9, 2002. The Michigan Court of Appeals dismissed the application because it was not
filed within twelve months of the date of entry of the trial court’s order. People v. Bey,
No. 244221 (Mich. Ct. App. Oct. 30, 2002). The Michigan Supreme Court denied
Petitioner’s delayed application for leave to appeal because the court was not
persuaded that the questions presented should be reviewed. People v. Bey, No.
122836 (Mich. Apr. 29, 2003).
On February 28, 2008, Petitioner filed a second motion for relief from judgment in
the trial court. The trial court denied the motion because it was an impermissible
successive motion and did not warrant an exception to the ban on successive motions.
People v. Bey, No. 99-165767-FH (Oakland Cnty. Cir. Ct. Sept. 26, 2008). Petitioner’s
delayed application for leave to appeal to the Michigan Court of Appeals was denied
because Petitioner “failed to meet the burden of establishing entitlement to relief under
M.C.R. 6.508(D).” People v. Bey, No. 293796 (Mich. Ct. App. Oct. 30, 2009). The
Michigan Supreme Court denied Petitioner’s delayed application for leave to appeal
because his motion for relief from judgment was prohibited by Michigan Court Rule
6.502(G). People v. Bey, No. 140176 (Mich. Mar. 29, 2010).

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Petitioner filed the pending habeas corpus petition on December 15, 2010.
Respondent has filed a motion to dismiss.
II. DISCUSSION
Respondent argues that the petition should be dismissed because it was not
timely filed. A prisoner must file a federal habeas corpus petition within one year of the
“date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The oneyear limitations period does not begin to run until the time for filing a petition for a writ of
certiorari to the United States Supreme Court has expired. Sherwood v. Prelesnik, 579
F.3d 581, 585 (6th Cir. 2009). In addition, the time during which a prisoner seeks statecourt collateral review of a conviction does not count toward the limitations period. 28
U.S.C. § 2244(d)(2). A properly filed application for state post-conviction relief, while
tolling the statute of limitations, does not serve to restart the limitations period. Vroman
v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
Petitioner did not file a direct appeal in the Michigan Court of Appeals. His
convictions, therefore, became final on September 29, 2000, when the one-year
limitations period for filing a delayed application for leave to appeal in the Michigan
Court of Appeals expired. See Michigan Court Rule 7.205(F); People v. Highland, 752
N.W.2d 465 (Mich. 2008). The limitations period for filing a habeas corpus petition
commenced on September 30, 2000. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.
2000) (holding that limitations period commences the day after the state-court
conviction becomes final). The record before the court shows that Petitioner filed a
motion for relief from judgment in the trial court in June 2001, but does not establish a
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particular day in June 2001 when the petition was filed. For purposes of this analysis,
the court will assume that the motion was filed on the date most favorable to Petitioner,
June 1, 2001. That motion, a properly filed motion for state-court collateral review,
tolled the limitations period with four months remaining. The limitations period resumed
running on April 29, 2003, the day after the Michigan Supreme Court denied Petitioner’s
application for leave to appeal. The limitations period continued to run, uninterrupted,
until it expired on August 29, 2003. The pending habeas petition was filed over seven
years after the limitations period expired.
Petitioner argues that the limitations period did not begin to run until 2008, when
he raised the claim (also raised in his habeas petition) that the state court lacked
subject-matter jurisdiction over his case in his motion for relief from judgment. The
one-year limitations period begins to run from the date upon which the factual predicate
for a claim could have been discovered through due diligence. 28 U.S.C.
§ 2244(d)(1)(D). Section 2244(d)(1)(D) “does not convey a statutory right to an
extended delay . . . while a habeas petitioner gathers every possible scrap of evidence
that might . . . support his claim.” Sorce v. Artuz, 73 F. Supp. 2d 292, 294-95
(E.D.N.Y.1999) (internal quotation marks and citation omitted). A habeas petitioner has
the burden of proof in establishing that he exercised due diligence in searching for the
factual predicate of the habeas claims. Stokes v. Leonard, 36 F. App’x 801, 804 (6th
Cir. 2002). “An application that ‘merely alleges that the applicant did not actually know
the facts underlying his . . . claim’ is insufficient to show due diligence.” Id. (quoting In
re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997)). While Petitioner states that he did
not raise the subject-matter jurisdiction claim in state court until 2008, he does not state
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when he became aware of this claim. Thus, Petitioner has not shown (or even alleged)
that the facts underlying his claim were not known to him or could not have been made
known to him through the exercise of due diligence prior to 2008. Accordingly, the court
concludes that the petition was not timely filed.
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(a), Rules Governing
§ 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254.
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 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 quotation marks and citations omitted).
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In this case, the court concludes that reasonable jurists would not debate the
court’s conclusion that the petition is untimely. Therefore, the court will deny a
certificate of appealability.
IV. CONCLUSION
The court finds that Petitioner failed to file his habeas petition within the
applicable one-year limitations period. Accordingly,
IT IS ORDERED that Respondent’s “Motion to Dismiss” [Dkt. # 10] is GRANTED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 8, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 8, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\10-15068.BEY.HabeasDismissSOL.mbc.jmp.wpd

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