Price v. Prelesnik
Filing
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OPINION AND ORDER GRANTING 8 MOTION for Summary Judgment and Dismissal of Petition for Writ of Habeas Corpus filed by John Prelesnik, DISMISSING 1 Petition for Writ of Habeas Corpus filed by Brian Price., DENYING a Certificate of Appealability and DENYING Leave to Proceed Informa Pauperis on Appeal. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN PRICE,
Petitioner,
v.
CASE NO. 2:11-CV-11281
JOHN PRELESNIK,
Respondent.
/
OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY
JUDGMENT, DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
I. INTRODUCTION
Michigan prisoner Brian Price (“Petitioner”) has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation
of his constitutional rights. Petitioner pleaded guilty to second-degree murder, Mich.
Comp. Laws § 750.317, in the Wayne County Circuit Court in 2005 and was sentenced
to 25 to 50 years imprisonment in 2006. In his petition, he claims that his plea was
involuntary or illusory because his sentence exceeded the state sentencing guidelines.
This matter is before the court on Respondent’s motion for summary judgment
seeking to dismiss the petition as untimely. Having reviewed the matter, the court will
grant Respondent’s motion and dismiss the petition for failure to comply with the oneyear statute of limitations set forth in 28 U.S.C. § 2244(d). The court will also decline to
issue a certificate of appealability and deny leave to proceed in forma pauperis on
appeal.
II. BACKGROUND
Petitioner pleaded guilty to second-degree murder in exchange for the dismissal
of first-degree murder, armed robbery, and felony firearm charges on December 5,
2005. The trial court sentenced him to 25 to 50 years imprisonment in conformity with
his plea agreement on January 6, 2006. Petitioner was appointed appellate counsel to
file an application for leave to appeal. On May 27, 2006, however, Petitioner signed an
affidavit stating that he did not wish to appeal. Petitioner subsequently moved for the
appointment of new appellate counsel and reinstatement of appeal. The trial court
granted his motion for the appointment of appellate counsel but denied his request to
restart the time for seeking leave to appeal. People v. Price, No. 05-008345-01 (Wayne
Cnty. Cir. Ct. Dec. 13, 2006) (unpublished). Petitioner thus did not pursue a direct
appeal of his conviction or sentence in the state appellate courts.
On July 7, 2008, Petitioner filed a motion for relief from judgment with the state
trial court raising the same claim presented in the instant petition. The trial court denied
the motion. People v. Price, No. 05-008345-01 (Wayne Cnty. Cir. Ct. April 9, 2009)
(unpublished). Petitioner then filed a delayed application for leave to appeal with the
Michigan Court of Appeals, which was denied. People v. Price, No. 291984 (Mich. Ct.
App. Aug. 27, 2009) (unpublished). He also filed an application for leave to appeal with
the Michigan Supreme Court, which was denied. People v. Price, 780 N.W.2d 260
(Mich. 2010).
Petitioner dated his federal habeas petition on March 24, 2011 and it was filed by
the court on March 30, 2011. Respondent moved for summary judgment on October 3,
2011, asserting that the petition should be dismissed for failure to comply with the one2
year statute of limitations applicable to federal habeas actions. Petitioner filed a reply to
that motion on November 16, 2011, contending that the trial court impeded his right to
pursue a direct appeal in the state courts.
III. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at
28 U.S.C. § 2241 et seq., 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). AEDPA includes a one-year period of limitations for habeas petitions brought
by prisoners challenging state court judgments. The 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.
(2) The time during which a properly filed application for State postconviction 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.
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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 was sentenced on January 6, 2006. He then had, at most, one year to
file a delayed application for leave to appeal with the Michigan Court of Appeals. See
Mich. Ct. R. 7.205(F)(3). He did not do so. His conviction and sentence thus became
final on January 6, 2007. Accordingly, Petitioner was required to file his federal habeas
petition on or before January 6, 2008, 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 his state court motion for relief from judgment until July 7,
2008. Thus, the one-year limitations period expired well before Petitioner sought state
post-conviction review. A state court post-conviction motion that is filed following the
expiration of the limitations period cannot toll that period because there is no period
remaining to be tolled. See Hargrove v. Brigano, 300 F.3d 717, 718 n.1 (6th Cir. 2002);
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000); see also Jurado v. Burt, 337
F.3d 638, 641 (6th Cir. 2003). Petitioner’s state post-conviction proceedings did not toll
the running of the limitations period. Furthermore, AEDPA’s one-year 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 does not assert that his claims are based upon newly-discovered facts,
or that his claims arise from newly-created rights recognized by the Supreme Court and
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made retroactive to cases on collateral review. Rather, he asserts that the State
created an impediment to his pursuit of a direct appeal because the trial court ruled that
he did not have a right to first-tier direct review of his sentence. Petitioner’s assertion is
without merit. The state trial court did not so rule. Rather, the court indicated that
Petitioner had the right to seek leave to appeal following his plea. The trial court did not
prevent Petitioner from timely seeking leave to appeal with the Michigan Court of
Appeals. Petitioner could have filed a delayed application for leave to appeal on his
own or with the assistance of appointed counsel until January 6, 2007. The fact that the
trial court did not so advise him or he misunderstood the court’s order does not mean
that the court created an impediment to a proper filing. Even if the trial court’s order
was misleading as to Petitioner’s direct appeal rights, that order did not preclude him
from seeking state collateral review in a timely manner. Petitioner had the opportunity
to file a motion for relief from judgment with the trial court before the expiration of
AEDPA’s limitations period. Petitioner is not entitled to statutory tolling of the one-year
period. His petition is untimely under 28 U.S.C. § 2244(d).
The Supreme Court has 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)); see also Robertson v. Simpson, 624 F.3d 781, 783-84 (6th Cir. 2010). “A
petitioner has the burden of demonstrating that he is entitled to equitable tolling. See
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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 applies 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 has not established that he is entitled to equitable tolling of the oneyear period. He had ample opportunity to seek leave to appeal in the state courts (with
or without the assistance of counsel), to file a motion for relief from judgment in the state
courts, and to seek federal habeas relief in a timely manner. He failed to do so. 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).
The Sixth Circuit has held that a credible claim of actual innocence may also
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 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
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(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. Furthermore, actual innocence means “factual innocence, not
mere legal insufficiency.” Bousley, 523 U.S. at 623. Petitioner makes no such showing.
He has thus failed to demonstrate that he is entitled to equitable tolling of the one-year
period. His petition is untimely and must be dismissed. Habeas relief is not warranted.
IV. CERTIFICATE OF APPEALABILITY
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 court denies a habeas
claim on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the claim
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner
satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). When a court denies relief 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 court was correct in its procedural ruling. Slack, 529 U.S. at 484-85.
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Having conducted such a review, the court concludes that Petitioner has not
made a substantial showing of the denial of a constitutional right as to his habeas claim
and that jurists of reason would not find the court’s procedural ruling that the petition is
untimely debatable. Thus, the court declines to issue a certificate of appealability.
V. CONCLUSION
Based upon the foregoing analysis, the court concludes that Petitioner failed to
file his federal habeas petition within the one-year statute of limitations applicable to
such actions and that he is not entitled to tolling of the one-year period. His petition is
untimely. Accordingly,
IT IS ORDERED that Respondent’s motion for summary judgment is GRANTED
and the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.
Further, the court DECLINES to issue a certificate of appealability.
Finally, the court also DECLINES to grant leave to proceed in forma pauperis on
appeal as any appeal would be frivolous and cannot be taken in good faith. See Fed.
R. App. P. 24(a).
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 29, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 29, 2011, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
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