Bailey v. Rapelje
OPINION AND ORDER granting 7 Respondent's Motion to Dismiss and Denying a Certificate of Appealability. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
ANTONIO MONTEZ BAILEY, #336690,
Case No. 2:11-cv-14680
OPINION AND ORDER
GRANTING RESPONDENT’S MOTION TO DISMISS AND
DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Antonio Montez Bailey has filed an application for the writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s
Jackson County convictions and sentence of twenty to fifty years for armed robbery and
bank robbery. Respondent argues in a motion to dismiss the petition that Petitioner’s
claims are time-barred. The court agrees. Consequently, Respondent’s motion will be
granted, and the habeas petition will be dismissed.
On August 4, 2005, Petitioner pleaded guilty in Jackson County Circuit Court to
one count of armed robbery, Mich. Comp. Laws § 750.529, and one count of bank
robbery, Mich. Comp. Laws § 750.531. In return, the prosecutor dismissed an
additional count of armed robbery and an additional count of bank robbery. On
September 8, 2005, the trial court sentenced Petitioner as a habitual offender, third
offense, to two concurrent terms of twenty to fifty years in prison. Petitioner filed two
motions for re-sentencing in 2006, but the trial court denied both motions.
In an appeal from his convictions and sentence, Petitioner alleged that (1) he
was entitled to re-sentencing because his plea was induced by an unfulfilled promise of
leniency, (2) his plea was illusory, unintelligent, and involuntary, and (3) the sentencing
guidelines were mis-scored. On February 12, 2007, a three-judge panel of the
Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds
presented.” See People v. Bailey, No. 274556 (Mich. Ct. App. Feb. 12, 2007). On
Sept. 21, 2007, the Michigan Supreme Court denied leave to appeal because it was not
persuaded to review the issues.1 See People v. Bailey, 738 N.W.2d. 229 (Mich. 2007)
(table). Petitioner’s convictions became final ninety days later on December 20, 2007.
On August 26, 2008, Petitioner filed his first federal habeas corpus petition in this
District. On February 2, 2009, while the habeas petition was still pending, Petitioner
filed a motion for relief from judgment in state court. This court subsequently dismissed
Petitioner’s habeas petition without prejudice at Petitioner’s request so that he could
exhaust state remedies. The court stated in its order of dismissal that, if Petitioner
wished to seek federal habeas relief after exhausting state remedies, he would have to
file a new and timely petition in federal court. See Bailey v. Rapelje, No. 2:08-cv-13687
(E.D. Mich. Feb. 24, 2009).
The state court then denied Petitioner’s motion for relief from judgment because
Petitioner had raised some of his claims on appeal and he failed to show “cause and
Justice Marilyn Kelly voted to remand the case for resentencing.
prejudice” for not raising his remaining claims on appeal. Two judges of a three-judge
panel of the Michigan Court of Appeals denied leave to appeal the trial court’s decision
because Petitioner had failed to establish entitlement to relief under Michigan Court
Rule 6.508(D).2 See People v. Bailey, No. 296088 (Mich. Ct. App. May 10, 2010). On
March 8, 2011, the Michigan Supreme Court denied leave to appeal for the same
reason. See People v. Bailey, 794 N.W.2d 593 (Mich. 2011) (table).
On October 20, 2011, Petitioner signed and dated the present habeas corpus
petition. He alleges that (1) his guilty plea was involuntary and illusory and violated
double jeopardy principles, (2) the Michigan sentencing guidelines were improperly
scored, and (3) he was denied effective assistance of trial and appellate counsel.
Respondent urges the court to dismiss the petition for failure to comply with the oneyear statute of limitations for habeas petitions.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established
a one-year period of limitation for state prisoners to file a federal habeas corpus petition.
Wall v. Kholi, __ U.S. __, __, 131 S. Ct. 1278, 1283 (2011) (citing 28 U.S.C. §
2244(d)(1)). The period of limitation runs from the latest of four specified dates:
(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
The third judge voted to grant the delayed application for leave to appeal.
(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
28 U.S.C. § 2244(d)(1)(A)-(D). The limitation period is tolled “during the pendency of a
‘properly filed application for State post-conviction or other collateral review with respect
to the pertinent judgment or claim.’” Kholi, 131 S. Ct. at 1283 (quoting 28 U.S.C. §
Petitioner is not relying on a new and retroactive constitutional right or on newly
discovered facts, and he is not suggesting that an impediment created by state action
prevented him from filing his habeas petition earlier. Cf. 28 U.S.C. §§ 2244(d)(1)(B-D).
Consequently, the statute of limitations began to run when Petitioner’s convictions
“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). “Direct review,” for purposes of subsection
2244(d)(1)(A), concludes when the availability of direct appeal to the state courts and to
the United States Supreme Court has been exhausted. Jimenez v. Quarterman, 555
U.S. 113, 119 (2009).
A petition for writ of certiorari to review a judgment entered by a state’s highest
court must be filed in the United States Supreme Court within ninety days after entry of
the judgment. Sup. Ct. R. 13.1. For petitioners who do not pursue direct review to the
United States Supreme Court, “the judgment becomes final at the ‘expiration of the time
for seeking such review’ – when the time for pursuing direct review in [the Supreme]
Court, or in state court, expires.” Gonzalez v. Thaler, __ U.S. __, __, 132 S. Ct. 641,
Petitioner did not apply for a writ of certiorari in the United States Supreme Court
after the Michigan Supreme Court denied leave to appeal on September 21, 2007.
Therefore, his convictions became final ninety days later on December 20, 2007, when
the deadline expired for seeking a writ of certiorari in the United States Supreme Court.
The one-year period of limitation began to run on the following day, December
21, 2007, and it ran for 249 days, that is, until August 26, 2008, when Petitioner filed his
first federal habeas corpus petition. The limitation period ordinarily is not tolled while a
federal habeas corpus petition is pending in federal court, Duncan v. Walker, 533 U.S.
167, 181-82 (2001), but
neither the [Supreme] Court's narrow holding [in Duncan v. Walker], nor
anything in the text or legislative history of AEDPA, precludes a federal
court from deeming the limitations period tolled for such a petition as a
matter of equity. . . . Furthermore, a federal court might very well
conclude that tolling is appropriate based on the reasonable belief that
Congress could not have intended to bar federal habeas review for
petitioners who invoke the court's jurisdiction within the 1–year interval
prescribed by AEDPA.
Id. at 183 (Stevens, J., concurring in part and concurring in the judgment).
Courts in this District have found it appropriate to equitably toll the time during
which a federal habeas corpus petition was pending in federal court. See Johnson v.
Warren, 344 F. Supp.2d 1081, 1088-89 (E.D. Mich. 2004) (Gadola, J.); Corbin v.
Straub, 156 F. Supp.2d 833, 837-38 (E. D. Mich. 2001) (Edmunds, J.). This court
therefore equitably tolls the entire time that Petitioner’s first habeas corpus petition was
pending, that is, from August 26, 2008, to February 24, 2009.
Petitioner filed his motion for relief from judgment in state court while his first
habeas petition was pending in this court. Consequently, the limitation period also was
tolled from February 2, 2009, when Petitioner filed his post-conviction motion in state
court until March 8, 2011, when the Michigan Supreme Court denied leave to appeal the
trial court’s decision on petitioner’s motion. 28 U.S.C. § 2244(D)(2); Carey v. Saffold,
536 U.S. 214, 219-20 (2002).
The instant petition nevertheless is untimely, because the limitation period ran
249 days before Petitioner filed his first habeas petition in this court. The limitation
period also ran 225 days after the Michigan Supreme Court denied leave to appeal on
March 8, 2011, and before Petitioner filed his second habeas petition on October 20,
The limitation period ran for a total of 474 days or more than one year. Thus, the
habeas petition is untimely, absent equitable tolling.
B. Equitable Tolling
The statute of limitations in habeas cases “is subject to equitable tolling in
appropriate cases.” Holland v. Florida, __ U.S. __, __, 130 S. Ct. 2549, 2560 (2010).
But “a ‘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 Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50
(6th Cir. 2011) (adopting Holland’s two-part test for determining whether a habeas
petitioner is entitled to equitable tolling).
Petitioner urges the court to deny Respondent’s motion on grounds that he has
made a good faith effort to file a timely petition and he believed that the one-year
limitation period began to run from the court’s dismissal of his first petition on February
24, 2009. Equitable tolling could be appropriate if the court had affirmatively misled
Petitioner as to whether the statute of limitations had run. Pliler v. Ford, 542 U.S. 225,
235 (2004) ) (O’Connor, J., concurring). But the court did not mislead Petitioner. It
warned him on December 30, 2008, that 252 days of the one-year limitation period had
already expired and that only 113 days of the limitation period remained. See Bailey v.
Rapelje, No. 2:08-cv-13687 (E.D. Mich. Dec. 30, 2008) (order denying Petitioner’s
motion for a stay and to hold the first habeas petition in abeyance).
Petitioner subsequently filed his motion for relief from judgment in state court.
The motion tolled the limitation period pursuant to 28 U.S.C. § 2244(d)(2), but it did not
re-start the clock. McMurray v. Scutt, 136 F. App’x 815, 817 (6th Cir. 2005) (citing
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)). And Petitioner’s ignorance of the
law regarding the limitation period “is not sufficient to warrant equitable tolling.” Ata v.
Scutt, 662 F.3d 736, 743 n. 7 (6th Cir. 2011) (quoting Griffin v. Rogers, 399 F.3d 626,
637 (6th Cir. 2005) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)). The
court therefore declines to equitably toll the limitation period for the time that the statute
of limitations ran before Petitioner filed his first habeas corpus petition.
IV. CERTIFICATE OF APPEALABILITY
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
A certificate of appealability may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
habeas petitioner must “sho[w] 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.’”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 1983)).
When, as here, “the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition 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. In this case, the court believes reasonable jurists
would not find the court’s procedural ruling debatable, nor conclude that the petition
states a valid claim of the denial of a constitutional right.
Petitioner filed his habeas petition more than one year after his convictions
became final, and he is not entitled to equitable tolling of the limitation period.
IT IS ORDERED that Respondent’s motion to dismiss [dkt. #7] is GRANTED and
the petition for a writ of habeas corpus [dkt. #1] is DISMISSED with prejudice for failure
to comply with the statute of limitations.
IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 29, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, June 29, 2012, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
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