Jones v. Scutt

Filing 10

OPINION and ORDER Granting MOTION for Summary Judgment 6 ; dismissing the petition for writ of habeas corpus 1 ; and Denying a Certificate of Appealability. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICKY JONES,
Petitioner,
v.

Case Number 2:12-CV-11770
Honorable George Caram Steeh

DEBRA SCUTT,
Respondent.
________________________/
OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION
FOR SUMMARY JUDGMENT; (2) DISMISSING THE PETITION FOR WRIT OF
HABEAS CORPUS; AND (3) DENYING A CERTIFICATE OF APPEALABILITY
Ricky Jones, ("Petitioner"), presently incarcerated at the G. Robert Cotton
Correctional Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The petition challenges his imprisonment resulting from his conviction for two
counts of conspiracy to commit first-degree murder, MICH. COMP. LAWS § 750.157a. This
matter is before the Court on Respondent's motion for summary judgment, in which she
asks the Court to dismiss the petition as untimely. Petitioner has filed a response to the
motion. For the reasons set forth herein, the Court agrees with Respondent and dismisses
the petition for failure to comply with the one-year statute of limitations set forth in 28
U.S.C. § 2244(d). The Court also denies a certificate of appealability.
I. Procedural History
Petitioner was found guilty on September 10, 1982, of the above offenses following
a jury trial in Barry Circuit Court.

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Petitioner filed a direct appeal in the Michigan Court of Appeals, raising the following
claims: (1) the prosecutor elicited testimony that Petitioner was a fugitive; (2) the prosecutor
failed to preserve a tape recording; (3) the trial court erroneously denied Petitioner’s motion
for a directed verdict; (4) there was insufficient evidence to sustain the conspiracy charge;
(5) the trial court erred in failing to give a lesser-include-offense jury instruction; and (6) the
trial court erred in imposing a mandatory life sentence.
On October 17, 1984, the Michigan Court of Appeals issued an unpublished opinion
affirming Jones’s two convictions of conspiracy to commit first-degree murder, but reversed
his two convictions of incitement to commit first degree murder. People v. Jones, No. 68279
(Mich. Ct. App. Oct. 17, 1984).
Petitioner then filed an application for leave to appeal in the Michigan Supreme
Court. The court remanded the case back to the Court of Appeals for reconsideration in
light of an intervening decision relevant to Petitioner’s sentencing claim. People v. Jones,
403 N.W.2d 809 (Mich. Apr. 21, 1987). On remand, the Michigan Court of Appeals issued
a new opinion holding that Petitioner was appropriately sentenced to non-parolable life.
People v. Jones, 423 N.W.2d 590 (Mich. App. 1988).
Petitioner appealed the decision, and the Michigan Supreme Court reversed the
decision of the Michigan Court of Appeals, in effect turning Petitioner’s sentence into a
parolable life sentence. People v. Jones, 446 N.W.2d 151 (Mich. 1989).
On November 8, 1991, Jones filed a motion for relief from judgment with the trial
court. The motion raised the following claims: (1) the trial court failed to hold an entrapment
hearing; (2) the trial court failed to instruct the jury on the unreliability of police informant
testimony; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of
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appellate counsel. The trial court summarily dismissed this motion by order dated
November 18, 1991. There is no indication in the record that Petitioner attempted to
appeal this decision.
On September 27, 1993, Petitioner filed another motion for relief from judgment.
The motion raised the following claim: (1) the conspiracy statute is unconstitutionally
overbroad as written. The trial court again summarily dismissed this motion by order dated
October 8, 1993.
Petitioner appealed this decision by filing an application for leave to appeal in the
Michigan Court of Appeals. The Michigan Court of Appeals denied Jones’s application by
order dated March 25, 1994. Petitioner then filed an application for leave to appeal in the
Michigan Supreme Court, but it was also denied. People v. Jones, 522 N.W.2d 637 (Mich.
1994) (unpublished table decision).
On August 12, 1999, Jones filed his third motion for relief from judgment. The motion
raised the following claims: (1) the reasonable doubt jury instruction was erroneous; (2)
ineffective assistance of trial counsel; and (3) ineffective assistance of appellate counsel.
The trial court again summarily denied the motion by order dated August 30, 1999.
Petitioner filed a delayed application for leave to appeal in the Michigan Court of
Appeals. On November 30, 2000, the Michigan Court of Appeals dismissed the application
without prejudice because Petitioner had not paid the filing fee or submit an application that
conformed with the court rules. The record does not indicate that Petitioner appealed this
order or that he has taken any other action in the Michigan courts for the last twelve years.
On August 22, 2011, Petitioner filed a grievance with the Michigan Department of
Corrections alleging that his prison was overcrowded and dangerous, he was denied proper
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medical care, medical experiments were performed on him, money was extorted from him,
and he was denied adequate nutrition. As a remedy, Petitioner requested his release from
custody. On August 23, 2011, the Grievance Coordinator at Petitioner’s facility denied the
grievance because it was vague. The record does not indicate that Petitioner pursued this
claim any further with the Department of Corrections.
Petitioner dated the present habeas petition April 16, 2012. It raises four claims: (1)
the trial court and Michigan Department of Correction have failed to comply with the order
of the Michigan Supreme Court that his sentence be made parolable; (2) Ex post facto
change in the form of execution of sentence by the agents of the state due to worsening
prison conditions; (3) Ineffective assistance of trial and appellate counsel; and (4)
prosecutorial misconduct.
II. Discussion
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one year
statute of limitations applies 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 runs 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

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(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. See Holloway v. Jones, 166 F. Supp. 2d 1185,
1187 (E.D. Mich. 2001).
Because Petitioner's conviction became final prior to the enactment of the AEDPA
on April 24, 1996, he had one year from the effective date of the Act, or until April 24, 1997,
to file his habeas application. See McClendon v. Sherman, 329 F.3d 490, 494-95 (6th Cir.
2003); Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002). Petitioner's application was not
filed until approximately15 years after the expiration of this one-year grace period. Thus,
the petition is untimely, unless the limitations period was tolled for any reason.
The Supreme Court has held 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, 177 L. Ed. 2d 130 (2010). The Court cautioned 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).
Petitioner has not been diligently pursuing his rights. He offers no reason why he
has waited decades before challenging his conviction. His first claim asserts that he has
been entitled to a parolable life sentence since the Michigan Supreme Court decision in
1988, but he offers no reason why he waited until now to assert this claim in Federal court.

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Similarly, Petitioner’s third and fourth claims allege errors occurring at trial and on direct
appeal that have been known to Petitioner for decades. Petitioner simply does not attempt
to identify any extraordinary circumstances that prevented him from complying with section
2244(d)(1), and therefore he has not shown any basis for equitable tolling.
From mid-1999 to 2000 Petitioner did have a motion for relief from judgment and
appeal pending in the state courts. This period statutorily tolled the statute of limitations
under section 2244(d)(2). But this post-conviction proceeding did not reset the limitations
period, and it does not explain the dozen years Petitioner waited after its denial to file his
habeas petition. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).
Petitioner’s response to the motion attempts to side-step these problems by
asserting that his second claim–alleging an ex post facto violation due to worsening prison
conditions–is based on new facts. The argument is unavailing.
First, a habeas petition is not the proper vehicle for challenging the conditions of
confinement. Habeas corpus is not available to prisoners who are complaining of
mistreatment during their legal incarceration. Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir.
1979). Complaints that involve conditions of confinement "do not relate to the legality of the
petitioner's confinement, nor do they relate to the legal sufficiency of the criminal court
proceedings which resulted in the incarceration of the petitioner." Maddux v. Rose, 483 F.
Supp. 661, 672 (E.D. Tenn. 1980). A state inmate who wishes to challenge the conditions
of confinement must bring his action under 42 U.S.C. § 1983. Austin v. Bell, 927 F. Supp.
1058, 1066 (M.D. Tenn. 1996).
Second, for purposes of determining when the statute of limitations began to run
with respect to this claim under section 2244(d)(D), Petitioner has not alleged when the
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factual predicate of the claim arose. That is, he has alleged when prison conditions
became bad enough to constitute an alleged constitutional violation entitling him to release.
If anything, Petitioner’s response states that the Michigan Department of Corrections has
been “in a continuous state of emergency overcrowding since 1985.” Response, at 4.
Accordingly, it appears that Petitioner could, with the exercise of due diligence, brought this
claim decades before he filed his grievance.
Because Petitioner filed his habeas petition decades after the one-year limitations
period expired, and because he has not shown any grounds for tolling, his petition is time
barred under 28 U.S.C. § 2244(d).
III. Conclusion
Based on the foregoing analysis, the Court GRANTS Respondent's motion for
summary judgment and DISMISSES the petition for writ of habeas corpus.
Before petitioner may appeal this Court's dispositive 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 federal district court denies
a habeas claim on procedural grounds without addressing the claim's merits, a certificate
of appealability should issue, and an appeal of the district court's order may be taken, if the
petitioner shows 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). When a plain procedural bar is present and the
district court is correct to invoke it to dispose of the matter, a reasonable jurist could not
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conclude either that the district court erred in dismissing the petition or that the petition
should be allowed to proceed. In such a case, no appeal is warranted. Id. "The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; See also
Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
After conducting the required inquiry and for the reasons stated herein, the Court is
satisfied that jurists of reason would not find the Court's procedural ruling debatable. No
certificate of appealability is warranted in this case. Accordingly, the Court DENIES a
certificate of appealability.
IT IS SO ORDERED.
Dated: December 4, 2012
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record and
on Ricky Jones #170445, G. Robert Cotton Correctional
Facility, 3500 N. Elm Road, Jackson, MI 49201, on
December 4, 2012, by electronic and/or ordinary mail.
s/Barbara Radke
Deputy Clerk

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