Stegall v. Rapelje

Filing 23

MEMORANDUM OPINION and ORDER Summarily Dismissing the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RALPH STEGALL,
Petitioner,
CASE NO. 2:12-CV-12415
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
SHANE JACKSON,

Respondent.
__________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Ralph Stegall, (“petitioner”), confined at the Lakeland Correctional Facility
in Coldwater, Michigan, filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for first-degree criminal sexual conduct,
M.C.L.A. 750.520b; and felony-firearm, M.C.L.A. 750.227b. Respondent filed a
motion to dismiss the petition on the ground that petitioner failed to comply with
the statute of limitations contained in 28 U.S.C. § 2244(d)(1). For the reasons
stated below, the petition for a writ of habeas corpus is SUMMARILY
DISMISSED.
I. Background
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court.
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Petitioner filed a direct appeal with the Michigan Court of Appeals. The
Michigan Court of Appeals affirmed petitioner’s conviction on May 18, 2010.
People v. Stegall, No. 290029 (Mich. App. May 18, 2010).
Petitioner did not file a timely application for leave to appeal with the
Michigan Supreme Court. Letters attached to the original petition indicated that
Petitioner’s court-appointed appellate attorney missed the deadline for filing an
application for leave to appeal. On August 26, 2011, petitioner attempted to file a
pro se application for leave to appeal with the Michigan Supreme Court, but the
Clerk of the Court deemed the papers untimely and returned them unfiled. 1
On October 12, 2011, petitioner filed with a post-conviction motion for relief
from judgment with the trial court. 2
While the motion was pending in the trial court, petitioner filed a habeas
petition with this Court, which was signed and dated May 30, 2012. This Court
held the petition in abeyance to permit petitioner to finish exhausting his claims in
the state courts on post-conviction review. Stegall v. Rapelje, No. 12-CV-12415,
2012 WL 4009174 (E.D. Mich. Sept. 12, 2012).

1

See Affidavit from Larry Royster, Clerk of the Michigan Supreme Court.
(Doc. # 20-14).
2

See Wayne County Circuit Court, Register of Actions, Case No. 08012105-01-FC, p. 3 (Doc. # 20-1).
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Stegall v. Jackson, No. 2:12-CV-12415
The trial court denied petitioner’s motion for relief from judgment. People v.
Stegall, No. 08-012105-01-FC (Wayne Cty.Cir.Ct., Mar. 25, 2015). The Michigan
appellate courts denied petitioner leave to appeal. People v. Stegall, No. 329479
(Mich.Ct.App. Mar. 24, 2016); lv. den. 500 Mich. 922, 888 N.W. 2d 70 (2016);
reconsideration den. 500 Mich. 963, 892 N.W. 2d 355 (2017). 3
On May 22, 2017, petitioner filed an amended petition for writ of habeas
corpus and a motion to lift the stay, which was signed and dated May 18, 2017.
The Court granted the motions and the case was reopened.
II. Discussion
Respondent filed a motion to dismiss the petition for writ of habeas corpus
on the ground that the petition was not filed in compliance with the statute of
limitations. In the statute of limitations context, “dismissal is appropriate only if a
complaint 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).

3

Respondent argues that the petition is also subject to dismissal because
petitioner did not comply with the terms of the stay order in that he failed to return
to this Court within sixty days of the Michigan Supreme Court denying petitioner
leave to appeal on December 28, 2016. Respondent ignores that the Michigan
Supreme Court denied petitioner’s motion for reconsideration on May 4, 2017.
Petitioner’s motion to lift the stay was filed within sixty days of that date, thus, the
current petition is not subject to dismissal on that basis.
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Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one
year statute of limitations shall apply 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 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.
28 U.S.C. § 2244(d)(1).
Although not jurisdictional, the AEDPA’s one year limitations period
“effectively bars relief absent a showing that the petition’s untimeliness should be
excused based on equitable tolling and actual innocence.” See Akrawi v. Booker,
572 F. 3d 252, 260 (6th Cir. 2009). 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).

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The Michigan Court of Appeals affirmed petitioner’s conviction on May 18,
2010. Petitioner's application for leave to appeal was rejected as untimely by the
Michigan Supreme Court.
If a habeas petitioner appeals to the Michigan Supreme Court, but does not
petition the United States Supreme Court for a writ of certiorari, his or her
judgment of conviction is finalized when the time for taking an appeal to the
United States Supreme Court expires. The one-year statute of limitations does
not begin to run until the day after the petition for a writ of certiorari was due in
the United States Supreme Court. See Jimenez v. Quarterman, 555 U.S. 113,
119 (2009). Under Rule 13 of the Supreme Court Rules, a petition for a writ of
certiorari “is timely when it is filed with the Clerk of this Court within 90 days after
entry of judgment.” Sup.Ct. R. 13.
However, when, as in this case, a habeas petitioner only appeals his
judgment of conviction to the Michigan Court of Appeals and fails to properly or
timely file an application for leave to appeal to the Michigan Supreme Court, the
additional ninety days for filing an appeal to the United States Supreme Court is
not taken into account. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012)(clarifying that when a petitioner does “not appeal to the State’s highest
court, his judgment [becomes] final when his time for seeking review with the
State’s highest court expire[s]”).
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Stegall v. Jackson, No. 2:12-CV-12415
Petitioner had fifty-six days to file an appeal in the Michigan Supreme
Court, the highest court in the State. M.C.R. 7.302(C). The expiration of the
fifty-six days represents the expiration of the time for seeking direct review of
petitioner’s judgment of conviction, therefore, the one-year statute of limitations
began to run at that time. Gonzalez, 565 U.S. at 150.
Because petitioner did not file a timely application for leave to appeal to the
Michigan Supreme Court, his conviction became final, for purposes of §
2244(d)(1)(A), on July 13, 2010, when the time for seeking leave to appeal with
the Michigan Supreme Court expired. See Brown v. McKee, 232 F. Supp. 2d 761,
765 (E.D. Mich. 2002); Erwin v. Elo, 130 F. Supp. 2d 887, 889 (E.D. Mich. 2001).
Petitioner had until July 13, 2011 to timely file his petition for writ of habeas
corpus, unless the limitations period was somehow tolled.
Petitioner argues in his reply brief that a state created impediment
prevented him from filing his habeas petition on time. Petitioner claims in his
original and amended petitions that his appellate attorney, Douglas Baker of the
State Appellate Defender Office, had promised to file an application for leave to
appeal to the Michigan Supreme Court on petitioner’s behalf, but failed to do so. 4

4

See Letter from Douglas W. Baker, dated May 20, 2010, attached to the
original petition for writ of habeas corpus.
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When a federal habeas petitioner relies on § 2244(d)(1)(B), which delays
the running of the AEDPA’s one year statute of limitations when an impediment
resulting from unlawful state action has prevented a habeas petitioner from timely
filing his or her habeas petition, the petitioner must allege or show facts which
demonstrate that he or she “was so inhibited by the state’s action that he [or she]
was unable to file and state a cause of action before the limitation period
expired.” Redmond v. Jackson, 295 F. Supp. 2d 767, 772 (E.D. Mich. 2003)
(quoting Neuendorf v. Graves, 110 F. Supp. 2d 1144, 1153 (N.D. Iowa 2000)).
“The ‘plain language’ of § 2244(d)(1)(B) ‘makes clear that whatever constitutes an
impediment must prevent a prisoner from filing his petition.’” Id. (quoting Lloyd v.
Van Natta, 296 F.3d 630, 633 (7th Cir. 2002)(emphasis in original)).
Appellate counsel’s failure to file a timely application for leave to appeal to
the Michigan Supreme Court would not amount to unlawful state action that
would delay the commencement of the one year limitations period pursuant to §
2244(d)(1)(B). A criminal defendant does not have a constitutional right to
counsel to pursue discretionary state appeals. Wainwright v. Torna, 455 U.S.
586, 587 (1982). “The right to appointed counsel extends to the first appeal of
right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Because
there is no constitutional right to the effective assistance of counsel on a
discretionary appeal, petitioner cannot claim that counsel was ineffective for
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failing to file the application for leave to appeal with the Michigan Supreme Court.
Wainwright v. Torna, 455 U.S. at 587-588; Harris v. Stegall, 157 F. Supp. 2d 743,
750 (E.D. Mich. 2001). Petitioner did not have a constitutional right to the
effective assistance of counsel in pursuing a discretionary appeal with the
Michigan Supreme Court, thus, his appellate counsel’s failure to file an
application for leave to appeal with the Michigan Supreme Court would not
amount to an unconstitutional impediment within the meaning of § 2244(d)(1)(B)
that would delay the start of the one year limitations period. See e.g. Kerchee v.
Jones, 428 F. App’x. 851, 859 (10th Cir. 2011).
Moreover, even if appellate counsel’s failure to file a timely application for
leave to appeal to the Michigan Supreme Court delayed the start of the limitations
period pursuant to § 2244(d)(1)(B), the petition is still untimely. Mr. Baker sent a
letter to petitioner dated July 29, 2010, in which he indicated that he had met with
petitioner in prison that prior Monday to inform petitioner that he had missed the
deadline for filing an application for leave to appeal to the Michigan Supreme
Court. 5 Petitioner knew at this point that no application for leave to appeal would
be filed on his behalf with the Michigan Supreme Court, yet he waited more than
one year from this date to attempt to file such an application in the Michigan

5

See Letter from Douglas W. Baker, dated July 29, 2010, attached to the
original petition for writ of habeas corpus.
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Supreme Court or to initiate state or federal post-conviction proceedings.
“Section 2244(d)(1)(B) requires a causal relationship between the
unconstitutional state action and being prevented from filing the petition.”
Winkfield v. Bagley, 66 F. App’x. 578, 583 (6th Cir. 2003)(quoting Dunker v.
Bissonnette, 154 F. Supp. 2d 95, 105 (D. Mass. 2001)). Even if petitioner could
invoke 2244(d)(1)(B) to delay the commencement of the one year limitations
period, that impediment would have been removed no later than July 29, 2010,
when petitioner was informed by appellate counsel that the time period for filing
an application for leave to appeal with the Michigan Supreme Court had expired.
Petitioner has offered no explanation why he waited more than one year from this
date to initiate any type of legal action in his case.
Petitioner filed a post-conviction motion for relief from judgment on October
12, 2011, after the one year limitations period had already expired. A state court
post-conviction motion that is filed following the expiration of the limitations period
cannot toll that period pursuant to 28 U.S.C. § 2244(d)(2) because there is no
period remaining to be tolled. See Jurado v. Burt, 337 F. 3d 638, 641 (6th Cir.
2003); see also Hargrove v. Brigano, 300 F. 3d 717, 718, n. 1 (6th Cir. 2002).
The current petition is untimely.
The AEDPA’s statute of limitations “is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). However, “the
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doctrine of equitable tolling is used sparingly by federal courts.” See Robertson v.
Simpson, 624 F.3d 781, 784 (6th Cir. 2010). The burden is on a habeas
petitioner to show that he or she is entitled to the equitable tolling of the one year
limitations period. Id.
Petitioner’s claim that his appellate counsel failed to file an application for
leave to appeal to the Michigan Supreme Court would not toll the one year
limitations period. Petitioner did not have a constitutional right to the effective
assistance of counsel in pursuing a discretionary appeal with the Michigan
Supreme Court, thus, his appellate counsel’s failure to file an application for leave
to appeal with the Michigan Supreme Court would not equitably toll the limitations
period. See e.g. Kerchee v. Jones, 428 F. App’x. at 859.
Petitioner further argues in his reply brief that claims are meritorious. The
AEDPA’s statute of limitations must be complied with by a habeas petitioner
before a federal court can address the merits of the habeas petition itself. See
Sweger v. Chesney, 294 F. 3d 506, 518-19 (3rd Cir. 2002). A merits decision is
unnecessary where a district court denies a habeas petition on statute of
limitations grounds. See Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007).
Because petitioner’s habeas application is untimely, the Court would not err in
declining to address the merits of petitioner’s substantive claims.

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The one year statute of limitations may be equitably tolled based upon a
credible showing of actual innocence under the standard enunciated in Schup v.
Delo, 513 U.S. 298 (1995). McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
The Supreme Court has cautioned that “tenable actual-innocence gateway pleas
are rare[.]” Id. “[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
(quoting Schlup, 513 U.S., at 329). Moreover, in determining whether petitioner
makes out a compelling case of actual innocence, so as to toll the AEDPA’s
limitations period, “‘the timing of the [petition]’ is a factor bearing on the ‘reliability
of th[e] evidence’ purporting to show actual innocence.” Id. (quoting Schlup, 513
U.S. at 332). For an actual innocence exception to be credible under Schlup,
such a claim requires a habeas petitioner to support his or her allegations of
constitutional error “with new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence--that was not presented at trial.” Schlup, 513 U.S. at 324.
Petitioner’s case falls outside of the actual innocence tolling exception,
because petitioner has presented no new, reliable evidence to establish that he
was actually innocent of the crime charged. See Ross v. Berghuis, 417 F. 3d 552,
556 (6th Cir. 2005); Holloway, 166 F. Supp. 2d at 1191.
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III. Conclusion
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,
Rules Governing Section 2254 Proceedings.
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 quotes and citations omitted).
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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
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the
denial of a constitutional right, a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits. Foster,
208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court’s
resolution of the habeas petition, the issues are not frivolous; therefore, an appeal
could be taken in good faith and petitioner may proceed in forma pauperis on
appeal. Id.

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IV. ORDER
IT IS ORDERED that Respondent's Motion To Dismiss (Doc. # 19) is
GRANTED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner shall be GRANTED leave to
appeal in forma pauperis.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: November 30, 2017

I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on November 30, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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