Devine v. Rapelje

Filing 15

OPINION and ORDER DENYING RESPONDENT'S 12 MOTION TO DISMISS THE PETITION AND DIRECTING HIM TO FILE AN ANSWER TO PETITIONER'S CLAIMS Signed by District Judge Linda V. Parker. (AFla)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH MARTIN DEVINE,
Petitioner,
v.

Civil Case No. 12-cv-13125
Honorable Linda V. Parker

WILLIS CHAPMAN,
Respondent.
__________________________/
OPINION AND ORDER DENYING RESPONDENT’S MOTION
TO DISMISS THE PETITION AND DIRECTING HIM TO
FILE AN ANSWER TO PETITIONER’S CLAIMS
Petitioner Joseph Martin Devine is a state prisoner in the custody of the
Michigan Department of Corrections. Petitioner commenced this case in 2012 by
filing a habeas corpus petition under 28 U.S.C. § 2254 and a motion to hold the
petition in abeyance. (See ECF Nos. 1, 2.) At the time, the case was assigned to
United States District Judge Avern Cohn, who granted Petitioner’s motion to hold
his petition in abeyance and closed the case for administrative purposes. (See ECF
No. 3.) Over the next several years, Petitioner unsuccessfully pursued postconviction remedies in state court.
On August 26, 2019, Petitioner returned to federal court and filed another
habeas corpus petition, which was later filed in this case. (See ECF No. 6.) Judge
Cohn then re-opened this case and ordered the State to file a responsive pleading.

(See ECF No. 7.) The case subsequently was reassigned to the undersigned, and
on November 9, 2020, Respondent filed a motion to dismiss the petition for failure
to comply with the one-year statute of limitations. (See ECF No. 12.)
Although Petitioner filed his initial petition in 2012 with only eight days
remaining on the statute of limitations, he has complied with the conditions set
forth in Judge Cohn’s orders, and his post-conviction motions in state court tolled
the limitations period. Therefore, the Court finds that Petitioner’s 2019 petition
was filed in a timely manner. Accordingly, the Court is denying Respondent’s
motion and ordering Respondent to file an answer to Petitioner’s claims.
I. Background
A. The Convictions, Sentence, and Direct Appeal
On July 31, 2009, a jury in the Circuit Court for Oakland County, Michigan
found Petitioner guilty of three counts of third-degree criminal sexual conduct in
violation of Michigan Compiled Laws § 750.520d(1)(b) (sexual penetration of
another person, using force or coercion). (See 7/31/09 Trial Tr. at 105-106, ECF
No. 13-5 at Pg ID 250.) On August 24, 2009, the trial court sentenced Petitioner as
a fourth habitual offender to three concurrent terms of twenty-five to forty years in
prison. (See 8/24/09 Sentencing Tr. at 18-19, ECF No. 13-6 at Pg ID 270-271);
8/24/09 Am. J. of Sentence, ECF No. 13-14 at Pg ID 437-438).

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Petitioner appealed his convictions and sentence on the grounds that the
evidence at trial was insufficient to support his convictions and that his sentence
was cruel and unusual punishment. (See ECF No. 13-14 at Pg ID 358-359.) In a
pro se supplemental brief, Petitioner argued that his trial attorney was ineffective
for failing to move to suppress inadmissible evidence and that the trial court
violated his right to due process by failing to give a proper cautionary jury
instruction and by empaneling an anonymous jury. The Michigan Court of
Appeals rejected these claims on direct appeal and affirmed Petitioner’s
convictions and sentence in an unpublished per curiam opinion. See People v.
Devine, No. 294568, 2010 WL 4673656 (Mich. Ct. App. Nov. 18, 2010).
Petitioner raised the same claims and four new issues in an application for
leave to appeal in the Michigan Supreme Court. (See ECF No. 13-15 at Pg ID
450-476.) On April 25, 2011, the Michigan Supreme Court denied leave to appeal
because it was not persuaded to review the questions presented. See People v.
Devine, 796 N.W.2d 88 (Mich. 2011). Petitioner did not seek a writ of certiorari in
the United States Supreme Court, and the deadline for filing such a petition was
July 24, 2011, ninety days after the Michigan Supreme Court’s judgment. See Sup.
Ct. R. 13.1 (stating that “a petition for a writ of certiorari to review a judgment in
any case . . . entered by a state court of last resort . . . is timely when it is filed with
the Clerk of this Court within 90 days after entry of the judgment”).
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B. The Initial Petition
On July 16, 2012, Petitioner filed his initial petition for the writ of habeas
corpus through counsel. (See ECF No. 1.) In a motion filed with the habeas
petition, Petitioner’s counsel asked the Court to hold the habeas petition in
abeyance for ninety days while counsel completed his review of Petitioner’s case
and either submitted a post-conviction motion in state court or filed a brief in
support of the habeas petition. (See ECF No. 2.)
On July 19, 2012, Judge Cohn granted Petitioner’s motion to hold his
petition in abeyance, imposed time limits on Petitioner, and closed the case for
administrative purposes. (See ECF No. 3.) Judge Cohn conditioned the stay on
Petitioner doing two things: (1) filing a post-conviction motion for relief from
judgment in state court within ninety days of the order; and (2) returning to federal
court with an amended petition and motion to lift the stay within ninety days of
exhausting state remedies. (See id. at Pg ID 12.) In a subsequent order, Judge
Cohn extended the deadline for filing a post-conviction motion in state court to
October 31, 2012. (See ECF No. 5.)
C. State Collateral Review
On October 31, 2012, Petitioner filed a motion for relief from judgment in
the state trial court (see ECF No. 13-8), and on January 20, 2015, he filed a
supplemental brief in support of his motion (see ECF No. 13-9). Over two years
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later, on May 12, 2017, the state trial court denied Petitioner’s motion without
prejudice for failure to comply with Michigan Court Rules 6.502(C) and
2.119(A)(2). The court stated that it was not aware of the motion until someone
delivered a copy of the motion to the judge’s chambers on May 3, 2017. See
People v. Devine, No. 2009-226911-FH (Oakland Cnty. Cir. Ct. May 12, 2017);
(ECF No. 13-10.)
Petitioner did not appeal the trial court’s decision, and the deadline for
seeking leave to appeal the trial court’s decision in the Michigan Court of Appeals
expired on November 12, 2017. See Mich. Ct. R. 7.205(A)(2) (indicating that an
application for leave to appeal in a criminal case involving a final order must be
filed within 6 months after entry of the order). On November 15, 2017, however,
Petitioner filed another motion for relief from judgment (see ECF No. 13-12), and
on March 8, 2018, the trial court denied Petitioner’s motion. See People v. Devine,
No. 2009-226911-FH (Oakland Cnty. Cir. Ct. Mar. 8, 2018); (ECF No. 13-13.)
Petitioner raised several claims about his sentence and former attorneys in a
delayed application for leave to appeal the trial court’s decision. (See ECF No. 1316 at Pg ID 565-604.) On January 16, 2019, the Michigan Court of Appeals
denied Petitioner’s delayed application because he failed to establish that the trial
court erred in denying his motion for relief from judgment. See People v. Devine,
No. 345387 (Mich. Ct. App. Jan. 16, 2019); (ECF No. 13-16 at Pg ID 564.)
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Petitioner then applied for leave to appeal in the Michigan Supreme Court.
(See ECF No. 13-17 at Pg ID 828-835.) On July 29, 2019, the Michigan Supreme
Court denied leave to appeal due to Petitioner’s failure to establish entitlement to
relief under Michigan Court Rule 6.508(D). See People v. Devine, 931 N.W.2d
339 (Mich. 2019).
D. The Second Habeas Petition, Motion to Dismiss, and Reply
On August 22, 2019, Petitioner signed and submitted another federal habeas
corpus petition. The petition was treated as a new case, but ultimately filed in this
case. (See ECF No. 6.) Judge Cohn then directed the Clerk of Court to re-open
this case and serve the petition on Respondent. (See ECF No. 7.) Respondent
subsequently filed his motion to dismiss the petition (see ECF No. 12), and
Petitioner filed a reply in which he asks the Court to treat his 2019 petition as a
supplement to his 2012 petition. (See ECF No. 14.)
II. Discussion
This case is governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), which establishes a one-year period of limitation for state
prisoners to file a federal habeas corpus petition. Wall v. Kholi, 562 U.S. 545, 550
(2011) (citing 28 U.S.C. § 2244(d)(1)); Sexton v. Wainwright, 968 F.3d 607, 609610 (6th Cir. 2020), cert. denied, 141 S. Ct. 1064 (2021). The one-year limitation
period runs from the latest of the following four dates:
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(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)(A)-(D). “The limitation period is tolled, however, 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, 562
U.S. at 550-51 (quoting 28 U.S.C. § 2244(d)(2)).
Petitioner is not relying on a newly recognized constitutional right or on a
new factual predicate that could not have been discovered through due diligence,
and he has not shown that the State created an impediment to filing a timely
petition. Cf. 28 U.S.C. §§ 2244(d)(1)(B)-(D). Therefore, his conviction became
final at the conclusion of direct review.
Under § 2244(d)(1)(A), “direct review” 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).
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For petitioners who pursue direct review all the way to [the Supreme]
Court, the judgment becomes final at the “conclusion of direct
review”—when [the Supreme] Court affirms a conviction on the
merits or denies a petition for certiorari. For all other petitioners, 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, 565 U.S. 134, 150 (2012). A petition for a writ of certiorari to
review the judgment of a state court of last review must be filed no later than
ninety days after entry of the judgment. Sup. Ct. R. 13.1.
The Michigan Supreme Court denied leave to appeal on direct review on
April 25, 2011, and because Petitioner did not seek a writ of certiorari in the
United States Supreme Court, his conviction became final ninety days later, or on
July 24, 2011. Gonzalez, 565 U.S. at 150; Jimenez, 555 U.S. at 119; Sup. Ct. R.
13.1. The statute of limitations began to run on the following day, see Fed. R. Civ.
P. 6(a)(1)(A); Miller v. Collins, 305 F.3d 491, 495 n.4 (6th Cir. 2002), and it ran
uninterrupted until July 16, 2012, when Petitioner filed his first habeas corpus
petition. By then, only eight days remained on the one-year limitation period.
Judge Cohn, however, held the habeas petition in abeyance and ultimately gave
Petitioner until October 31, 2012, to file a post-conviction motion in state court.
Petitioner complied with Judge Cohn’s order by filing his first motion for
relief from judgment in state court on October 31, 2012. The post-conviction
motion tolled the limitation period. 28 U.S.C. § 2244(d)(2). About four and a half
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years later, on May 12, 2017, the trial court denied Petitioner’s motion without
prejudice because he failed to comply with the Michigan Court Rules. Petitioner
then had six months, until November 12, 2017, to appeal the trial court’s order.
See Mich. Ct. Rule 7.205(A)(2)(a) and Staff Comment to the 2011 Amendment.
Petitioner did not appeal the trial court’s decision, and on November 13,
2017, the statute of limitations resumed running. See Holbrook v. Curtin, 833 F.3d
612, 619 (6th Cir. 2016) (stating that “AEDPA’s one-year statute of limitations
was tolled during the period in which [the habeas petitioner] could have, but did
not, appeal the Michigan Court of Appeals’ denial of his motion for postconviction relief”). The statute ran only two days, however, because on November
15, 2017, Petitioner filed another motion for relief from judgment, which once
again tolled the statute of limitations. The motion remained pending in state court
until July 29, 2019, when the Michigan Supreme Court denied leave to appeal. The
statute of limitations resumed running on the following day because the limitation
period is not tolled during the time that a habeas petitioner could have appealed to
the United States Supreme Court following the conclusion of state collateral
review. Lawrence v. Florida, 549 U.S. 327, 329, 332 (2007).
The limitation period ordinarily would have expired six days later on August
4, 2019, because the statute of limitations had already run 359 days: 357 days
before Petitioner filed his initial habeas petition and 2 days between the deadline
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for filing an appeal from the trial court’s order on his first post-conviction motion
and the filing of his second post-conviction motion. However, Judge Cohn stated
in his 2012 order that this case would be held in abeyance if Petitioner returned to
this Court within 90 days of exhausting state court remedies. (See ECF No. 3 at Pg
ID 12.)
Petitioner complied with Judge Cohn’s order by signing and submitting his
second habeas petition to the Court on August 22, 2019, which was less than 90
days after exhausting state court remedies. Therefore, the Court finds that the 2019
habeas petition is timely.
Respondent correctly argues that a pending habeas petition does not toll the
statute of limitations. See Duncan v. Walker, 533 U.S. 167, 180-81 (2001)
(holding “that an application for federal habeas corpus review is not an
‘application for State post-conviction or other collateral review’ within the
meaning of 28 U.S.C. § 2244(d)(2),” and that “Section 2244(d)(2) therefore did not
toll the limitation period during the pendency of [the prisoner’s] first federal
habeas petition”). But in Walker, the federal district court dismissed a habeas
petition without prejudice due to the failure to exhaust available state remedies,
and the petitioner filed a second, untimely habeas petition without first returning to
state court to exhaust any state remedies. Petitioner’s case is different in that Judge
Cohn stayed, rather than dismissed, the first petition.
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Moreover, the Supreme Court has stated that a prisoner seeking state postconviction relief can avoid the predicament created by AEDPA’s statute of
limitation and the need to exhaust state remedies “by filing a protective’ petition in
federal court and asking the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.” See Pace v. DiGuglielmo, 544
U.S. 408, 416 (2005) (citing Rhines v. Weber, 544 U.S. 269, 278 (2005)). Here,
Petitioner filed a protective petition. Judge Cohn then stayed this case until
Petitioner could exhaust state remedies for new claims. The stay protected
Petitioner’s right to return to federal court, as long as he complied with the
conditions of the stay. He did.
Accordingly,
IT IS ORDERED that Respondent’s motion to dismiss (ECF No. 12) is
DENIED.
IT IS FURTHER ORDERED that within three (3) months of this Opinion
and Order, Respondent shall file an answer to Petitioner’s claims as set forth in his
initial habeas petition (ECF No. 1) and his supplemental petition (ECF No. 6).
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 30, 2021
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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 30, 2021, by electronic
and/or U.S. First Class mail.
s/Aaron Flanigan
Case Manager

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