Holbrook v. Curtin

Filing 21

ORDER DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS; DENYING A CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CAMERON HOLBROOK, 382196,
Petitioner,
v.

CASE NO. 2:13-CV-11235
HONORABLE LAWRENCE P. ZATKOFF

CINDI S. CURTIN,
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 Cameron Holbrook (“Petitioner”) has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in custody in violation of
his constitutional rights. The matter is before the Court on Respondent’s motion for summary
judgment seeking dismissal of the petition as untimely under the one-year statute of limitations
applicable to federal habeas actions. Having reviewed the matter, the Court finds that the petition
is untimely and must be dismissed for failure to comply with the one-year statute of limitations set
forth in 28 U.S.C. § 2244(d). The Court also finds that a certificate of appealability and leave to
proceed in forma pauperis on appeal should be denied.
II. FACTS AND PROCEDURAL HISTORY
Petitioner was convicted of first-degree murder and possession of a firearm during the
commission of a felony following a jury trial in the Oakland County Circuit Court. He was

sentenced to life imprisonment without the possibility of parole and a consecutive term of two years
imprisonment on those convictions in 2008.
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals raising several claims of error. The court denied relief on those claims
and affirmed his convictions. People v. Holbrook, No. 287383, 2010 WL 99010 (Mich. Ct. App.
Jan. 10, 2010) (unpublished). Petitioner then filed an application for leave to appeal with the
Michigan Supreme Court, which was denied. People v. Holbrook, 486 Mich. 931, 781 N.W.2d 836
(May 25, 2010).
On May 19, 2011, Petitioner filed a motion for relief from judgment with the state trial court,
which was denied. People v. Holbrook, No. 07-218017-FC (Oakland Co. Cir. Ct. June 3, 2011).
Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, which
was denied “for failure to meet the burden of establishing entitlement to relief under MCR
6.508(D).” People v. Holbrook, No. 308678 (Mich. Ct. App. Nov. 8, 2012) (unpublished).
Petitioner did not timely seek leave to appeal with the Michigan Supreme Court.
Petitioner dated his initial federal habeas petition on March 1, 2013 and it was received and
filed by the Court on March 20, 2013. In his petition, he raises numerous claims concerning the
admission of evidence, the sufficiency of the evidence, the effectiveness of trial and appellate
counsel, the absence of counsel, the impartiality of the trial judge, the conduct of the prosecutor, a
reference to his probationary status, and cumulative error. Respondent now moves for summary
judgment contending that the petition is untimely and must be dismissed. Petitioner has filed a reply
to the motion claiming that his petition is timely.
III. SUMMARY JUDGMENT STANDARD

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Under the Federal Rules of Civil Procedure, summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986); Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000). The moving
party bears “the burden of showing the absence of a genuine issue as to any material fact.” Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). To defeat a motion for summary judgment, the
non-moving party must set forth specific facts sufficient to show that a reasonable fact finder could
return a verdict in his or her favor. Sanders, 221 F.3d at 851. The summary judgment rule applies
to habeas proceedings. Redmond v. Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003).
IV. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28
U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA governs the filing date for
this action because Petitioner filed his petition after the AEDPA’s effective date. Lindh v. Murphy,
521 U.S. 320, 336 (1997). The 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
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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 post-conviction 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.
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’s convictions became final after the AEDPA’s April 24, 1996 effective date. The
Michigan Supreme Court denied leave to appeal on direct appeal on May 25, 2010. Petitioner’s
convictions became final 90 days later, Jimenez v. Quarterman, 555 U.S. 113, 119 (2009); Lawrence
v. Florida, 549 U.S. 327, 333 (2007); S. Ct. R. 13(1), on August 23, 2010. Accordingly, Petitioner
was required to file his federal habeas petition on or before August 23, 2011, 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 filed his motion for relief from judgment in the state trial court on May 19, 2011.
At that point, 269 days of the one-year period had expired. Petitioner’s motion and related appeal
remained pending in the state courts, thereby tolling the one-year period, until November 8, 2012
when the Michigan Court of Appeals denied leave to appeal. Although Petitioner had 56 days to
file an application for leave to appeal with the Michigan Supreme Court, Mich. Ct. R. 7.302(C)(3),
he did not do so. A post-conviction motion is “pending,” within the meaning of 28 U.S.C. §
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2244(d)(2), during “the period between (1) a lower court’s adverse determination, and (2) the
prisoner’s filing of a notice of appeal, provided that the filing of the notice of appeal is timely under
state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey v. Saffold, 536 U.S. 214 (2002))
(emphasis in original). Because Petitioner did not timely seek leave to appeal with the Michigan
Supreme Court, the tolling of the limitations period ended when the Michigan Court of Appeals
denied leave to appeal on November 8, 2012. Petitioner then had 96 days, until February 12, 2013,
to file his federal habeas petition. He did not date his initial petition until March 1, 2013 – more
than two weeks after the one-year period had expired. Moreover, the prison documents attached to
Petitioner’s reply brief indicate that he gave his habeas pleadings to prison officials for mailing on
March 18, 2013 – more than one month after the one-year period had expired. In either case, his
habeas petition is late.
Petitioner neither alleges nor establishes that the State created an impediment to the filing
of his federal habeas petition or that his claims are based upon newly-discovered evidence or
newly-created retroactively-applicable rights which would warrant habeas relief. His habeas action
is therefore untimely under 28 U.S.C. § 2244(d).
The United States Supreme Court has confirmed that the habeas statute of limitations is not
a jurisdictional bar and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, _, 130 S.
Ct. 2549, 2560 (2010). The Supreme Court has 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

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equitable tolling. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). “Typically, equitable tolling
applied 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 makes no
such showing. The fact that he is untrained in the law, may have been proceeding without a lawyer,
or may have been unaware of the statute of limitations does not warrant tolling. See Allen, 366 F.3d
at 403 (ignorance of the law does not justify tolling); Rodriguez v. Elo, 195 F. Supp. 2d 934, 936
(E.D. Mich. 2002) (the law is “replete with instances which firmly establish that ignorance of the
law, despite a litigant’s pro se status, is no excuse for failure to follow established legal
requirements); 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). Petitioner is not entitled to equitable tolling under Holland.
The United States Court of Appeals for the Sixth Circuit has held that a credible claim of
actual innocence may equitably toll the one-year statute of limitations. Souter v. Jones, 395 F.3d
577, 588-90 (6th Cir. 2005). 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 (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

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presented at trial.” Schlup, 513 U.S. at 324. Significantly, actual innocence means “factual
innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. Petitioner makes no such
showing. He is thus not entitled to equitable tolling of the one-year period.
V. CONCLUSION
Based on the foregoing discussion, the Court concludes that Petitioner did not file his habeas
petition within the one-year limitations period established by 28 U.S.C. § 2244(d), that he has not
demonstrated entitlement to statutory or equitable tolling, and that the statute of limitations
precludes review of his claims. Accordingly, the Court GRANTS Respondent’s motion for
summary judgment and DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue.
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 district court’s assessment
of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
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. Id. Jurists of reason would
not find the Court’s procedural ruling debatable. Accordingly, the Court DENIES a certificate of
appealability. The Court also DENIES leave to proceed in forma pauperis on appeal as an appeal
cannot be taken in good faith. See Fed. R. App. P. 24(a).

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IT IS SO ORDERED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: January 8, 2014

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