Townsend v. Hoffner
Filing
26
OPINION & ORDER granting 22 Motion for Summary Judgment, DENYING PETIITON FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY & DENYING LEAVE TO PROCEED INFORMA PAUPERIS ON APPEAL.. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LORENZO TOWNSEND,
Petitioner,
CASE NO. 2:13-CV-14187
HONORABLE PATRICK J. DUGGAN
v.
BONITA HOFFNER,
Respondent.
________________________________/
OPINION AND ORDER GRANTING (1) RESPONDENT’S MOTION FOR
SUMMARY JUDGMENT, (2) DENYING PETITIONER’S WRIT FOR
HABEAS CORPUS, (3) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND (4) DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
Michigan prisoner Lorenzo Townsend (“Petitioner”) has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal
convictions and sentences. Petitioner was convicted of two counts of first-degree
criminal sexual conduct (victim less than thirteen years old) following a jury trial in
the Genesee County Circuit Court and was sentenced as a second habitual offender
to concurrent terms of forty to sixty years of imprisonment in 1994. In his petition,
he raises claims concerning the state court’s probable cause determination and
jurisdiction, the effectiveness of defense counsel, and his innocence.
The matter is before the Court on Respondent’s motion for summary judgment,
which seeks dismissal of the petition for failure to comply with the one-year statute
of limitations applicable to federal habeas actions. For the reasons set forth herein,
the Court finds that the petition is untimely, grants Respondent’s motion for summary
judgment, and dismisses the petition with prejudice. The Court also denies a
certificate of appealability and denies leave to proceed in forma pauperis on appeal.
I. Factual and Procedural History
Petitioner’s convictions arise from his sexual assault of an eleven-year-old girl.
Following a jury trial and the court’s imposition of a sentence, Petitioner filed an
appeal as of right with the Michigan Court of Appeals. The court affirmed his
convictions and sentences. People v. Townsend, No. 182313, 1996 WL 33348844
(Mich. Ct. App. Nov. 12, 1996) (per curiam) (unpublished). Petitioner filed an
application for leave to appeal with the Michigan Supreme Court, which was denied
on November 25, 1997. People v. Townsend, 456 Mich. 895, 572 N.W.2d 7 (1997).
On November 23, 1998, Petitioner filed a motion for relief from judgment with
the state trial court, which was denied on March 25, 1999. See Dkt., Genesee Co. Cir
Ct. No. 94-050843-FC. Petitioner did not appeal that decision.
On February 10, 2003, Petitioner filed a second motion for relief from judgment
with the state trial court, which was denied on October 29, 2003. Id. As with the first
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motion for relief from judgment, Petitioner did not appeal.
On September 3, 2008, Petitioner filed a request for judicial notice with the
state trial court, which the court treated as a third motion for relief from judgment and
denied. Id. Petitioner filed a delayed application for leave to appeal with the
Michigan Court of Appeals, which was denied pursuant to Michigan Court Rule
6.502(G)(1). People v. Townsend, No. 288453 (Mich. Ct. App. Jan. 7, 2009)
(unpublished). Petitioner then filed an application for leave to appeal with the
Michigan Supreme Court, which was similarly denied. People v. Townsend, 485
Mich. 862, 771 N.W.2d 767 (2009). The Michigan Supreme Court subsequently
denied Petitioner’s request for reconsideration. People v. Townsend, 485 Mich. 1013,
775 N.W.2d 758 (2009).1
Petitioner dated his federal habeas petition September 24, 2013.2 Respondent
1
It appears from the documents attached to the petition and the motion for
summary judgment that Petitioner has filed additional civil actions and motions in
the state courts since 2009 in an effort to challenge his convictions. Those efforts
have been unsuccessful to date. In any event, such proceedings do not toll the oneyear limitations period given that it had already expired. See discussion, infra.
2
Under the prison mailbox rule, a federal habeas petition is deemed filed when
the prisoner gives his petition to prison officials for mailing to the federal courts.
Hudson v. Martin, 68 F. Supp. 2d 798, 800 n.2 (E.D. Mich. 1999). Absent
evidence to the contrary, federal courts employ a presumption that a prisoner gives
his habeas petition to prison officials on the date the petition is signed. Id.; see
also Rhodes v. Senkowski, 82 F. Supp. 2d 160, 165 (S.D.N.Y. 1999) (“A pro se
prisoner’s papers are considered filed when they are handed over to prison officials
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filed the instant motion for summary judgment on April 10, 2014. Petitioner filed a
response to the motion on May 19, 2014.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56 instructs courts to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A court assessing the appropriateness of summary judgment asks “whether
the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Amway
Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505,
2512 (1986)). To defeat a summary judgment motion, “the non-moving party must
set forth specific facts sufficient to show that a reasonable fact-finder could return
a verdict in his favor.” Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000).
The summary judgment rule applies to habeas actions. Redmond v. Jackson, 295
F. Supp. 2d 767, 770 (E.D. Mich. 2003); Rule 12 of the Rules Governing Section
for forwarding to the court.”) (collecting cases). Although not placed on the
Court’s docket until October 1, 2013, the Court will assume that Petitioner actually
filed his habeas petition on September 24, 2013, the date on which he signed and
dated the petition. Neal v. Bock, 137 F. Supp. 2d 879, 882 n.1 (E.D. Mich. 2001).
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2254 Cases, 28 U.S.C. foll. § 2254 (“The Federal Rules of Civil Procedure, to the
extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”).
III. Discussion
Review of this case is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, because
Petitioner’s habeas petition was filed after the April 24, 1996 effective date. Lindh
v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068 (1997). The AEDPA
establishes 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 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.
(2) The time during which a properly filed application for State postconviction 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). In the absence of statutory or equitable tolling, a habeas
petition filed outside the time period prescribed by § 2244(d)(1) must be dismissed.
See, e.g., Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (dismissing case
filed thirteen days after the limitations period expired).
A.
In this case, the Michigan Supreme Court denied leave to appeal on direct
review on November 25, 1997. Petitioner then had ninety days in which to file a
petition for a writ of certiorari with the Supreme Court of the United States. See
Rule 13(1), Supreme Court Rules; Jimenez v. Quarterman, 555 U.S. 113, 119-20,
129 S. Ct. 681, 685 (2009) (stating that a conviction becomes final when “the time
for filing a certiorari petition expires”). Because Petitioner did not file such a
petition, his convictions became final and the one-year limitations period
commenced when the ninety day period expired on February 23, 1998.
Petitioner filed his first motion for relief from judgment on November 23,
1998. At that point, 273 days (approximately nine months) of the one-year period
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had run. Because the one-year period excludes any time during which a properly
filed application for state post-conviction or collateral review is pending, 28 U.S.C.
§ 2244(d)(2), the limitations period was tolled from November 23, 1998 until the
trial court denied his motion on March 25, 1999. Since Petitioner did not appeal
that decision, his post-conviction motion was no longer pending. As a result, the
one-year period resumed running the next day and expired ninety-two days
(roughly three months) later on June 25, 1999.
Petitioner’s subsequent state court motions for relief from judgment filed in
2003 and 2008 (and other state actions filed after those dates) did not toll the
limitations period because the one-year period had already expired. A motion for
relief from judgment filed after the limitations period has lapsed “does not reset the
date from which the one-year statute of limitations begins to run.” Johnson v.
Hendricks, 314 F.3d 159, 161-62 (3d Cir. 2002). A state court post-conviction
motion that is filed following the expiration of the limitations period cannot toll
that period because there is no time remaining to be tolled. Hargrove v. Brigano,
300 F.3d 717, 718 n.1 (6th Cir. 2002); see also Jurado v. Burt, 337 F.3d 638, 641
(6th Cir. 2003).
Petitioner did not date his § 2254 petition until September 24, 2013 – well
after the one year period set forth in § 2244(d)(1)(A) had expired. His petition is
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therefore untimely unless different provision applies.
Petitioner does not assert that his claims are based upon newly-enacted
retroactively-applicable rights or newly-discovered evidence such that the
AEDPA’s one-year limitations period commenced after the February 23, 1998 date
set forth above. 28 U.S.C. § 2244(d)(1)(C)-(D). However, Petitioner does assert
that the State created an impediment to the filing of his habeas petition because the
state trial court or other entities denied multiple requests for transcripts and other
documents related to his criminal proceedings. 28 U.S.C. § 2244(d)(1)(B). This
assertion, however, does not establish that state action in fact created an
impediment to the timely filing of Petitioner’s habeas application.
As an initial matter, it is well-settled that a prisoner has no constitutional
right to transcripts on collateral review of a conviction. United States v.
MacCollom, 426 U.S. 317, 323-24, 96 S. Ct. 2086, 2090-91 (1976). Further,
because the possession of a transcript and other documents is not a condition
precedent to the filing of a federal habeas relief, the State cannot be said to have
created an impediment to Petitioner’s ability to timely file for such relief. Although
undoubtedly helpful to habeas petitioners seeking to support their arguments with
record evidence, the Rules Governing Section 2254 Cases contemplate that some
petitioners will at times have to file their petitions without access to the state-court
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record. Rule 5(c) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. §
2254 (providing that respondents must furnish portions of state-court transcripts
they deem relevant and further providing obligation to provide additional
transcripts upon a judge’s request); Hall v. Warden, Lebanon Corr. Inst., 662 F.3d
745, 751 (6th Cir. 2011); cf. Grayson v. Grayson, 185 F. Supp. 2d 747, 752 (E.D.
Mich. 2002) (explaining that possession of a transcript is not a condition precedent
to the filing of state post-conviction relief and that a state’s purported failure to
provide requested transcripts to a petitioner neither impeded petitioner’s ability to
seek state post-conviction relief nor his ability to timely file his federal habeas
application) (citation omitted).
That Petitioner was able to file three state court motions for relief from
judgment and his current habeas petition despite his alleged inability to obtain the
documents provides additional evidence that the State did not create an unlawful
impediment to the filing of his habeas application. Grayson, 185 F. Supp. 2d at
752. Accordingly, Petitioner is unable to avail himself of the statutory accrual date
delineated in § 2244(d)(1)(B). Absent equitable tolling, then, Petitioner’s habeas
application is untimely.
B.
The AEDPA’s one-year statute of limitations is not jurisdictional in nature
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and is therefore “subject to equitable tolling in appropriate cases.” Holland v.
Florida, 560 U.S. 631, 645, 130 S. Ct. 2549, 2560 (2010) A petitioner is entitled to
equitable tolling only upon a showing “‘(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 649, 130 S. Ct. at 2562 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814 (2005)). A petitioner has
the burden of demonstrating that he is entitled to equitable tolling. Robertson v.
Simpson, 624 F.3d 781, 784 (6th Cir. 2010). “Typically, equitable tolling applies
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, 560-61 (6th Cir. 2000)). A habeas petitioner may also benefit from equitable
tolling if he or she has a credible claim of actual innocence. McQuiggin v. Perkins,
_ U.S. _, 133 S. Ct. 1924, 1928 (2013); Souter v. Jones, 395 F.3d 577, 588-90 (6th
Cir. 2005).
The lack of a transcript itself is not a circumstance which justifies the tolling
of AEDPA’s limitations period. Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001);
Grayson, 185 F. Supp. 2d at 751-52 (“Lack of access to a trial transcript does not
preclude a habeas petitioner from commencing post-conviction proceedings and
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therefore does not warrant the equitable tolling of the limitations period for filing a
petition for writ of habeas corpus.”) (citations omitted). Petitioner has not
explained how his inability to obtain transcripts or other materials prevented him
from timely seeking habeas review. Petitioner could have filed a state
post-conviction motion (or federal habeas petition) within the one-year period and
then sought production of the transcripts or other materials relevant to his claims.3
Rather, because he ultimately filed his petition (as well as several motions for postconviction relief in the state court) without the requested materials, his failure to
file a timely habeas petition “seems more the consequence of a lack of diligence
than of ‘circumstances beyond [his] control.’” Hall, 662 F.3d at 751 (quotation
omitted) (alteration in original).
In light of the foregoing, Petitioner’s requests for transcripts, police or
medical records, and other legal materials do not operate to toll the one-year
period, nor does the State’s alleged delay in producing the requested documents.
See, e.g., id. at 750-51; Lloyd v. VanNatta, 296 F.3d 630, 633-34 (7th Cir. 2002);
Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (noting that a prisoner has the
3
Similar to Rule 5 of the Rules Governing Section 2254 Cases, see supra, the
Michigan Court Rules permit a defendant seeking post-conviction relief to attach
evidence in support of the requested relief but do not require it. In fact, Michigan
Court Rule 6.504(B)(1) expressly provides that “[t]he court may request that the
prosecutor provide copies of transcripts, briefs, or other records.”
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option of filing a timely petition and then seeking discovery and amending the
petition); Williams v. Vasbinder, No. 05-74371, 2006 WL 2123908, at *4 (E.D.
Mich. 2006) (denying such tolling); cf. Diaz v. Milyard, 314 F. App’x 146, 148
(10th Cir. 2009) (petitioner not entitled to equitable tolling based on lack of court
records and transcripts where he did not request records until four years after
limitations period began to run).
Additionally, the fact that Petitioner is untrained in the law, is (or was)
proceeding without a lawyer, or may have been unaware of the statute of
limitations for a certain time does not warrant tolling. See, e.g., Cobas v. Burgess,
306 F.3d 441, 444 (6th Cir. 2002) (explaining that an inmate’s lack of legal
training, poor education, or even his illiteracy likewise does not give a federal
court a reason to toll the AEDPA’s limitations period); Allen v. Yukins, 366 F.3d
396, 403 (6th Cir. 2004) (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 legal requirements); Holloway v.
Jones, 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001) (lack of professional legal
assistance does not justify tolling). Petitioner’s contention that his habeas claims
have merit also does not justify tolling the limitations period. Holloway, 166 F.
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Supp. 2d at 1191. Petitioner fails to establish that he is entitled to equitable tolling
under the provisions set forth in Holland.
Petitioner’s invocation of actual innocence as a basis for tolling the
limitations period is equally unavailing. 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, 118 S. Ct. 1604, 1611 (1998) (quoting Schlup v. Delo, 513 U.S.
298, 327-28, 115 S. Ct. 851, 867-68 (1995)). 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 presented at trial.”
Schlup, 513 U.S. at 324, 115 S. Ct. at 865. Furthermore, actual innocence means
“factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623, 118 S.
Ct. at 1611. In keeping with Supreme Court authority, the Sixth Circuit has
recognized that the actual innocence exception should “remain rare” and “only be
applied in the ‘extraordinary case.’” Souter, 395 F.3d at 590 (quoting Schlup, 513
U.S. at 321, 115 S. Ct. at 864).
Petitioner makes no such showing. Nothing in his pleadings establishes that
he is actually innocent of the offenses. His own self-serving, conclusory assertions
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of innocence are insufficient to support an actual innocence claim. “A reasonable
juror surely could discount [a petitioner’s] own testimony in support of his own
cause.” McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir. 2007) (citing cases).
Petitioner fails to demonstrate that he is entitled to equitable tolling of the one-year
period pursuant to the actual innocence exception set forth in McQuiggin.
Accordingly, his habeas petition is untimely and must be dismissed.
IV. Conclusion, Certificate of Appealability, and Order
Based upon the foregoing discussion, the Court concludes that Petitioner
failed to file his federal habeas petition within the one-year period established by
28 U.S.C. § 2244(d), that he is not entitled to statutory or equitable tolling of the
one-year period, and that the statute of limitations precludes federal review of the
merits of his petition.4
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 this decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
4
As a result of this determination, the Court need not revisit its March 3, 2014
Opinion and Order provisionally denying Petitioner’s motions for an evidentiary
hearing and for the appointment of counsel. (ECF Nos. 3, 14.)
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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 relief on procedural grounds without addressing the
merits, a certificate of appealability should issue if it is shown that reasonable
jurists would find it debatable whether the petitioner states a valid claim of the
denial of a constitutional right, and that reasonable jurists would find it debatable
whether the district court was correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484-85, 120 S. Ct. 1595, 1604 (2000). Reasonable jurists would not
find the Court’s procedural ruling that the petition is untimely debatable.
Accordingly, the Court DECLINES TO ISSUE a certificate of appealability.
Lastly, the Court DENIES Petitioner leave to proceed in forma pauperis on
appeal because an appeal from this decision cannot be taken in good faith. See
Fed. R. App. P. 24(a).
IT IS SO ORDERED.
Date: July 1, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Lorenzo Townsend, #201112
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036
David H. Goodkin, A.A.G.
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John S. Pallas, A.A.G.
Laura Moody, A.A.G.
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