Lathrop v. Winn
OPINION and ORDER GRANTING RESPONDENTS MOTION FORSUMMARY JUDGMENT, DISMISSING PETITION FOR WRIT OFHABEAS CORPUS, AND DENYING CERTIFICATE OF APPEALABILITY Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Action No. 14-cv-11851
HON. BERNARD A. FRIEDMAN
O. C. WINN,
OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR
SUMMARY JUDGMENT, DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS, AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Louis Lathrop has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner is in the custody of the Michigan Department of Corrections due to
convictions for three counts of third-degree criminal sexual conduct. Respondent moves for
summary judgment on the ground that the petition is untimely [docket entry 5]. The Court finds that
the petition is untimely and grants respondent’s motion.
Petitioner pleaded guilty in Montcalm County Circuit Court to third-degree criminal
sexual conduct (incapacitated victim), M.C.L. § 750.520d(1)(c), and two counts of third-degree
criminal sexual conduct (multiple variables), M.C.L. § 750.520d. On May 31, 2007, he was
sentenced to 9 to 22 years for the third-degree criminal sexual conduct (incapacitated victim)
conviction, and 15 to 22 years for the third-degree criminal sexual conduct (multiple variables)
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals.
The Michigan Court of Appeals denied leave to appeal. People v. Lathrop, No. 283512 (Mich. Ct.
App. March 21, 2008). Petitioner then filed an application for leave to appeal in the Michigan
Supreme Court. On June 23, 2008, the Michigan Supreme Court denied leave to appeal. People v.
Lathrop, 481 Mich. 917 (Mich. June 23, 2008).
On July 11, 2012, Petitioner filed a motion for relief from judgment in the trial court.
The trial court denied the motion. People v. Lathrop, No. 07-009015-FC (Montcalm County Cir.
Ct. July 20, 2012). The Michigan Court of Appeals denied Petitioner’s delayed application for leave
to appeal on July 3, 2013. People v. Lathrop, No. 312452 (Mich. Ct. App. July 3, 2013). The
Michigan Supreme Court denied leave to appeal on December 23, 2013. People v. Lathrop, 495
Mich. 913 (Mich. 2013).
Petitioner filed the pending habeas petition on May 2, 2014.
Respondent argues that the petition is barred by the one-year statute of limitations.
A prisoner must file a federal habeas corpus petition within one year of the “date on which the
judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review . . . or 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 one-year limitation period begins at the deadline for filing a petition for a writ of certiorari to
the United States Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). In
addition, the time during which a prisoner seeks state court collateral review of a conviction does
not count toward the limitation period. 28 U.S.C. § 2244(d)(2); Ege v. Yukins, 485 F.3d 364, 371-72
(6th Cir. 2007). A properly filed application for state post-conviction relief, while tolling the
limitation period, does not re-fresh the limitation period. Vroman v. Brigano, 346 F.3d 598, 602 (6th
Petitioner appealed his conviction first to the Michigan Court of Appeals, and then
to the Michigan Supreme Court. The Michigan Supreme Court denied his application for leave to
appeal on June 23, 2008. Petitioner had ninety days from that date to file a petition for writ of
certiorari with the United States Supreme Court, which he did not do. Thus, his conviction became
final on September 21, 2008, when the time period for seeking certiorari expired. Bronaugh v. Ohio,
235 F.3d 280, 283 (6th Cir. 2000) (one-year statute of limitations does not begin to run until the time
for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has
expired). The last day on which a petitioner can file a petition for a writ of certiorari in the United
States Supreme Court is not counted toward the one-year limitations period applicable to habeas
corpus petitions. Id. at 285. Accordingly, the limitations period commenced on September 22,
2008, and continued to run uninterrupted until it expired one year later.
Petitioner’s motion for relief from judgment did not toll the limitations period. The
motion for relief from judgment was filed on July 11, 2012, nearly four years after the limitations
period already expired. Vroman, 346 F.3d at 602 (6th Cir. 2003) (holding that the filing of a motion
for collateral review in state court serves to “pause” the clock, not restart it).
Equitable tolling is available to toll a statute of limitations when “‘a litigant’s failure
to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s
control.’” Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010) (quoting Graham-Humphreys
v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). The one-year
limitations period applicable to § 2254 is “subject to equitable tolling in appropriate cases.” See
Holland v. Florida, 560 U.S. 631, 645 (2010). To be entitled to equitable tolling, a petitioner must
show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327,
336 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A claim of actual innocence
may also justify equitable tolling in certain circumstances. Souter v. Jones, 395 F.3d 577, 588 (6th
Cir. 2005). A petitioner bears the burden of showing that he is entitled to equitable tolling.
Robertson, 624 F.3d at 784.
Petitioner does not assert an argument for equitable tolling in his petition or in his
response to the motion. As such, the Court finds no basis for equitable tolling and will grant the
motion for summary judgment.
Certificate of Appealability
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
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).
In this case, the Court concludes that reasonable jurists would not debate the Court’s
conclusion that the petition is untimely. Therefore, the Court denies a certificate of appealability.
Petitioner failed to file his habeas petition within the applicable one-year limitations
period and equitable tolling of the limitations period is not warranted. Accordingly,
IT IS HEREBY ORDERED that respondent’s motion for summary judgment [docket
entry 5] is granted and the petition for a writ of habeas corpus is dismissed.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
IT IS FURTHER ORDERED that petitioner may not proceed on appeal in forma
pauperis, as any appeal in this matter would be frivolous. See 28 U.S.C. § 1915(a)(3).
S/ Bernard A. Friedman______
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: January 16, 2015
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