Christian v. Klee

Filing 11

OPINION and ORDER Granting Respondent's 8 Motion for Summary Judgment and Dismissal of the Habeas Petition, Dismissing the 1 Habeas Petition, Declining to Issue a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Sean F. Cox. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AUBREY LEE CHRISTIAN,
Petitioner,
CASE NO. 14-13982
v.
HONORABLE SEAN F. COX
PAUL KLEE,
Respondent.
______________________________/
OPINION AND ORDER
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
AND DISMISSAL OF THE HABEAS PETITION (docket no. 8),
DISMISSING THE HABEAS PETITION (docket no. 1),
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Aubrey Lee Christian has filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s state
conviction for a drug offense. Respondent Paul Klee has moved for summary judgment
and dismissal of the habeas petition on the ground that Petitioner failed to comply with
the one-year statute of limitations. The Court agrees with Respondent that the petition
is time-barred. Accordingly, the petition will be denied and the case dismissed with
prejudice.
I. Background
In 2009, Petitioner was charged in Berrien County, Michigan with five felony
counts involving controlled substances. On July 21, 2009, he pleaded guilty to owning,
possessing, or using a vehicle, building, structure, place or area, chemical, or laboratory

equipment that he knew or had reason to know would be used to manufacture
methamphetamine. See Mich. Comp. Laws § 333.7401c. In exchange for Petitioner’s
guilty plea, the prosecutor dismissed the remaining four counts against Petitioner and
agreed not to charge Petitioner as a habitual offender.
On August 17, 2009, the trial court sentenced Petitioner to imprisonment for 72 to
240 months (6 to 20 years). Petitioner was 31 years old at the time. He applied for
leave to appeal his conviction, but later asked the trial court for permission to end the
appellate proceedings because he had no viable appellate issues. He conceded that
his guilty plea was voluntary and knowing and that the factual basis was supplied by his
testimony at the plea proceeding. He also implied that he had no basis for challenging
his sentence because the sentencing guidelines were correctly scored. On February
11, 2010, the trial court granted Petitioner’s request, permitted appellate counsel to
withdraw, and terminated the appellate proceedings. See People v. Christian,
Stipulated Order to End Appeal Proceedings and to Permit Counsel to Withdraw, No.
09-016138-FH (Berrien Cty. Cir. Ct. Feb. 11, 2010).
On November 26, 2012, Petitioner filed a pro se motion for relief from judgment
in the state trial court. He argued that the prosecution failed to fully explain the details
of the plea agreement to him and that his trial and appellate attorneys were ineffective.
The trial court found no merit in Petitioner’s claims and denied his post-conviction
motion on January 17, 2013. See People v. Christian, Order Denying Motion for Relief
from Judgment, No. 2009-016138-FH (Berrien Cty. Trial Ct. Jan. 17, 2013).
Petitioner appealed the trial court’s decision without success. The Michigan
Court of Appeals denied leave to appeal for failure to establish entitlement to relief

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under Michigan Court Rule 6.508(D). See People v. Christian, No. 317051 (Mich. Ct.
App. Dec. 27, 2013). On September 5, 2014, the Michigan Supreme Court denied
leave to appeal for the same reason. See People v. Christian, 497 Mich. 852; 852
N.W.2d 172 (2014) (table).
On October 10, 2014, Petitioner signed and dated his habeas corpus petition,
and on October 15, 2014, the Clerk of the Court filed the petition.1 The grounds for
relief are: (1) Petitioner is actually innocent of the two counts charging him with delivery
or manufacture of marijuana and possession of marijuana; (2) the plea agreement was
illusory because two of the dismissed counts were used to increase his sentence; (3)
trial counsel was ineffective for (a) failing to raise an affirmative defense, (b) failing to
fully explain the plea agreement, (c) allowing the trial court to pressure Petitioner into an
illusory plea agreement, (d) failing to appear at sentencing, and (e) failing to argue the
scoring of the offense variables; and (4) appellate counsel was ineffective for (a) failing
to raise an affirmative defense on direct appeal, (b) failing to properly investigate the
trial court proceedings and the illusory plea bargain, and (c) goading Petitioner into
allowing his appeal by right to be dismissed.
Respondent argues in his motion for summary judgment and dismissal of the
petition that Petitioner’s claims are time-barred. Respondent claims that, under
Michigan Court Rule 7.205(F)(3), as it read before September 1, 2011, the time for
seeking direct review in state court expired on August 17, 2010, one year after
Petitioner was sentenced. Respondent contends that, because Petitioner withdrew his
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At the time, Petitioner was incarcerated at the Gus Harrison Correctional Facility in
Adrian, Michigan. On July 9, 2015, Petitioner notified the Court that he is currently
confined at the Bradley County Jail in Cleveland, Tennessee. See docket no. 10.
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appeal, he never really had a direct appeal, and the statute of limitations began to run
on August 18, 2010. According to Respondent, the limitations period expired one year
later on August 17, 2011, long before Petitioner filed his habeas corpus petition or his
motion for relief from judgment. Petitioner has not filed a reply to Respondent’s motion.
II. Analysis
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies here
because Petitioner filed his habeas petition after AEDPA became effective on April 24,
1996. Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999). AEDPA established a oneyear period of limitation for state prisoners to file a federal petition for writ of habeas
corpus. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C. § 2244(d)(1)). The
period of limitations runs from the latest of the following four dates:
(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). The limitations period is tolled while a “properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending.” 28 U.S.C. § 2244(d)(2).
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Petitioner is not relying on a newly recognized constitutional right or on newly
discovered facts, and he has not shown that the State created an impediment to filing a
timely habeas petition. Cf. 28 U.S.C. § 2244(d)(1)(B-D). Consequently, the statute of
limitations began to run when Petitioner’s conviction “became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). “Direct review” concludes for purposes of subsection 2244(d)(1)(A)
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). “Until that time, the ‘process of direct review’ has not ‘com[e] to an end’ and ‘a
presumption of finality and legality’ cannot yet have ‘attache[d] to the conviction and
sentence.’ ” Id. at 119-20 (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).
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, 132 S. Ct. 641, 653-54 (2012)(quoting Barefoot, 463 U.S. at 887).
“[W]hen a notice of appeal is voluntarily dismissed, further direct review is not
possible,” and AEDPA’s period of limitations begins to run on the date the appeal is
dismissed. United States v. Goward, 719 F. Supp. 2d 792, 794 (E.D. Mich. 2010);
accord United States v. Sylvester, 258 F. App’x 411, 412 (3d Cir. 2007) (stating that the
one-year limitations period began to run when the defendant’s appeal was voluntarily
dismissed); Salley v. Stevenson, No. 8:07-2763-HMH-BHH, 2008 WL 2307356, at *4
(D. S.C. May 30, 2008) (concluding in a case filed under § 2254 that the petitioner’s
conviction became final at the conclusion of direct review, which occurred when the
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state court of appeals issued its remittitur following the petitioner’s voluntary dismissal of
his direct appeal) (unpublished). “Direct review cannot be prolonged if the defendant
voluntarily abandons the effort.” Goward, 719 F. Supp. 2d at 794.
B. Application
Petitioner was sentenced on August 17, 2009, and he filed a notice of appeal on
August 21, 2009. His conviction became final at the conclusion of direct review, which
occurred on February 11, 2010, when the trial court granted Petitioner’s request to
withdraw his appeal to the Michigan Court of Appeals. Petitioner had one year from
then (until February 11, 2011) to file his habeas corpus petition. See Gomez v. United
States, Nos. 1:09-cv-276 and 1:06-cr-30, 2010 WL 1609412, at *2 (E.D. Tenn Apr. 20,
2010) (explaining that the one-year statute of limitations for filing a motion to vacate
sentence under 28 U.S.C. § 2255 expired one year after the defendant voluntarily
dismissed his appeal) (unpublished).
Petitioner did not file his habeas corpus petition until October of 2014, and even
though the limitations period is tolled while a properly filed post-conviction motion is filed
in state court, 28 U.S.C. § 2244(d)(2), Petitioner filed his motion for relief from judgment
in state court on November 26, 2012. This was more than a year and a half after the
February 11, 2011, deadline for filing his habeas petition. The post-judgment motion did
not re-start the clock at zero, nor revive the limitations period. Vroman v. Brigano, 346
F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F. Supp. 254, 259 (S.D.
N.Y. 1998)). In other words, the tolling provision of § 2244(d)(2) “can only serve to
pause a clock that has not yet fully run. Once the limitations period is expired, collateral
petitions can no longer serve to avoid a statute of limitations.” Rashid, 991 F. Supp. at

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259. The Court concludes that the habeas petition is time-barred, absent equitable
tolling of the limitations period or a credible showing of actual innocence.
C. Equitable Tolling
“The doctrine of equitable tolling allows courts 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,
783 (6th Cir. 2010) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 560–61 (6th Cir. 2000)). But a habeas petitioner is entitled to
equitable tolling of the limitations period “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.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner has not argued in favor of equitably tolling, nor even acknowledged
that the limitations period expired before he filed his habeas petition. Furthermore, he
did not pursue his rights diligently, and there is no reason to believe that some
extraordinary circumstance prevented him from filing a timely habeas petition. The
Court therefore declines to equitably toll the limitations period.
D. Actual Innocence
Actual innocence, if proved, serves as a gateway through which habeas
petitioners may pass when the impediment to consideration of the merits of their
constitutional claims is the expiration of the statute of limitations. McQuiggin v. Perkins,
133 S. Ct. 1924, 1928 (2013). Nevertheless,
tenable actual-innocence gateway pleas are rare: “[A] petitioner does not
meet the threshold requirement unless he persuades the district court that,
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in light of the new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.” Schlup [v. Delo, 513 U.S.
298, 329 (1995)]; see House [v. Bell, 547 U.S. 518, 538 (2006)]
(emphasizing that the Schlup standard is “demanding” and seldom met).
Id.
Although Petitioner claims to be actually innocent of two counts that were used to
score the state sentencing guidelines, those counts were dismissed as part of his plea
bargain. Petitioner does not claim to be innocent of the offense for which he was
convicted and sentenced. In fact, he pleaded guilty to the offense. His plea serves as
an admission that he is not innocent of the charged crime. Luster v. United States, 168
F.3d 913, 916 (6th Cir. 1999) (citing United States v. Skinner, 25 F.3d 1314, 1316 (6th
Cir. 1994)).
III. Conclusion
Petitioner filed his habeas corpus petition more than a year after his conviction
became final, and application of the doctrine of equitable tolling is not appropriate under
the circumstances present here. Petitioner also has not made a credible showing of
actual innocence. Accordingly, Respondent’s motion for summary judgment and
dismissal of the habeas petition (docket no. 8) is granted, and the habeas petition
(docket no. 1) is dismissed as untimely.
IV. Regarding a Certificate of Appealability and the Appellate Filing Fee
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When, as here,
the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner’s habeas petition is clearly time-barred. Consequently, reasonable
jurists would not find the Court’s procedural ruling debatable. Reasonable jurists also
would not find it debatable whether the petition states a valid claim of the denial of a
constitutional right. The Court therefore declines to issue a certificate of appealabilty.
The Court also denies leave to appeal in forma pauperis because, even though
Petitioner was granted leave to proceed in forma pauperis in this Court, an appeal could
not be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a)(3)(A).

Dated: October 30, 2015

s/ Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on October 30, 2015, the document above was served on counsel
and/or the parties of record via electronic means and/or First Class Mail.
s/ Jennifer McCoy
Case Manager

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