Taylor v. palmer
Filing
2
OPINION and ORDER Summarily Dismissing 1 Petition for Writ of Habeas Corpus and Granting a Certificate of Appealability. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWIGHT ERVIN TAYLOR,
Petitioner,
Case No. 2:14-cv-14107
Hon. George Caram Steeh
v.
CARMEN PALMER,
Respondent.
__________________________________/
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY
This is a habeas case brought by a state prisoner. On April 21, 2010, Petitioner
was sentenced to 25-to-50 years in prison for his Washtenaw Circuit Court conviction of
first-degree criminal sexual conduct. MICH. COMP. LAWS § 750.520b. The petition raises
three claims: (1) Petitioner was denied the effective assistance of counsel, (2) there was
insufficient evidence presented at trial to support his conviction, and (3) the trial court
erred in failing to grant a new trial after the complainant recanted her trial testimony.
Petitioner acknowledges that his petition was filed after expiration of the one-year
statute of limitations, but he asserts that he entitled to equitable tolling because his state
postconviction counsel misadvised him of the filing deadline. For the reasons stated
below, the petition nevertheless will be dismissed for failure to comply with the statute of
limitations.
I. Background
Following his conviction and sentence, Petitioner filed an appeal by right in the
Michigan Court of Appeals. The court of appeals affirmed in an unpublished opinion.
-1-
People v. Taylor, No. 298183 (Mich. Ct. App. Sept. 22, 2011). Petitioner sought to
appeal this decision in the Michigan Supreme Court, but his application for leave to
appeal was denied. People v. Taylor, No. 143901 (Mich. Sup. Ct. Mar. 21, 2012). The
time for Petitioner to seek certiorari in the United States Supreme Court expired on
Monday, June 20, 2011. The period of limitation for filing his federal habeas petition
started running on the next day, June 21, 2011. See 28 U.S.C. §2244(d)(1)(A).
Petitioner hired attorney Nicole Childers to file a post-judgment motion for relief
from judgment in the trial court. According to the petition, the motion was filed on March
21, 2013, 274 days into the limitations period. The trial court issued its opinion denying
the motion on October 24, 2013, and it was filed by the clerk’s office on October 30,
2013. According to a letter from attorney Childers attached as an exhibit to the petition,
Petitioner was advised that he had one-full year after the trial court ruled on the motion
for relief from judgment to file his federal habeas petition, or until October 24, 2014.
See ECF No. 1-2, p. 47. Petitioner sent a message to attorney Childers, forwarded by
his mother in an e-mail dated January 2, 2014. Petitioner asked Childers whether he
had to appeal the denial of his motion for relief from judgment through the state
appellate courts before filing his federal habeas petition, as his own legal research
suggested. Petitioner also stated his understanding that the period of limitations would
“stop” while he pursued such an appeal. See ECF No. 1-3, p. 52. Nevertheless,
Petitioner never appealed the denial of his motion for relief from judgment.
Petitioner’s current counsel states that he was retained by Petitioner on October
23, 2014, the day before Petitioner understood the statute of limitations was set to
expire. Counsel admirably drafted the current petition and brief and was able to file it the
-2-
very next day, October 24, 2014. The petition recognizes that it was untimely filed, but it
argues that Petitioner is entitled to equitable tolling due to attorney Childer’s erroneous
advice.
II. Standard of Review
Upon the filing of a habeas corpus petition, the Court must promptly examine the
petition to determine “[i]f it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing Section 2254
Cases. If the Court determines that the petitioner is not entitled to relief, the Court shall
summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal
courts are authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face”). A preliminary question in a habeas case brought by a state
prisoner is whether Petitioner complied with the one-year statute of limitations. “[D]istrict
courts are permitted . . . to consider sua sponte, the timeliness of a state prisoner’s
habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006). Normally the Court will
order a Petitioner to show cause why a petition was untimely filed before deciding
whether the petition should be summarily dismissed, but in this case Petitioner has fully
briefed the issue.
III. Discussion
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year
statute of limitations applies to an application for writ of habeas corpus by a person in
custody pursuant to a judgment of a state court. The one-year limitations period runs
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;
-3-
(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).
AEDPA’s one-year limitations period is tolled when a prisoner seeks collateral
review of his conviction in state court. Wall v. Kholi, 131 S. Ct. 1278, 1282, 179 L. Ed.
2d 252 (2011)(“the 1-year limitation period is tolled during the pendency of ‘a properly
filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim.’ § 2244(d)(2)”). Absent equitable tolling, a petition for writ of
habeas corpus must be dismissed where it has not been filed before the limitations
period expires. See 28 U.S.C. § 2244(d)(1); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir.
2004).
Petitioner readily admits that the petition was untimely filed, but that fact is not
obvious. The beginning of the calculation is straightforward. The period of limitations
began running on June 21, 2011, the day after the period for seeking review in the
United States Supreme Court ended. Gonzalez v. Thaler, 132 Sup.Ct. 641; 181 L.Ed.2d
619 (2012). It continued to run for a period of 274 days until Petitioner filed his motion
for relief from judgment in the trial court. § 2244(d)(2).
The second leg is more problematic. There is a question whether the period of
limitations began to run again the day after the trial court denied the motion for relief
-4-
from judgment, or whether it continued to toll during the period Petitioner could have,
but did not, appeal the trial court’s order. In Carey v. Saffold, 536 U.S. 214, 219-20
(2002), the Supreme Court explained that an application for post-conviction relief “is
pending as long as the ordinary state collateral review process is ‘in continuance’ - i.e.,
‘until the completion of’ that process. In other words, until the application has achieved
final resolution through the State’s post-conviction procedures . . . .” This holding would
seem to suggest that the limitations period began running when the trial court issued its
order because there was no continuance of the postconviction review process after that
date. But many courts nevertheless have found that the period of tolling continues until
the time for seeking postconviction review lapses, whether it was sought or not. See
Ward v. Burt, 2013 U.S. Dist. LEXIS 53148, 5-6 ( E.D. Mich. Apr. 12, 2013) (collecting
cases).
It is difficult to square the position taken by these other Circuit Courts, however,
with Carey, which held that the time that an application for state postconviction review is
“pending” includes 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. See Evans v. Chavis, 546 U.S. 189, 191 (2006). Here,
there was no timely filing of an appeal from the trial court’s order, so it is difficult to
characterize the time an appeal could have been taken, but was not, as a period in
which the proceeding was “pending.”
In light of Saffold and Evans, the Court finds that the limitations period began
running again the day after the trial court denied postconviction relief. After that point
there simply was no petition for postconviction review pending in the state courts. The
-5-
period then continued to run until Petitioner filed his habeas petition, a period of 364
days. Adding the two periods together, 638 days, or well more than one year elapsed on
the limitations period.
The petition is therefore time barred unless Petitioner demonstrates grounds for
equitable tolling. Holland v. Florida, 130 S. Ct. 2549, 2560; 177 L.Ed.2d 130 (2010). A
petitioner is entitled to equitable tolling 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)). Equitable tolling is used “sparingly” by the federal courts. Robertson v.
Simpson, 624 F.3d 781, 784 (6th Cir. 2010). The party seeking equitable tolling bears
the burden of proving that he is entitled to it. Id.
Petitioner asserts that he entitled to equitable tolling because of his
postconviction counsel’s erroneous advice that he had a whole year after the trial court
issued its order on his motion for relief from judgment to file his habeas petition.
The fact that Petitioner may be ignorant of the law and instead chose to rely on
counsel, in itself, does not provide a basis for equitable tolling. Neither a prisoner’s pro
se status nor his lack of knowledge of the law constitute extraordinary circumstances
justifying equitable tolling. Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich.
2002); Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted
pro se representation alone or procedural ignorance as an excuse for prolonged
inattention when a statute’s clear policy calls for promptness”).
Likewise, errors by postconviction counsel in advising Petitioner about statute of
limitations calculations do not provide a basis for equitable tolling of the limitations
-6-
period. Because “mistakes of counsel are constructively attributable to the client,”
garden-variety errors by counsel are “‘not sufficient to warrant equitable tolling,
particularly in the postconviction context where prisoners have no constitutional right to
counsel.’” Holland, 560 U.S. at 656 (Alito, J., concurring in part and dissenting in part)
(quoting Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)).
That is not to say that the conduct of postconviction counsel cannot ever provide
grounds for equitable tolling. “Extraordinary” or “egregious” attorney conduct, such as
actively hindering a prisoner’s ability to file–such as erroneously informing a prisoner
that his habeas petition has been filed when it has not–may justify equitable tolling, see
Holland, 560 U.S. at 651-52. Likewise, illicit drug use by an attorney which clouds their
professional judgment might qualify. See Robertson v. Simpson, 624 F.3d 781, 784-785
(6th Cir. 2010).
But attorney Childers’s incorrect advice is not the sort of extraordinary or
egregious conduct justifying equitable tolling. See Lawrence, 549 U.S. at 336 (“Attorney
miscalculation is simply not sufficient to warrant equitable tolling.”);Griffin v. Rogers, 399
F.3d 626, 637 (6th Cir. 2005) (equitable tolling not appropriate if petitioner’s attorney is
negligent in not ascertaining the filing deadline); Fahy v. Horn, 240 F.3d 239, 244 (3d
Cir. 2001) (“attorney error, miscalculation, inadequate research, or other mistakes have
not been found to rise to the ‘extraordinary’ circumstances required for equitable
tolling”); Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000) (attorney’s
misreading of AEDPA did not require equitable tolling); Lott v. Prelesnik, 2012 U.S. Dist.
LEXIS 40820, 2012 WL 1029217, * 5 (W.D. Mich. March 26, 2012).
Moreover, despite his attorney’s mistake, Petitioner was nevertheless less than
-7-
diligent. In particular, Petitioner’s communication to his attorney indicated that he
conducted his own legal research and (correctly) determined that he was required to
appeal the denial of his postconviction motion through the state appellate courts, and
that if he had, the limitations period would have been tolled for that period. This
communication occurred on January 2, 2014. At that point, Petitioner certainly had good
reason to suspect a problem, but yet he waited until the day before Childers’s incorrect
deadline to retain his current attorney. This long span of time with no attempt by
Petitioner to pursue his rights suggests a lack of diligence. See Hall v. Warden,
Lebanon Correctional Inst., 662 F.3d 745, 751 (6th Cir. 2011) (petitioner’s failure to
pursue his rights in five month period in which he still had time to file habeas petition
“suggests a lack of diligence”). Accordingly, the Court concludes that Petitioner is not
entitled to equitable tolling of the limitations period. The petition will therefore be denied
as untimely.
IV. Conclusion
Before Petitioner may appeal, a certificate of appealability must issue. See 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 relief on the merits, the substantial
showing threshold is met if the petitioner demonstrates that reasonable jurists would
find the court’s assessment of the claim debatable or wrong. See 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
-8-
of a constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Id. Having undertaken the requisite
review, the Court concludes that, in rulings to the contrary, jurists of reason would
certainly find the court’s procedural ruling that the petition is untimely debatable. In
particular, reasonable jurists would debate whether the statute of limitations was tolled
under §2244(d)(2) during the period Petitioner could have, but did not, appeal the trial
court’s order denying him postconviction relief.
V. Order
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED.
IT IS FURTHER ORDERED that a copy of this opinion and order by served upon
the Michigan Attorney General, Appellate Division.
Dated: November 24, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 24, 2014, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?