Brown v. Palmer

Filing 10

OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus filed by Dantoine Brown. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANTOINE BROWN,
Petitioner,
Case Number 15-12740
Honorable David M. Lawson

v.
CARMEN PALMER,
Respondent.
_______________________________/

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Dantoine Brown was convicted on a plea of guilty to charges of manslaughter and
armed robbery and sentenced to lengthy prison sentences. He challenges his convictions and
sentences in a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. In his petition,
Brown argues that the trial court failed to obtain a sufficient factual basis for his guilty plea and that
he received ineffective assistance of counsel. After reviewing the petition and the state’s response,
the Court finds that one issue is fatal to Brown’s request for relief: the untimeliness of his petition.
Because Brown did not comply with the one-year statute of limitations applicable to federal habeas
actions, see 28 U.S.C. § 2244(d)(1), and the petition is not saved by statutory or equitable tolling,
the Court must dismiss the petition and deny relief.
I.
The petitioner’s convictions arise from an armed robbery and the strangling death of Jeanne
Hank in March 2011. The petitioner was charged with felony murder, armed robbery, open murder,
and unlawfully driving away an automobile. On February 7, 2012, the prosecutor moved to amend
the open murder charge to a charge of manslaughter. The trial court allowed the amendment. The
petitioner then pleaded guilty to manslaughter and armed robbery, pursuant to a plea agreement

calling for the dismissal of the remaining charges, a minimum sentence of ten years, no consecutive
sentencing, and requiring the petitioner to testify as needed by the prosecutor.
On March 19, 2012, the petitioner was sentenced in accordance with the terms of the plea
agreement to 10 to 15 years in prison for manslaughter and 10 to 50 years for armed robbery. The
petitioner did not file an application for leave to appeal the judgment of conviction to the Michigan
Court of Appeals. Instead, on December 7, 2012, the petitioner, through counsel, filed a motion for
relief from judgment in the trial court, claiming that an insufficient factual basis supported his plea
and that his trial attorney was ineffective for failing to raise this issue at the time of the plea. The
trial court denied the motion on May 3, 2013. The petitioner filed a delayed application for leave
to appeal in the Michigan Court of Appeals, raising the same claims raised in his motion for relief
from judgment. The Michigan Court of Appeals denied leave to appeal “for lack of merit in the
grounds presented.” People v. Brown, No. 318719 (Mich. Ct. App. Feb. 21, 2014). The Michigan
Supreme Court also denied leave to appeal. People v. Brown, 496 Mich. 867 (July 29, 2014).
The petitioner filed his habeas petition on July 27, 2015, raising the same claims that he
raised on collateral review in state court. The respondent filed an answer in opposition arguing that
the petition was not timely filed, the sufficiency of the evidence claim is not cognizable on habeas
review, and both claims are meritless.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became effective
on April 24, 1996 and governs the filing date for this action because the petitioner filed his petition
after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA
amended 28 U.S.C. § 2244 to include a one-year period of limitations for habeas petitions brought

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by prisoners challenging state court judgments. Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir.
2003). The one-year statute of limitations 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;
(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). A habeas petition filed outside the prescribed time period must be
dismissed. See Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009); Wilson v. Birkett, 192 F. Supp.
2d 763, 765 (E.D. Mich. 2002).
The petitioner was sentenced on March 19, 2012. He had six months from that date to file
a delayed application for leave to appeal with the Michigan Court of Appeals. See Mich. Ct. R.
7.205(G)(3), but he did not pursue any direct appeal. His convictions thus became final on
September 19, 2012, when the time for filing an application for leave to appeal to the Michigan
Court of Appeals expired. See Williams v. Birkett, 670 F.3d 729, 731 (6th Cir. 2012) (petitioner’s
conviction became final when the time for seeking review under state court rule expired); see also
Gonzalez v. Thaler, --- U.S. ---, 132 S. Ct. 641, 656 (2012) (when a petitioner does not seek review
in a state’s highest court, the judgment becomes final when the time for seeking such review
expires). The one-year limitations period commenced on the following day, September 20, 2012.
See Fed. R. Civ. P. 6(a) (excluding the “day of the event that triggers the period” when calculating

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a period of time); Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000). The one-year limitations
period continued to run until December 10, 2012, when the petitioner filed a motion for relief from
judgment. The motion for relief from judgment tolled the limitations period with 284 days
remaining. See 28 U.S.C. § 2244(d)(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.”). The limitations period continued
to be tolled until July 29, 2014, when the Michigan Supreme court denied the petitioner’s
application for leave to appeal. The limitations period resumed on July 30, 2014. It continued to
run, uninterrupted, until it expired 284 days later, on May 10, 2015. Because May 10, 2015 was a
Sunday, the petitioner had until May 11, 2015, to file a timely habeas corpus petition. Fed. R. Civ.
P. 6(a)(1)(C). The petitioner filed his habeas petition on July 27, 2015, more than two months after
the limitations period expired.
The petitioner does not contend that he is entitled to a new one-year period because the State
created an impediment to a timely filing, that his claims are based upon newly-discovered facts, or
that his claims arise from newly-created rights recognized by the United States Supreme Court and
made retroactive to cases on collateral review. See 28 U.S.C. § 2244(d)(1)(B), (C), (D). He also
did not argue in his petition that his failure to file within the applicable limitation period should be
excused by equitable tolling, and he has not alleged any facts or circumstances that would warrant
equitable tolling in this case. The one-year statute of limitations is not a jurisdictional bar and is
subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). The Supreme Court has
explained 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’

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and prevented timely filing.” Id. at 649 (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 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 v. Burt, 337 F.3d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)). The petitioner has not suggested any
grounds on which his untimely filing could be excused, and the petition therefore must be dismissed.
III.
The petition for a writ of habeas corpus was not filed within the time permitted by 28 U.S.C.
§ 2244(d), and the petitioner has not shown that he is entitled to statutory or equitable tolling of the
one-year limitations period.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DISMISSED
WITH PREJUDICE.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: December 14, 2016
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on December 14, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI

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