Roby v. Burt

Filing 10

OPINION and ORDER Denying 7 Motion to Dismiss and Compelling Answer Addressing Petitioner's Merits and the Rule 5 Materials. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DYTERIUS ROBY,
Petitioner,

Civil No. 2:16-CV-12727
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE

v.
S.L. BURT,
Respondent,
___________________________/

OPINION AND ORDER DENYING THE MOTION TO DISMISS AND
COMPELLING ANSWER ADDRESSING PETITION’S MERITS AND THE
RULE 5 MATERIALS
Dyterius Roby, (“Petitioner”), presently confined at the Muskegon Correctional
Facility in Muskegon, Michigan, has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, in which he challenges his conviction for assault with intent to commit
murder, carrying a weapon with unlawful intent, felon in possession of a firearm, and felonyfirearm. Respondent filed a motion to dismiss, contending that petitioner failed to comply
with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). Petitioner filed a reply
to the motion. For the reasons stated below, the motion to dismiss is denied and respondent
is ordered to file an answer addressing the merits of the petition within sixty days of the
Court’s order.
I. Background
Petitioner was convicted following a jury trial in the Saginaw County Circuit Court.
Petitioner’s direct appeals with the Michigan courts ended on April 23, 2012, when the
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Michigan Supreme Court denied petitioner leave to appeal after the Michigan Court of
Appeals affirmed his conviction. People v. Roby, 491 Mich. 909; 810 N.W. 2d 907 (2012).
Petitioner filed a post-conviction motion for relief from judgment with the trial court
on May 20, 2013, which the trial court denied. After the Michigan Court of Appeals denied
petitioner leave to appeal, collateral review of petitioner’s conviction ended in the state
courts on May 2, 2016 when the Michigan Supreme Court denied petitioner’s post-conviction
appeal. People v. Roby, 499 Mich. 913, 878 N.W. 2d 287 (2016).
Petitioner’s habeas petition was signed and dated July 15, 2016.
II. Discussion
Respondent has filed a motion to dismiss, contending that the current application for
writ of habeas corpus is time barred by the one year statute of limitations contained in the
Antiterrorism and Effective Death Penalty Act. (AEDPA). Both parties, however, have
referred to matters outside of their pleadings to support or oppose the motion to dismiss. On
a motion to dismiss, a federal district court may consider “matters outside the pleading.”
However, “the motion shall [then] be treated as one for summary judgment and disposed of
as provided in Rule 56, and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.” Briggs v. Ohio Election Commission,
61 F. 3d 487, 493 (6th Cir. 1995)(quoting Fed.R.Civ.P. 12(b)(6)). Because the parties in this
case have asked this Court to consider matters outside the pleadings, the Court will view
Respondent’s motion as one for summary judgment. Pottinger v. Warden, Northpoint
Training Center, 716 F. Supp. 1005, 1007 (W.D. Ky. 1989)(citing to Fed.R.Civ.P. 12(b));
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See also Mayne v. Hall, 122 F. Supp. 2d 86, 88, fn. 2 (D. Mass. 2000)(construing motion to
dismiss habeas petition as being time barred under the AEDPA’s statute of limitations as
being a motion for summary judgment).
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Sanders v. Freeman, 221 F. 3d 846, 851 (6th Cir. 2000). To defeat a
motion for summary judgment, the non-moving party must set forth specific facts sufficient
to show that a reasonable factfinder could return a verdict in his favor. Sanders, 221 F. 3d
at 851. The summary judgment rule applies to habeas proceedings. See Redmond v. Jackson,
295 F. Supp. 2d 767, 770 (E.D. Mich. 2003).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one year statute
of limitations shall apply to an application for writ of habeas corpus by a person in custody
pursuant to a judgment of a state court. See Corbin v. Straub, 156 F. Supp. 2d 833, 835 (E.D.
Mich. 2001). The one year statute of limitation 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.
28 U.S.C. § 2244(d)(1).
Although not jurisdictional, the AEDPA’s one year limitations period “effectively bars
relief absent a showing that the petition’s untimeliness should be excused based on equitable
tolling and actual innocence.” See Akrawi v. Booker, 572 F. 3d 252, 260 (6th Cir. 2009).
In the present case, the Michigan Supreme Court denied petitioner’s application for
leave to appeal the denial of his appeal of right by the Michigan Court of Appeals on April
23, 2012. Where a state prisoner has sought direct review of his conviction in the state’s
highest court but does not file a petition for certiorari with the U.S. Supreme Court, the one
year limitation period for seeking habeas review under 28 U.S.C. § 2244(d)(1) begins to run
not on the date that the state court entered judgment against the prisoner, but on the date that
the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Petitioner’s judgment became final on
July 22, 2012, when he failed to file a petition for writ of certiorari with the U.S. Supreme
Court. See Thomas v. Straub, 10 F. Supp. 2d 834, 835 (E.D. Mich. 1998). Absent state
collateral review, petitioner would have been required to file his petition for writ of habeas
corpus with this Court no later than July 22, 2013 in order for the petition to be timely filed.
Petitioner filed his post-conviction motion for relief from judgment with the state trial
court at the earliest, on May 20, 2013, after three hundred and one days had already elapsed
on the one year statute of limitations. 28 U.S.C. § 2244(d)(2) expressly provides that the
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time during which a properly filed application for state post-conviction relief or other
collateral review is pending shall not be counted towards the period of limitations contained
in the statute. Corbin v. Straub, 156 F. Supp. 2d 833, 836 (E.D. Mich. 2001). The tolling of
the AEDPA’s one year statute of limitations ended in this case when the Michigan Supreme
Court denied petitioner’s application for leave to appeal the denial of his motion for relief
from judgment on May 2, 2016. Hudson v. Jones, 35 F. Supp. 2d 986, 988-989 (E.D. Mich.
1999). Petitioner had sixty four days remaining, or until July 6, 2016, to file his habeas
petition.
Respondent contends that the petition is untimely because it was signed and dated July
15, 2016, after the July 6, 2016 deadline. Petitioner, in his reply brief, indicates that he hand
delivered his habeas petition to the prison’s case manager on July 5, 2016 to be mailed to this
Court.
Under the “prison mailbox rule,” submissions by pro se petitioners are considered
filed at the moment of delivery to prison officials for mailing. See Houston v. Lack, 487 U.S.
266, 271–72 (1988). Petitioner has attached to his reply brief a CSJ-318 Disbursement
Authorization (Expedited Legal Mail-Prisoner) form dated July 5, 2016, which shows the
mailing address for this Court. See Petitioner’s Exhibit 1. Petitioner has also signed an
affidavit that he personally delivered his habeas petition to his prison counselor on July 5,
2016 and that he mistakenly signed and dated his petition July 15, 2016. See Petitioner’s
Exhibit 2.

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Petitioner has sworn, under penalty of perjury, that he presented his habeas petition
to prison officials on July 5, 2016, and not on July 15, 2016. As such, this Court accepts that
date as the filing date, under the prison mailbox rule, and concludes that the petition for writ
of habeas corpus was timely filed. See e.g. Miller v. Collins, 305 F. 3d 491, 497-98 (6th Cir.
2002).
Because there is insufficient evidence to conclude that the habeas petition is time
barred by the statute of limitations, the Court will deny the motion to dismiss and order the
Respondent to file an answer that responds to the merits of Petitioner’s habeas claims within
sixty days of the Court’s order. See Erwin v. Elo, 130 F. Supp. 2d 887, 890-91 (E.D. Mich.
2001); See also Corbin, 156 F. Supp. 2d at 837.
The Court also orders Respondent to provide any Rule 5 materials that it has not
already provided at the time it files its answer. The habeas corpus rules require respondents
to attach the relevant portions of the transcripts of the state court proceedings, if available,
and the court may also order, on its own motion, or upon the petitioner’s request, that further
portions of the transcripts be furnished. Griffin v. Rogers, 308 F. 3d 647, 653 (6th Cir. 2002);
Rules Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254.
ORDER
Accordingly, the Court ORDERS that the motion to dismiss [Dkt. # 7] is DENIED.
The Court further ORDERS Respondent to submit an answer addressing the merits
of petitioner’s habeas claims within SIXTY DAYS of the date of this order. Respondent is

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further ordered to provide any additional Rule 5 materials that have not already been filed
with the Court at the time that it files its answer.

Dated: March 23, 2017

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

I hereby certify that on March 23, 2017, the foregoing document was served on counsel of
record via electronic means and upon Dyterius Roby via First Class mail at the address
below:
Dyterius Roby
529870
MUSKEGON CORRECTIONAL FACILITY
2400 S. SHERIDAN
MUSKEGON, MI 49442

s/J. McCoy
Case Manager

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