Cruz-Rivera v. Palmer

Filing 7

OPINION and ORDER Dismissing the Habeas Petition 1 , Denying A Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIGUEL ANGEL CRUZ-RIVERA, #768420,
Petitioner,
CASE NO. 2:16-CV-13993
HON. DENISE PAGE HOOD

v.
CARMEN PALMER,
Respondent.
_________________________________/

OPINION AND ORDER DISMISSING THE HABEAS PETITION, DENYING
A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
Michigan prisoner Miguel Angel Cruz-Rivera (“Petitioner”) has filed a pro

se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was convicted of first-degree murder and felony firearm following
a jury trial in the Wayne County Circuit Court and sentenced to consecutive
terms of life imprisonment without parole and two years imprisonment in 2010.
In his petition, he raises claims concerning the trial court’s denial of a request
to view the crime scene, the trial court’s denial of the jury’s request for
transcripts, the composition of the jury, the jury instructions, and the
effectiveness of trial and appellate counsel.

Upon conducting an initial review of the petition, the Court ordered
Petitioner to show cause why his petition should not be dismissed as untimely
under the one-year statute of limitations applicable to federal habeas actions.
Petitioner filed a timely response to the Court's show cause order asserting
that the one-year period should be equitably tolled because he is a Spanish
speaker who does not understand the English language and he had difficulty
obtaining legal assistance or help from other prisoners.

Having further

reviewed the matter, the Court concludes that the habeas petition is untimely
and must be dismissed. The Court also concludes that a certificate of
appealability and leave to proceed in forma pauperis on appeal must be
denied.
II.

Procedural History
Petitioner was convicted and sentenced in 2010. Following sentencing,

he filed an appeal of right with the Michigan Court of Appeals raising claims
concerning the effectiveness of trial counsel relative to the trial court’s denial
of a request to view the crime scene and the trial court’s denial of the jury’s
request for transcripts. The court denied relief on those claims and affirmed
his convictions. People v. Cruz-Rivera, No. 298786, 2011 WL 6186835 (Mich.
Ct. App. Dec. 13, 2011) (unpublished). Petitioner filed an application for leave

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to appeal with the Michigan Supreme Court, which was denied. People v.
Cruz-Rivera, 493 Mich. 879, 821 N.W.2d 783 (Oct. 31, 2012).
On October 30, 2013, Petitioner filed a motion for relief from judgment
with the state trial court raising claims concerning the composition of the jury,
the jury instructions, and the effectiveness of trial and appellate counsel. See
Petition, p. 4. The trial court denied the motion on April 30, 2014. See
Register of Actions, People v. Cruz-Rivera, Case No. 09-029738-01-FC
(Wayne Co. Cir. Ct.). Petitioner then filed an application for leave to appeal
with the Michigan Court of Appeals, which was denied pursuant to Michigan
Court Rule 6.508(D)(3)(a) and (b). People v. Cruz-Rivera, No. 324335 (Mich.
Ct. App. Dec. 19, 2014) (unpublished). Petitioner filed an application for leave
to appeal with the Michigan Supreme Court, which was similarly denied.
People v. Cruz-Rivera, 498 Mich. 919, 871 N.W.2d 171 (Nov. 24, 2015).
Petitioner dated his federal habeas petition on October 25, 2016 and it
was filed by the Court on November 10, 2016. The Court issued its show
cause order on December 29, 2016. Petitioner dated his reply on January 9,
2017 and it was filed by the Court on January 17, 2017.
III.

Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

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codified at 28 U.S.C. § 2241 et seq., includes a one-year period of limitations
for habeas petitions brought by prisoners challenging state court judgments.
The statute provides:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period 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
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(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 under this subsection.
28 U.S.C. § 2244(d). A habeas petition filed outside the proscribed time
period must be dismissed. See Isham v. Randle, 226 F.3d 691, 694-95 (6th

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Cir. 2000) (dismissing case filed 13 days late); Wilson v. Birkett, 192 F. Supp.
2d 763, 765 (E.D. Mich. 2002).
A preliminary question in this case is whether Petitioner has complied
with the one-year statute of limitations. “[D]istrict courts are permitted . . . to
consider sua sponte, the timeliness of a state prisoner’s federal habeas
petition. Day v. McDonough, 547 U.S. 198, 209 (2006).
Petitioner’s convictions and sentences became final after the AEDPA’s
April 24, 1996 effective date. The Michigan Supreme Court denied leave to
appeal on direct appeal on October 31, 2012. Petitioner’s convictions became
final 90 days later, see Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (a
conviction becomes final when “the time for filing a certiorari petition expires”);
Lawrence v. Florida, 549 U.S. 327, 333 (2007); S. Ct. R. 13(1), on or about
January 29, 2013. Accordingly, Petitioner was required to file his federal
habeas petition by January 29, 2014, excluding any time during which a
properly filed application for state post-conviction or collateral review was
pending in accordance with 28 U.S.C. § 2244(d)(2).
Petitioner filed his motion for relief from judgment with the state trial
court on October 30, 2013. At that point, approximately nine months (274
days) of the one-year period had expired. Petitioner’s motion and related

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appeals remained pending in the state courts, thereby tolling the one-year
period, see 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221
(2002), until November 24, 2015. Petitioner then had about three months (91
days), until February 23, 2016, to file his federal habeas petition. The
AEDPA’s limitations period does not begin to run anew after the completion
of state post-conviction proceedings. Searcy v. Carter, 246 F.3d 515, 519
(6th Cir. 2001). Petitioner, however, did not date his federal habeas petition
until October 25, 2016 – more than eight months after the one-year period had
expired.
Petitioner does not allege that the State created an impediment to the
filing of his habeas petition or that his habeas claims are based upon newlydiscovered evidence or newly-enacted, retroactively applicable law. His
habeas petition is therefore untimely under 28 U.S.C. § 2244(d).
The United States Supreme Court has confirmed that 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’ and prevented timely filing.” Id.

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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)).
Petitioner asserts that he is entitled to equitable tolling of the one-year
period because he is a Spanish speaker who does not understand English
and he had difficulty obtaining legal assistance or help from other prisoners.
The mere fact that Petitioner is a Spanish speaker who does not understand
English is insufficient to warrant tolling of the one-year period. As the United
States Court of Appeals for the Sixth Circuit has explained, “An inability to
speak, write and/or understand English, in and of itself, does not automatically
give a petitioner reasonable cause for failing to know about the legal
requirements for filing his claims.” Cobas v. Burgess, 306 F.3d 441, 444 (6th
Cir. 2002); see also Torres v. Willis, 416 F. App’x 480, 482 (6th Cir. 2011)
(citing Cobas). “Were this Court to allow equitable tolling because of asserted

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language difficulties, AEDPA’s time requirement would essentially be
eviscerated for all petitioners claiming to be non-English speaking. Such a
result is contrary to common sense.” Soto v. Birkett, No. 5:06-CV-54, 2006
WL 2850578, *7 (W.D. Mich. Oct. 3, 2006) (quoting Cortez v. Petrovsky, No.
803 CV1482T30MSS, 2006 WL 289113, *1-2 (M.D. Fla. Feb. 7, 2006).
Petitioner also seems to assert that he is entitled to equitable tolling
because the Michigan prisons do not have enough Spanish speaking legal
writers to assist Spanish speaking prisoners. Such a circumstance does not
justify equitable tolling. Id. (citing cases); see also Nguvyen v. Golder, 133 F.
App’x 521, 523-24 (10th Cir. 2005) (tolling not warranted due to lack of
Vietnamese interpreter); Cortez, 2006 WL 289113 at *1-2 (failure to provide
Spanish speaking interpreters to non-English speaking inmates in Florida
prisons does not warrant equitable tolling); Fennell v. Artuz, 14 F. Supp. 2d
374, 377 (S.D. N.Y. 1998) (tolling the statute of limitations for prisoners while
they learn English and educate themselves in the law would defeat the limiting
purposes of AEDPA).
Petitioner relatedly asserts that he had difficulty obtaining help from a
Spanish speaking legal writer and/or other prisoners due to the limited number
of Spanish speakers with legal knowledge and the expense of obtaining such

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assistance. Petitioner, however, fails to show that such assistance was
unavailable to him throughout the one-year period.

Rather, the record

indicates that he was able to pursue collateral review in the state courts by
filing a motion for relief from judgment and related appeals during the running
of the one-year period (thereby statutorily tolling the period for some time)
despite his inability to speak English. “W]here a petitioner's alleged lack of
proficiency in English has not prevented the petitioner from accessing the
courts, the lack of proficiency is insufficient to justify equitable tolling of the
statute of limitations.” Cobas, 306 F.3d at 444; see also Musleh v. Harry, No.
06-14108, 2008 WL 360644, *4 (E.D. Mich. Feb. 8, 2008) (Lawson, J.) (citing
Cobas and rejecting similar tolling argument).
Petitioner fails to indicate with any specificity what steps he took to
educate himself, to acquire legal materials in Spanish, and/or to obtain
assistance from fellow prisoners, prison officials, or outside sources, during
the relevant time period. It is well-established that a prisoner must act with
due diligence in order to be entitled to equitable tolling. See Holland, 560 U.S.
at 649; see also Perez v. Dowling, 634 F. App’x 639, 645 (10th Cir. 2015)
(citing cases and ruling that prisoner was not entitled to equitable tolling due
to language barrier where he failed to show diligence); Aureoles v. Secretary,

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Dep’t of Corr., 609 F. App’x 623 (11th Cir. 2015) (prisoner not entitled to
equitable tolling due to language barrier where he failed to show what steps
he took to educate himself or take action); Diaz v. Kelly, 515 F.3d 149, 154
(2d Cir. 2008) (equitable tolling rejected where petitioner failed to detail efforts
to obtain help from prison and non-prison sources); Mendoza v. Carey, 449
F.3d 1065, 1070 (9th Cir. 2006) (prisoner who seeks equitable tolling based
upon a language barrier must show that he made a diligent effort to acquire
legal materials in his own language or to obtain assistance from another
prisoner, prison personnel, or another source). Petitioner makes no such
showing. He fails to demonstrate that he acted diligently to protect his rights
to warrant equitable tolling of the one-year period.
Lastly, the fact that Petitioner is untrained in the law, is (or was)
proceeding without a lawyer or other legal assistance, and/or may have been
unaware of the statute of limitations for a period of time does not warrant
tolling. See Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th
Cir. 2012) (pro se status is not an extraordinary circumstance); Allen, 366
F.3d at 403 (ignorance of the law does not justify tolling); Cobas, 306 F.3d at
444 (illiteracy is not a basis for equitable tolling); Rodriguez v. Elo, 195 F.
Supp. 2d 934, 936 (E.D. Mich. 2002) (the law is “replete with instances which

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firmly establish that ignorance of the law, despite a litigant’s pro se status, is
no excuse” for failure to follow legal requirements); Holloway v. Jones, 166 F.
Supp. 2d 1185, 1189 (E.D. Mich. 2001) (lack of legal assistance does not
justify tolling); Sperling v. White, 30 F. Supp. 2d 1246, 1254 (C.D. Cal. 1998)
(citing cases stating that ignorance of the law, illiteracy, and lack of legal
assistance do not justify tolling). Petitioner fails to demonstrate that he is
entitled to equitable tolling under Holland.
Both the United States Supreme Court and the United States Court of
Appeals for the Sixth Circuit have held that a credible claim of actual
innocence may equitably toll the one-year statute of limitations. McQuiggin
v. Perkins, _ U.S. _, 133 S. Ct. 1924, 1928 (2013); Souter v. Jones, 395 F.3d
577, 588-90 (6th Cir. 2005). As explained in Souter, to support a claim of
actual innocence, a petitioner in a collateral proceeding “must demonstrate
that, in light of all the evidence, it is more likely than not that no reasonable
juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623
(1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also House
v. Bell, 547 U.S. 518, 537-39 (2006). A valid claim of actual innocence
requires a petitioner “to support his allegations of constitutional error with new
reliable evidence – whether it be exculpatory scientific evidence, trustworthy

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eyewitness account, or critical physical evidence – that was not presented at
trial.” Schlup, 513 U.S. at 324. Actual innocence means “factual innocence,
not mere legal insufficiency.” Bousley, 523 U.S. at 623. In keeping with
Supreme Court authority, the Sixth Circuit has recognized that the actual
innocence exception should “remain rare” and “only be applied in the
‘extraordinary case.’” Souter, 395 F.3d at 590 (quoting Schlup, 513 U.S. at
321).
Petitioner makes no such showing. His assertion that his habeas claims
have merit does not establish his actual innocence. See, e.g., Craig v. White,
227 F. App'x 480, 481 (6th Cir. 2007). His own self-serving, conclusory
assertion of innocence is insufficient to support an actual innocence claim. A
“reasonable juror surely could discount [a petitioner’s] own testimony in
support of his own cause.” McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir.
2007) (citing cases). Petitioner fails to establish that he is entitled to equitable
tolling of the one-year period. His habeas petition is therefore untimely and
must be dismissed.
IV.

Conclusion
Based upon the foregoing discussion, the Court concludes that the

habeas petition is untimely.

Accordingly, the Court DISMISSES WITH

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PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, 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 district 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. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). When a district 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 of a constitutional right, and
that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling. Id. In this case, jurists of reason could not find
the Court’s procedural ruling that the habeas petition is untimely debatable.
Accordingly, the Court DENIES a certificate of appealability.
Lastly, the Court finds that an appeal from this decision cannot be taken
in good faith. See Fed. R. App. P. 24(a). Accordingly, the Court DENIES
Petitioner leave to proceed in forma pauperis on appeal.

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IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: May 19, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on May 19, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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