Garvin v. MacLaren

Filing 8

MEMORANDUM AND ORDER GRANTING RESPONDENTS MOTION TO DISMISS (Doc. 5)AND DENYING A CERTIFICATE OF APPEALABILITY. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STANFORD GARVIN,
Petitioner,
v.

Case No. 17-10206
HON. AVERN COHN

DUNCAN MACLAREN,
Respondent.
_____________________________________/
MEMORANDUM AND ORDER
GRANTING RESPONDENT’S MOTION TO DISMISS (Doc. 5)
AND DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Stanford Garvin (Petitioner) is a
state prisoner serving a sentence of 60 to 90 years. The petition challenges Petitioner’s
1989 guilty plea convictions of assault with intent to commit murder, M.C.L. § 750.83,
unlawful driving away of an automobile, M.C.L. § 750.413, and possession of a firearm
during the commission of a felony, M.C.L. § 750.227b. The petition raises two claims:
(1) Petitioner’s direct appeal should be reinstated where the lack of a direct appeal
violated his constitutional rights, and (2) Petitioner should be allowed to withdraw his
plea.
Before the Court is Respondent’s motion to dismiss on the grounds the petition is
untimely. For the reasons that follow, the motion will be granted.
II. Background
Petitioner pled guilty to the above offenses on September 14, 1988. The trial

court sentenced him on February 16, 1989.
According to Petitioner, “on or about 4/25/89, [he] sent a copy of his request for
appointment of counsel” to the trial court. See Docs. 1, 7. He says that he “continued
to send letters concerning the status of his request for appointment of counsel, right to
appeal, but received no response. After years of letters, the Wayne County Clerks
Office finally answered Petitioner’s letter, dated April 21, 2009.” Id. The trial court’s
docket sheet, however, does not include any entries between the date of sentencing
and an order for the production of transcripts dated July 30, 2009. Doc. 5, App’x B.
Eventually, on July 30, 2009, the trial court granted Petitioner’s request for
appointment of counsel and appointed the State Appellate Defender to represent
Petitioner.
For reasons not known, appellate counsel did not file any post-conviction
proceeding until years later. In September of 2014, a motion for relief from judgment
was filed in the trial court. The trial court denied the motion on January 26, 2015. Doc.
5, App’x B.
Petitioner filed a delayed application for leave to appeal in the Michigan Court of
Appeals. The Michigan Court of Appeals and Michigan Supreme Court denied
Petitioner’s application for leave in standard orders. People v. Garvin, No. 328480
(Mich. Ct. App. Sept.11, 2015); People v. Garvin, 499 Mich. 967 (June 26, 2016) (table).
Petitioner signed and dated the instant petition on January 13, 2017.
III. Discussion
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
(AEDPA). The AEDPA provides a one-year period of limitation for a habeas petition
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filed by a state prisoner seeking habeas relief from a state court judgment. 28 U.S.C. §
2244(d)(1). The limitation runs from one of four specified dates, usually either the day
when the judgment becomes final by the conclusion of direct review or the day when the
time for seeking such review expires. § 2244(d)(1)(A). The limitation period is tolled
while “a properly filed application for State post-conviction or other collateral review . . .
is pending.” § 2244(d)(2).
Here, Petitioner’s conviction and sentence became final in 1990 when the time
for him to file a direct appeal of his conviction expired. See Mich. Ct. R. 7.205(F)
(1989). This occurred well before AEDPA’s effective date of April 24, 1996. A prisoner,
such as Petitioner, whose convictions became final before AEDPA’s effective date, was
given a one-year grace period to file their federal habeas petitions. Jurado v. Burt, 337
F.3d 638, 640 (6th Cir. 2003). Thus, Petitioner was required to file his federal habeas
petition on or before April 24, 1997.
The record before the Court indicates that Petitioner did nothing to pursue postconviction relief until he filed a letter in the trial court in 2009, requesting the
appointment of counsel. Petitioner proffers no evidence to support his allegation that he
requested the appointment of appellate counsel after sentencing, or that he filed a
request with the trial court prior to 2009.
While Petitioner ultimately filed a state post-conviction proceeding in 2015, a
state court post-conviction motion does not reset the limitation period. Hargrove v.
Brigano, 300 F.3d 717, 718 n.1 (6th Cir. 2002). When Petitioner submitted the instant
petition in January of 2016, two decades had passed since the one-year grace period
expired. The petition is clearly time-barred.
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Although expired, the limitations period is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 649 (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. (internal quotation marks
omitted). The party seeking equitable tolling bears the burden of proving that he is
entitled to it. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010).
Here, Petitioner says that he filed a request for the appointment of appellate
counsel immediately after sentencing, but the trial court failed to act on it, and it failed to
respond to numerous subsequent requests. Even assuming that the trial court’s alleged
failure to act on an initial motion to appoint counsel constitutes an “extraordinary
circumstance,” the Supreme Court in Pace v. DiGuglielmo, 544 U.S. 408, 418-19
(2005), made clear that the availability of equitable tolling is also dependent on the
Petitioner acting diligently after the extraordinary circumstance occurs.
Assuming Petitioner sent multiple requests for the appointment of counsel to the
trial court between 1989 and 2009, he did not act with diligence during that twenty year
period to preserve his claim that the trial court was depriving him of his right to appeal.
The Sixth Circuit has stated that “‘[w]hile . . . the realities of incarceration may justifiably
delay a petitioner’s request for a case status update, . . . this Court has never granted
equitable tolling to a petitioner who sat on his rights for a year and a half.’” Robinson v.
Easterling, 424 F. App’x 439, 443 (6th Cir. 2011).
Here, Petitioner sat on his rights for twenty years in the face of the trial court’s
alleged failure to act on his requests for the appointment of counsel. His delay far
exceeded that which the Sixth Circuit has previously found excessive and inappropriate.
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See Id. at 440-41; Keeling v. Warden, Lebanon Correctional Inst., 673 F.3d 452, 463-64
(6th Cir. 2012). In short, Petitioner has not shown that he is entitled to equitable tolling.
IV. Conclusion
For the reasons stated above, the petition is DISMISSED as untimely.
Furthermore, reasonable jurists would not debate the Court’s assessment of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further. The
Court therefore DENIES a certificate of appealability under 28 U.S.C. § 2253(c)(2).1 See
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.

Dated: September 26, 2017
Detroit, Michigan

_
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

1

“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
5