Greene v. MacLaren

Filing 16

OPINION AND ORDER DISMISSING WITH PREJUDICE 1 Petition for Writ of Habeas Corpus filed by Loren Greene; DENYING 3 MOTION Independent Action DENYING 2 , MOTION for Evidentiary Hearing filed by Loren Greene; DECLINING to issue a Certificate of Appealability and DENYING leave to Proceed Informa Pauperis on Appeal Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_________________________________________________________________
LOREN DEPREE GREENE,
Petitioner,

Civil No. 2:17-CV-11078-DT

v.
DUNCAN MACLAREN,
Respondent,
/
OPINION AND ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR
LEAVE TO APPEAL IN FORMA PAUPERIS
Loren Depree Greene, (“Petitioner”), incarcerated at the Kinross Correctional
Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction for
third-degree fleeing and eluding,1 driving on a suspended license,2 and being a fourth
felony habitual offender.3 Respondent filed a motion to dismiss, contending that the
petition was not timely filed in accordance with the statute of limitations contained in 28
U.S.C. § 2244 (d)(1). Petitioner filed a response to the motion. For the reasons stated
herein, the court will summarily dismiss with prejudice the petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2244(d)(1).

1

Mich. Comp. Laws § 750.479a(3); Mich. Stat. Ann. 28.747(1)(3).

2

Mich. Comp. Laws § 257.904(3)(b); Mich.Stat. Ann. 9.2604(3)(b).

3

Mich. Comp. Laws § 769.12; Mich. Stat. Ann. 28.1084.
1

I. Background
Petitioner was convicted following a jury trial in the Jackson County Circuit Court.
On December 19, 2002, Petitioner was sentenced to three to fifteen years in prison.
The Michigan Court of Appeals affirmed Petitioner’s conviction on April 27, 2014.
People v. Greene, No. 245899, 2004 WL 895956 (Mich. Ct. App. Apr. 27, 2004).
Petitioner did not file an application for leave to appeal to the Michigan Supreme Court.4
On June 27, 2005, Petitioner filed a post-conviction motion for relief from
judgment pursuant to Mich. Ct. R. 6.500, et. Seq.5 After the trial judge denied the
motion and the Michigan Court of Appeals denied Petitioner’s application for leave to
appeal, collateral review of Petitioner’s conviction ended in the state courts on
November 29, 2006, when the Michigan Supreme Court denied Petitioner’s postconviction appeal. People v. Greene, 723 N.W. 2d 855 (Mich. 2006).
On August 9, 2007, Petitioner filed a second motion for relief from judgment,
which was denied on the same date.6 There is no indication from the Jackson County

4

See Affidavit from Larry Royster, Clerk of the Michigan Supreme Court, dated
July 7, 2017 [Dkt. # 14-8].
5

Respondent in his motion to dismiss indicates that the motion for relief from
judgment was filed on July 25, 2005. This Court, in reviewing the Jackson County
Circuit Court docket sheet, See People v. Greene, No. 02-003923-FH (Jackson
Cty.Cir.Ct.), p. 5, Entry # 54 [Dkt. # 14-1], observes that the notation for that date
suggests that it was the prosecutor’s answer to the motion for relief from judgment that
was filed on that date. There is no indication on the docket sheet when Petitioner’s
motion was filed. Petitioner’s first motion for relief from judgment is dated June 27,
2005. See Dkt. # 14-9. Even providing Petitioner the benefit of the doubt that the
motion for relief from judgment was filed on that date, he is not entitled to relief from this
court.
6

See People v. Greene, No. 02-003923-FH (Jackson Cty.Cir.Ct.), p. 5, [Dkt. #
14-1], p. 5, Entry # 63.
2

Circuit Court docket sheet, the Michigan Court of Appeals website, or Westlaw that
Petitioner ever appealed the denial of this motion to the Michigan appellate courts.7
On July 25, 2015, Petitioner filed what he labeled a motion for independent
action under Mich. Ct. R. 2.612(c)(1)(d).8 The court denied the motion. People v.
Greene, No. 02-003923-FH (Jackson Cty.Cir.Ct. Apr. 21, 2016). The Michigan Court of
Appeals dismissed Petitioner’s appeal. The Michigan Court of Appeals ruled that
Petitioner could not use Mich. Ct. R. 2.612(c)(1)(D) and (3) to bring a post-appeal
challenge to his conviction. The Michigan Court of Appeals further held that Petitioner
was barred under Mich. Ct. R. 6.502(G) from appealing the denial of a successive postconviction motion for relief from judgment. People v. Greene, No. 333218 (Mich.Ct.App.
July 15, 2016). On January 31, 2017, the Michigan Supreme Court denied Petitioner’s
application for leave to appeal because Petitioner's motion for relief from judgment was
prohibited by Mich. Ct. R. 6.502(G). People v. Greene, 889 N.W.2d 273 (Mich. 2017).
Petitioner’s habeas petition was signed and dated March 17, 2017, and filed with
the court on April 5, 2017.9

7

The Court obtained this information from the Michigan Court of Appeals’
website, coa.courts.mi.gov/, and from Westlaw’s website, www.westlaw.com. Public
records and government documents, including those available from reliable sources on
the Internet, are subject to judicial notice. See United States ex. rel. Dingle v. BioPort
Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). A federal district court is also
permitted to take judicial notice of another court’s website. See e.g. Graham v. Smith,
292 F. Supp. 2d 153, 155, n. 2 (D. Me. 2003).
8

Respondent argues in his motion to dismiss that the motion was not filed until
September 15, 2015. Even giving Petitioner the benefit of the doubt that he filed his
motion on an earlier date, the current petition is still untimely.
9

Under the prison mailbox rule, the court assumes that Petitioner actually filed
his habeas petition on March 17, 2017, the date that it was signed and dated. See
3

II. Discussion
A. Statute of Limitations
28 U.S.C. § 2244(d) imposes a one-year statute of limitations upon petitions for
habeas relief:
(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 originally
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.
Although not jurisdictional, the one year limitations period under 28 U.S.C. §
2244(d) “effectively bars relief absent a showing that the petition’s untimeliness should
be excused based on equitable tolling and actual innocence.” Akrawi v. Booker, 572
F.3d 252, 260 (6th Cir. 2009). A petition for writ of habeas corpus must be dismissed
where it has not been filed within the one year statute of limitations. See Holloway v.
Jones, 166 F. Supp. 2d 1185, 1187 (E.D. Mich. 2001).
If a habeas petitioner appeals to the Michigan Supreme Court, but does not
petition the United States Supreme Court for a writ of certiorari, his judgment of
conviction is finalized when the time for taking an appeal to the United States Supreme

Towns v. U.S., 190 F.3d 468, 469 (6th Cir. 1999).
4

Court expires. An individual has 90 days from the entry of his judgment to seek an
appeal to the Supreme Court by filing a petition for a write of certiorari. See Sup.Ct. R.
13 (stating that a petition for a writ of certiorari “is timely when it is filed with the Clerk of
[the Supreme] Court within 90 days after entry of judgment”). The one-year statute of
limitations governing a petition for habeas corpus does not begin to run until the day
after the petition for a writ of certiorari is due in the United States Supreme Court. See
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Therefore, when a petitioner does
not seek an appeal to the Supreme Court his conviction is finalized 91 days after the
entry of judgment.
However, when, as in this case, a habeas petitioner appeals his judgment of
conviction only to the Michigan Court of Appeals and fails to file an application for leave
to appeal to the Michigan Supreme Court, the additional ninety days for filing an appeal
to the United States Supreme Court is not taken into account. See Gonzalez v. Thaler,
565 U.S. 134, 150 (2012)(clarifying that when a petitioner does “not appeal to the
State’s highest court, his judgment [becomes] final when his time for seeking review
with the State’s highest court expire[s]”).
The Michigan Court of Appeals affirmed Petitioner's conviction on April 27, 2004.
Although Petitioner had fifty-six days to file an appeal in the Michigan Supreme Court
from this decision, see Mich. Ct. R. 7.302(C), Petitioner never filed an application for
leave to appeal with the Michigan Supreme Court. The expiration of the fifty-six days
represents the expiration of the time for seeking direct review of Petitioner’s judgment of
conviction, therefore, the one-year statute of limitations began to run at that time.
Gonzalez, 565 U.S. at 150.
5

Because Petitioner did not file an application for leave to appeal to the Michigan
Supreme Court, his conviction became final, for purposes of § 2244(d)(1)(A), on July
26, 2004, when the time for seeking leave to appeal with the Michigan Supreme Court
expired. See Brown v. McKee, 232 F. Supp. 2d 761, 765 (E.D. Mich. 2002); Erwin v.
Elo, 130 F. Supp. 2d 887, 889 (E.D. Mich. 2001). Petitioner had until July 26, 2005 to
timely file his petition for writ of habeas corpus, unless the limitations period was tolled.
1. Procedural Tolling
Petitioner filed his first post-conviction motion for relief from judgment with the
trial court, at the earliest, on June 27, 2005, after three hundred and thirty six days
elapsed under the statute of limitations. 28 U.S.C. § 2244(d)(2) expressly provides that
the 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).
A post-conviction application remains pending in the state courts, for purposes of §
2244(d)(2), until it “has achieved final resolution through the state’s post-conviction
procedures.” Carey v. Safford, 536 U.S. 214, 220 (2002). The tolling of the one year
statute of limitations ended in this case on November 29, 2006 when the Michigan
Supreme Court denied Petitioner’s application for leave to appeal the Michigan Court of
Appeal’s denial of his motion for relief from judgment. Hudson v. Jones, 35 F. Supp. 2d
986, 988-89 (E.D. Mich. 1999). Petitioner had twenty nine days remaining in the oneyear limitations period, or until December 28, 2006, to timely file his petition with this
court.
Petitioner filed his second post-conviction motion for relief from judgment on
6

August 9, 2007, well after the one year limitations period had expired. A state court
post-conviction motion that is filed following the expiration of the limitations period
cannot toll that period pursuant to 28 U.S.C. § 2244(d)(2) because there is no period
remaining to be tolled. See Jurado v. Burt, 337 F.3d 638, 641 (6th Cir. 2003).
Petitioner’s second motion for relief from judgment which was filed in the state court
after the expiration of limitations period therefore did not toll the limitations period. See
Parker v. Renico, 105 F. App ’x. 16, 18 (6th Cir. 2004).
Moreover, the Sixth Circuit has ruled that a habeas petitioner’s second motion for
relief from judgment that is rejected by the state courts pursuant to Mich. Ct. R.
6.502(G) is not a properly filed application for post-conviction relief that would toll the
limitations period pursuant to 28 U.S.C. § 2244(d)(2). See Williams v. Birkett, 670 F.3d
729, 733 (6th Cir. 2012). Whether the judge rejected Petitioner's second postconviction motion on this basis is unclear from the record. In any event, even if this
court was to toll the limitations period during the pendency of Petitioner’s second postconviction motion, the current petition remains untimely.
Petitioner never appealed the denial of the second post-conviction motion to the
Michigan Court of Appeals, but a habeas petitioner is entitled to tolling of the limitations
period under 28 U.S.C. § 2244(d)(2) for the time that he could have appealed the denial
of a state post-conviction motion. See Holbrook v. Curtin, 833 F.3d 612, 619 (6th Cir.
2016). Under the version of Mich. Ct. R. 7.205(F) that was in effect in 2007, Petitioner
had twelve months to file a delayed application for leave to appeal.10 The tolling would
10

Mich. Ct. R. 7.205(F)(3). In June of 2011, the time period for filing an
application for leave to appeal was shortened to six months.
7

have ended pursuant to 28 U.S.C. § 2244(d)(2) on August 9, 2008, when the time
period to file an appeal expired. Petitioner would have had only twenty nine days
remaining from this date, or until September 7, 2008 to timely file his habeas petition
under this alternate calculation of the limitations period. He did not do so.
Petitioner filed his third post-conviction motion for relief from judgment with the
state trial court on July 25, 2015, years after the one year statute of limitations expired.
Petitioner’s third post-conviction motion did not toll the limitations period because it was
filed after the expiration of the limitations period. See Parker v. Renico, 105 F. App ’x. at
18. Petitioner’s third motion for relief from judgment would not toll the limitations period
in any event because it was rejected by the Michigan appellate courts pursuant to Mich.
Ct. R. 6.502(G). See Williams v. Birkett, 670 F. 3d at 733. Per all accounts, the current
petition is untimely.11
2. Discovery of Petitioner’s Claims
Petitioner claims in his various pleadings that he could not file his second and
third claims sooner because he only discovered the factual predicate of his second and
third claims at a later date. Pursuant to 28 U.S.C.§ 2244(d)(1)(D), the one year
limitations period begins to run from the date upon which the factual predicate for a
claim could have been discovered through due diligence by the habeas petitioner. See

11

Although Petitioner attempted to file his third post-conviction motion under
Mich. Ct. R. 2.612, Mich. Ct. R. 6.501 states that unless otherwise specified, a judgment
of conviction and sentence entered by the circuit or Recorder’s court that is not subject
to appellate review under subchapters 7.200 or 7.300 may be reviewed only in
accordance with the provisions of this subchapter. The Michigan appellate courts thus
properly construed Petitioner's motion as an improperly filed successive motion for relief
from judgment.
8

Ali v. Tennessee Board of Pardon and Paroles, 431 F. 3d 896, 898 (6th Cir. 2005).
Importantly, the time commences under § 2244(d)(1)(D) when the factual predicate for a
habeas petitioner’s claim could have been discovered through the exercise of due
diligence, not when it was actually discovered by a given petitioner. Redmond v.
Jackson, 295 F. Supp 2d 767, 771 (E.D. Mich. 2003). Moreover, the time under the
limitations period begins to run pursuant to § 2244(d)(1)(D) when a habeas petitioner
knows, or through due diligence, could have discovered, the important facts for his
claims, not when the petitioner recognizes the facts’ legal significance. Id. Finally, “§
2244(d)(1)(D) does not convey a statutory right to an extended delay while a petitioner
gathers every possible scrap of evidence that might support his claim.” Redmond, 295
F. Supp. 2d at 771. Significantly, newly discovered information “that merely supports or
strengthens a claim that could have been properly stated without the discovery ... is not
a ‘factual predicate’ for purposes of triggering the statute of limitations under §
2244(d)(1)(D).” See Jefferson v. U.S., 730 F.3d 537, 547 (6th Cir. 2013) (quoting Rivas
v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012)). A habeas petitioner has the burden of
proof in persuading a federal court that he exercised due diligence in searching for the
factual predicate of the habeas claims. See Stokes v. Leonard, 36 F. App’x. 801, 804
(6th Cir. 2002).
Petitioner, in his second, claim alleges that the prosecutor withheld an audiotape
recording of his arrest at the Jackson County Jail dated August 6, 2002. Petitioner
claims that this audiotape recording was exculpatory evidence that was not disclosed by
the prosecutor, in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Officer
Charles Brandt testified at the preliminary examination on September 5, 2002 that he
9

made an audio and videotape of his interview with Petitioner at the county jail following
his arrest. (Tr. 9/5/02, pp. 17-18).Therefore, Petitioner was aware the audiotape of the
interview existed on September 5, 2002, prior to his trial. The commencement of the
one year limitations period was not delayed pursuant to § 2244(d)(1)(D) until Petitioner’s
alleged discovery of the legal basis for his Brady claim, in light of the fact that Petitioner
was aware prior to trial of the factual predicate for the claim–the alleged withholding of
the audiotape interview prior to trial. See Whalen v. Randle, 37 F. App’x. 113, 119 (6th
Cir. 2002).
In Petitioner’s third claim, he alleges that the prosecutor never provided him
notice of the fourth felony habitual offender charge. Petitioner, however, raised this
claim on his appeal of right.12 Petitioner was aware of the factual predicate of his
habitual offender claim at the time of his direct appeal, thus, the commencement of the
running of the statute of limitations would not be delayed pursuant to 28 U.S.C.§
2244(d)(1)(D). See Fleming v. Evans, 481 F.3d 1249, 1258 (10th Cir. 2007).
3. Equitable Tolling: Actual Innocence
The one year statute of limitations for habeas petitions “is subject to equitable
tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). The burden
is on a habeas petitioner to show that he is entitled to the equitable tolling of the one
year limitations period. See Robertson v. Simpson, 624 F. 3d 781, 784 (6th Cir. 2010).
The one year statute of limitations may be equitably tolled based upon a credible
showing of actual innocence under the standard enunciated in Schup v. Delo, 513 U.S.
12

See Appellant-Defendant’s Brief on Appeal, pp. 7-8 (Dkt. # 14-7, Pg. ID 427-

28.)
10

298 (1995). McQuiggin v. Perkins, 133 S. Ct. 192, 1928 (2013).
The Supreme Court has cautioned that “tenable actual-innocence gateway pleas
are rare[.]” Id. “[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
(quoting Schlup, 513 U.S., at 329). Moreover, in determining whether petitioner makes
out a compelling case of actual innocence, so as to toll the limitations period, “‘the
timing of the [petition]’ is a factor bearing on the ‘reliability of th[e] evidence’ purporting
to show actual innocence.” Id. (quoting Schlup, 513 U.S. at 332). For an actual
innocence exception to be credible under Schlup, such a claim requires a habeas
petitioner to support his or her allegations of constitutional error “with new reliable
evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence--that was not presented at trial.” Schlup, 513 U.S.
at 324. For purposes of tolling the limitations period, “actual innocence means factual
innocence, not mere legal insufficiency.” Souter v. Jones, 395 F.3d 577, 590 (6th Cir.
2005) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
Petitioner’s case does not merit tolling pursuant to the actual innocence
exception, because Petitioner has not presented any new, reliable evidence to establish
that he was actually innocent of the crime charged. See Ross v. Berghuis, 417 F.3d
552, 556 (6th Cir. 2005). Petitioner’s sufficiency of evidence claim does not establish
his innocence, so as to toll the limitations period. An insufficiency of evidence claim
cannot be considered by this court in determining whether an actual innocence
exception exists for purposes of tolling the statute of limitations period. Redmond v.
11

Jackson, 295 F. Supp. 2d at 773; Grayson v. Grayson, 185 F. Supp. 2d 747, 752 (E.D.
Mich. 2002).
The audiotape interview at the Jackson County Jail does not establish
Petitioner’s actual innocence because, as noted by the trial judge when rejecting
Petitioner’s first post-conviction motion for relief from judgment, See People v. Greene,
No. 02-003923-FH, pp. 2-3 (Jackson Cty.Cir.Ct. Aug. 10, 2005), Petitioner admitted on
the tape to the police that he did not stop for the police and that he ran from the police
because he knew that he had an outstanding warrant for his arrest for failure to pay
child support. Because the audiotape recording inculpates Petitioner, it does not
establish his actual innocence.
Finally, Petitioner’s claim that the state court misapplied Michigan’s habitual
offender statute does not fit within the actual innocence exception to toll the limitations
period. See Craig v. White, 227 F. App’x. 480, 481-82 (6th Cir. 2007).
B. A certificate of appealability.
Before Petitioner may appeal this 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 a habeas
petition on procedural grounds without reaching the prisoner’s underlying constitutional
claims, a certificate of appealability should issue, and an appeal of the district court’s
order may be taken, if the petitioner “shows, at least, 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
12

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When “a
plain procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petition should be allowed to proceed further. In such
a circumstance, no appeal would be warranted.” Id. “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.
The court will deny Petitioner a certificate of appealability, because reasonable
jurists would not find it debatable whether the court was correct in determining that
Petitioner had filed his habeas petition outside of the one year limitations period. See
Grayson v. Grayson, 185 F. Supp. 2d at 753.
The standard for granting an application for leave to proceed in forma pauperis is
a lower standard than the standard for certificates of appealability. See Foster v.
Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the denial
of a constitutional right, a court may grant leave to proceed in forma pauperis if it finds
that an appeal is being taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R.App. P.
24(a); Foster, 208 F.Supp.2d at 764–65. “Good faith” requires a showing that the
issues raised are not frivolous; it does not require a showing of probable success on the
merits. Id. at 765. Although this is a decidedly lower standard, the court will
nonetheless deny leave to proceed in forma pauperis on appeal because appeal would
be frivolous for the reasons stated above.
III. CONCLUSION
13

Petitioner’s habeas corpus petition was filed well beyond the one year statute of
limitations. Despite Petitioner’s arguments to the contrary, the record demonstrates that
Petitioner was aware of the factual predicates for his second and third claims during his
direct appeal. Thus, the running of the statute of limitation on those claims was not
delayed until Petitioner discovered the legal basis for the claims. Petitioner has failed to
provide evidence of actual innocence and therefore, is not entitled to equitable tolling.
The court declines to issue a certificate of appealability because no jurist of reason
would find it debatable whether the present petition is timely. Accordingly,

IT IS ORDERED that Petitioner Loren Depree Greene’s petition for writ of
habeas corpus (Dkt. # 1) is SUMMARILY DISMISSED WITH PREJUDICE pursuant to
28 U.S.C. § 2244(d)(1).

IT IS FURTHER ORDERED that the motion for an evidentiary hearing (Dkt. # 2)
and the motion for an independent action (Dkt. # 3) are DENIED.

IT IS FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED.
This court DECLINES to issue a certificate of appealability.

_______
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 21, 2017
14

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 21, 2017, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

15