Scott v. Place

Filing 9

OPINION and ORDER dismissing 1 Petition for Writ of Habeas Corpus; denying certificate of appealability and denying leave to proceed in forma pauperis on appeal. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAKWAUN SCOTT, #871730,
Petitioner,
v.

CASE NO. 2:17-CV-12123
HONORABLE NANCY G. EDMUNDS

SHANE PLACE,
Respondent.
_________________________________/
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner

Jakwaun Scott (“Petitioner”) was convicted of second-degree murder and possession of
a firearm during the commission of a felony following a jury trial in the Wayne County
Circuit Court. He was sentenced to consecutive terms of 35 to 70 years imprisonment and
two years imprisonment in 2014.

In his pro se pleadings, Petitioner raises claims

concerning the conduct of the prosecutor, the use of a photographic lineup, the
effectiveness of trial counsel, the sufficiency of the evidence, and the validity of his
sentence.
On July 13, 2017, 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 he was mistaken about the deadline for seeking habeas review. 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
Following his convictions and sentencing, Petitioner filed an appeal of right with the

Michigan Court of Appeals raising claims concerning the conduct of the prosecutor, the use
of a photographic lineup, and the effectiveness of trial counsel. The court denied relief on
those claims and affirmed his convictions. People v. Scott, No. 320232, 2015 WL 2412325
(Mich. Ct. App. May 19, 2015) (unpublished). Petitioner filed an application for leave to
appeal with the Michigan Supreme Court, which was denied. People v. Scott, 499 Mich.
869, 875 N.W.2d 199 (March 8, 2016). Petitioner did not pursue collateral review in the
state courts.
Petitioner dated his federal habeas petition on June 7, 2017 and it was filed by the
Court on June 27, 2017. Under the prison mailbox rule, see Houston v. Lack, 487 U.S.
266, 276 (1988), his petition is considered filed on June 7, 2017 because that is when he
signed it and presumably gave it to prison officials for mailing. See Brand v. Motley, 526
F.3d 921, 925 (6th Cir. 2008); Richard v. Ray, 290 F.3d 810, 812-13 (6th Cir. 2002). In his
pleadings, Petitioner admits that he has not exhausted certain ineffective assistance of
counsel claims, his insufficient evidence claim, and his sentencing claim in the state courts.
III.

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

28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA includes a oneyear period of limitations for habeas petitions brought by prisoners challenging state court
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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 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 oneyear 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

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on March 8, 2016. 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 June 6, 2016. Consequently, Petitioner was required to file his federal habeas
petition by June 6, 2017, 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, however, dated his federal habeas petition on June 7, 2017 – one
day late. His petition is thus untimely and subject to dismissal.
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 newly-discovered 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. 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

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v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)).
Petitioner neither alleges nor establishes any such facts. He asserts that he was
unaware of the filing deadline and that a legal writer misinformed him about the correct
deadline. Such a circumstance does not justify equitable tolling. See, e.g., Dodd v.
Mackie, No. 2:14-CV-128, 2014 WL 5105705, *1 (W.D. Mich. Oct. 3, 2014) (citing cases,
adopting report and recommendation, and ruling that legal writer’s erroneous advice about
deadline did not justify tolling); Birge v. Berghuis, No. 1:14-CV-439, 2014 WL 4187671, *1
(W.D. Mich. Aug. 21, 2014) (same and stating that “[b]ad advice – from a lawyer, prisoner,
a legal writing program, or anyone else is not a basis for equitable tolling”). 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, or mistaken about, the statute of limitations
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 v. Burgess, 306 F.3d 441, 444 (6th Cir.
2002) (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 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

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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 eyewitness account, or critical physical evidence – that was
not presented at trial.” Schlup, 513 U.S. at 324. Furthermore, 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.
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 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
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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 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 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 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.
IT IS SO ORDERED.
s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: August 15, 2017
CERTIFICATE OF SERVICE
I hereby certify that a copy of this opinion and Order was sent to counsel and/or
parties of record on this 15th day of August, 2017 by regular U.S. mail and/or cm/ecf.
s/ Carol J Bethel
Case Manager

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