Brown v. Haas

Filing 12

MEMORANDUM OPINION and ORDER Summarily Dismissing the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH EUGENE BROWN,
Petitioner,
CASE NO. 2:17-CV-12135
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
RANDALL HAAS,

Respondent.
__________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Kenneth Eugene Brown, (“petitioner”), confined at the Macomb
Correctional Facility in New Haven, Michigan, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for seconddegree murder, M.C.L.A. 750.317. Respondent filed a motion to dismiss the
petition on the ground that petitioner failed to comply with the statute of limitations
contained in 28 U.S.C. § 2244(d)(1). For the reasons stated below, the petition
for a writ of habeas corpus is SUMMARILY DISMISSED.
I. Background
Petitioner was charged with first-degree felony murder and crime with a
weapon but pleaded guilty to the lesser offense of second-degree murder in the

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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
Detroit Recorder’s Court. 1 On February 6, 1979, petitioner was sentenced to a
parolable life sentence.
Petitioner’s conviction was affirmed on appeal by the Michigan Court of
Appeals on October 7, 1981. 2 There is no indication petitioner appealed to the
Michigan Supreme Court.
In 1993, petitioner filed with the trial court a post-conviction motion for relief
from judgment pursuant to M.C.R. 6.500, et seq., which was denied. People v.
Brown, No. 78-3468 (Detroit Recorder's Court, Oct. 11, 1993). There is no
indication petitioner appealed the denial of the post-conviction motion to the state
appeals courts. 3
On September 16, 2005, 4 petitioner filed with the trial court a second postconviction motion for relief from judgment pursuant to M.C.R. 6.500, et seq.,

1

In 1996, the Michigan Legislature abolished the Detroit Recorder’s Court
and merged its functions with the Wayne County Circuit Court. See Anthony v.
Michigan, 35 F. Supp. 2d 989, 996-997 (E.D. Mich. 1999).
2

See Wayne County Circuit Court, Register of Actions, Case No. 78003468-01, p. 3, Respondent’s Appendix C. But see Affidavit Of Jerome W.
Zimmer, Jr., Chief Clerk of the Michigan Court of Appeals, dated August 8, 2017,
Respondent's Appendix A, indicating that he was unable to find any appeal
having been filed by petitioner from his case. Respondent does not dispute that
an appeal of right was filed in this case.
3

See Respondent's Appendix C.

4

See Wayne County Circuit Court, Register of Actions, Case No. 78003468-01, p. 4.
2

Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
which was denied. People v. Brown, No. 78-003468 (Wayne County Cir.Ct. Oct.
25, 2005). There is no indication petitioner appealed the denial of the postconviction motion to the state appeals courts. 5
The instant petition was filed with this Court on June 27, 2017.
II. Discussion
Respondent has filed a motion to dismiss the petition for writ of habeas
corpus on the ground that the petition was not filed in compliance with the statute
of limitations. In the statute of limitations context, “dismissal is appropriate only if
a complaint clearly shows the claim is out of time.” Harris v. New York, 186 F.3d
243, 250 (2d Cir.1999); See also Cooey v. Strickland, 479 F. 3d 412, 415-16 (6th
Cir. 2007).
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. 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
5

See Respondent's Appendix C.
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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
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.
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). 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).
The Michigan Court of Appeals affirmed petitioner's conviction on October
7, 1981. Petitioner never filed an application for leave to appeal to the Michigan
Supreme Court.
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 or her
judgment of conviction is finalized when the time for taking an appeal to the
United States Supreme Court expires. The one-year statute of limitations does
not begin to run until the day after the petition for a writ of certiorari was due in
the United States Supreme Court. See Jimenez v. Quarterman, 555 U.S. 113,

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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
119 (2009); See also Clay v. United States, 537 U.S. 522, 527 (2003)(“the federal
judgment becomes final ‘when this Court affirms conviction on the merits on
direct review or denies a petition for a writ of certiorari,’ or, if a petitioner does not
seek certiorari, ‘when the time for filing a certiorari petition expires”’). Under Rule
13 of the Supreme Court Rules, a petition for a writ of certiorari “is timely when it
is filed with the Clerk of this Court within 90 days after entry of judgment.” Sup.Ct.
R. 13.
However, when, as in this case, a habeas petitioner only appeals his
judgment of conviction to the Michigan Court of Appeals and fails to properly or
timely 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]”).
Petitioner had fifty-six days to file an appeal in the Michigan Supreme
Court, the highest court in the State. M.C.R. 7.302(C). The expiration of the
fifty-six days represents the expiration of the time for seeking direct review of
petitioner’s judgment of conviction, therefore, petitioner’s conviction would
become final, for purposes of the AEDPA statute of limitations, on December 1,
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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
1981. Gonzalez, 565 U.S. at 150; See also Erwin v. Elo, 130 F. Supp. 2d 887,
889 (E.D. Mich. 2001).
Because petitioner’s conviction became final prior to the April 24, 1996
enactment date of the AEDPA, petitioner had a one year grace period from this
date to timely file a petition for habeas relief with the federal court. See Israfil v.
Russell, 276 F. 3d 768, 771 (6th Cir. 2001). Absent state collateral review,
petitioner would have been required to file his petition for writ of habeas corpus
with this Court no later than April 24, 1997 in order for the petition to be timely
filed. Holloway, 166 F. Supp. 2d at 1188.
Petitioner filed his first post-conviction motion for relief from judgment in
1993, which was also before the enactment of the AEDPA. The trial judge denied
petitioner relief on October 11, 1993. Petitioner never appealed the denial of the
motion to the Michigan Court of Appeals. A habeas petitioner is entitled to tolling
of the limitations period under 28 U.S.C. § 2244(d)(2) for the time that he or she
could have appealed the denial of a state post-conviction motion, even if the
petitioner never filed an appeal. See Holbrook v. Curtin, 833 F.3d 612, 619 (6th
Cir. 2016). Under the version of M.C.R. 7.205(F) that was in effect in 1993,

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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
petitioner had eighteen months to file a delayed application for leave to appeal. 6
The tolling would have ended pursuant to 28 U.S.C. § 2244(d)(2) on April 11,
1995, when the time period to file an appeal expired. This date occurred prior to
the AEDPA’s enactment, thus, petitioner was required to file his petition within
one year following the AEDPA’s enactment date of April 24, 1996, unless the
statute of limitations was otherwise tolled. Miller v. Marr, 141 F.3d 976, 977 (10th
Cir. 1998); Wilson v. Birkett, 192 F. Supp. 2d 763, 766, n. 1 (E.D. Mich. 2002).
Petitioner therefore had until April 24, 1997 to timely file his petition with the
federal court.
Petitioner filed his second post-conviction motion for relief from judgment
with the state trial court on September 16, 2005, after the one year statute of
limitations 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.

6

M.C.R. 7.205(F)(3) used to provide a defendant eighteen months after
entry of the order or judgment to file a late appeal. As of November 1, 1995, the
time was shortened to twelve months. In June of 2011, the time period for filing
an application for leave to appeal was shortened to six months.
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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
App ’x. 16, 18 (6th Cir. 2004). The current petition is untimely. 7
The AEDPA’s statute of limitations “is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). However, “the
doctrine of equitable tolling is used sparingly by federal courts.” See Robertson v.
Simpson, 624 F.3d 781, 784 (6th Cir. 2010). The burden is on a habeas
petitioner to show that he or she is entitled to the equitable tolling of the one year
limitations period. Id. Petitioner is not entitled to equitable tolling of the one year
limitations period, because he has failed to argue that circumstances of his case
warranted equitable tolling. See Giles v. Wolfenbarger, 239 F. App’x. 145, 147
(6th Cir. 2007).
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. 298 (1995). McQuiggin v. Perkins, 133 S. Ct. 1924, 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
7

Compounding the untimeliness of the petition is the fact that petitioner
waited more than eleven years after the denial of his second post-conviction
motion to file his habeas petition.
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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
makes out a compelling case of actual innocence, so as to toll the AEDPA’s
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.
Petitioner’s case falls outside of the actual innocence tolling exception,
because petitioner has presented no 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); Holloway, 166 F. Supp. 2d at 1191. Any actual innocence
exception to AEDPA’s statute of limitations is particularly inapplicable, in light of
the fact that petitioner pleaded guilty to the charge that he challenges in this
petition. See Reeves v. Cason, 380 F. Supp. 2d 883, 885 (E.D. Mich. 2005).
III. Conclusion
Federal Rule of Appellate Procedure 22 provides that an appeal may not
proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing Section 2254 Proceedings, which was
amended as of December 1, 2009, requires that a district court must “issue or
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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
deny a certificate of appealability when it enters a final order adverse to the
applicant.... If the court issues a certificate, the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule 11,
Rules Governing Section 2254 Proceedings.
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).
Courts must either issue a certificate of appealability indicating which issues
satisfy the required showing or provide reasons why such a certificate should not
issue. 28 U.S.C. § 2253(c)(3); Fed. R.App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of
appealability, “a petitioner must show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003)(internal quotes and citations omitted).
Having considered the matter, jurists of reason would not find the
procedural ruling that the habeas petition is untimely and cannot be saved by
statutory or equitable tolling debatable. Accordingly, the Court declines to issue
petitioner a certificate of appealability

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Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
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 IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits. Foster,
208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court’s
resolution of the habeas petition, the issues are not frivolous; therefore, an appeal
could be taken in good faith and petitioner may proceed in forma pauperis on
appeal. Id.
IV. ORDER
IT IS ORDERED that Respondent's Motion To Dismiss (Doc. # 10) is
GRANTED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner shall be GRANTED leave to
appeal in forma pauperis.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: November 28, 2017
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Brown v. Haas, U.S.D.C. No. 2:17-CV-12135
I hereby certify that a copy of the foregoing document was served upon parties/counsel
of record on November 28, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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