Whitehead v. Brewer

Filing 10

MEMORANDUM AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [DOC. 8] AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LASONIA ANN WHITEHEAD,
Petitioner,

Case No.17-12195

v.

HON. AVERN COHN

ANTHONY STEWARD,
Respondent.
/
MEMORANDUM AND ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
(Doc. 8)
AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under28 U.S.C. § 2254. Petitioner Lasonia Ann
Whitehead, proceeding pro se, challenges her conviction for second-degree murder,
M.C.L. § 750.317. Before the Court is respondent’s motion to dismiss on the grounds
the petition was not timely filed. (Doc. 8). For the reasons that follow, the motion will be
granted.
II. Procedural History
Petitioner was originally charged with first-degree murder but plead guilty to a
reduced charge of second-degree murder. On October 7, 2013, petitioner was
sentenced to twenty to forty years in prison.
Appellate counsel was appointed to represent petitioner. After meeting with
appellate counsel, petitioner signed an affidavit agreeing with appellate counsel’s advice

that it would not be in her interest to appeal her conviction. (Doc. 9-5). Petitioner
therefore did not file a direct appeal.
On September 25, 2015, petitioner filed a post-conviction motion for relief from
judgment with the trial court, which was denied. People v. Whitehead, No. 13-00769301 (Dec. 21, 2015). The Michigan appellate courts denied leave to appeal. People v.
Whitehead, No. 331896 (Mich. Ct. App. May 17, 2016); lv. den. 500 Mich. 933 (2017).
The instant petition was filed on May 31, 2017.1
III. Discussion
There is a one year statute of limitations for filing habeas petitions. The statute
provides that the one year runs 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.
28 U.S.C. § 2244(d)(1).
Here, the Court must first determine when petitioner’s conviction became “final,”
in order to ascertain when the limitations period began running. A state-court judgment
becomes “final” when direct review by the state court ends or when the time to seek

1

Under the prison mailbox rule, the Court assumes the petition was filed on May
31, 2017, the date that it was signed and dated.
2

direct review expires, whichever comes later. See Wilberger v. Carter, 35 F. App’x.
111, 114 (6th Cir. 2002).
Petitioner was sentenced on October 7, 2013. Petitioner had six months after
her sentence, under M.C.R. 7.205(F)(3), to file a delayed application for leave to appeal.
Because petitioner never filed a direct appeal, her conviction was final, under
§ 2244(d)(1)(A), six months after the sentencing when the time for filing a direct appeal
in the Michigan Court of Appeals expired. See Williams v. Birkett, 670 F.3d 729, 731
(6th Cir. 2012). Petitioner’s conviction therefore became final on April 7, 2014.
Petitioner then had one year, or until April 7, 2015, to timely file a habeas petition,
unless the limitations period was somehow tolled.
Petitioner filed a post-conviction motion for relief from judgment on September
25, 2015. At that time, however, the statue of limitations had already run. A
post-conviction motion that is filed following the expiration of the limitations period does
not toll the statute. See Jurado v. Burt, 337 F. 3d 638, 641 (6th Cir. 2003); see also
Hargrove v. Brigano, 300 F. 3d 717, 718, n. 1 (6th Cir. 2002). Thus, the petition is
untimely.
Even if untimely, the statute of limitations “is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). 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 the timely filing of the habeas petition. Id. at 649 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). The Sixth Circuit has observed that “the
doctrine of equitable tolling is used sparingly by federal courts.” See Robertson v.
3

Simpson, 624 F. 3d 781, 784 (6th Cir. 2010). The burden is on petitioner to show that
she is entitled to equitable tolling.
Petitioner has not met her burden. Although petitioner has not responded to the
motion, she alleges in her petition that she has a history of mental illness that was
diagnosed while she was at the Wayne County Jail. Even assuming petitioner suffers
from mental illness, to obtain equitable tolling on the ground of mental incompetence,
petitioner must show that (1) she is mentally incompetent and (2) her mental
incompetence caused his or her failure to comply with the statute of limitations. See Ata
v. Scutt, 662 F.3d 736 (6th Cir. 2011). Petitioner has not presented any evidence of her
mental health during the limitations period nor has she shown that her mental illness
was the cause of her untimely filing. Thus, petitioner is not entitled to equitable tolling
based on mental illness.
The statute of limitations may also be equitably tolled based upon a credible
showing of actual innocence. See Schlup v. Delo, 513 U.S. 298 (1995). Petitioner has
not come forth with new, reliable evidence to establish that she was actually innocent.
Thus, she is not entitled to equitable tolling on this ground.
IV. Conclusion
For the reasons stated above, respondent’s motion to dismiss is GRANTED.
The petition is DISMISSED as untimely under 28 U.S.C. § 2244(d)(1). Furthermore,
because reasonable jurists would not debate the whether the Court’s procedural ruling
is correct or whether the petition states a valid claim of the denial of a constitutional
right, the Court DECLINES to grant a certificate of appealability under 28 U.S.C. §

4

2253(c)(2).2
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: March 6, 2018
Detroit, Michigan

2

“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.
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