Dickens v. Stephenson

Filing 13

OPINION AND ORDER Denying 10 Motion to Dismiss and Compelling Answer Addressing Petition's Merits. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EVEREGE VERNOR DICKENS,
Petitioner,
CASE NO. 2:17-CV-12243
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

v.
GEORGE STEPHENSON,

Respondent.
__________________________________/
OPINION AND ORDER DENYING THE MOTION TO DISMISS AND
COMPELLING ANSWER ADDRESSING PETITION’S MERITS
This matter is before the Court on respondent’s motion to dismiss the
petition on the ground that petitioner’s application for writ of habeas corpus is
barred by the statute of limitations found in 28 U.S.C. § 2244(d)(1). Petitioner
filed a reply to the motion to dismiss. Having reviewed the pleadings and the
issues raised by petitioner in his habeas application and in response to the
motion to dismiss, the Court will deny the motion to dismiss and will order that
an answer addressing the merits of the petition be filed in this matter within
sixty days of the Court’s order.
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

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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
(1) 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
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).
Petitioner’s direct appeal of his conviction ended when the Michigan
Supreme Court denied petitioner leave to appeal on March 29, 2016, following
the affirmance of his conviction by the Michigan Court of Appeals on direct
review. Petitioner’s conviction would become final, for the purposes of the
AEDPA’s limitations period, on the date that the 90 day time period for

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seeking certiorari with the U.S. Supreme Court expired. See Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009). Petitioner’s judgment therefore
became final on June 27, 2016, when he failed to file a petition for writ of
certiorari with the U.S. Supreme Court. Holloway v. Jones, 166 F. Supp. 2d
1185, 1188 (E.D. Mich. 2001). Petitioner had until June 27, 2017 to file his
habeas petition in compliance with the one year limitations period, unless the
limitations period was somehow tolled.
Petitioner’s habeas application was signed and dated July 3, 2017 and
filed with this Court on July 10, 2017. Under the prison mailbox rule, this
Court will assume that petitioner actually filed his habeas petition on July 3,
2017, the date that it was signed and dated. See Towns v. U.S., 190 F. 3d
468, 469 (6th Cir. 1999). The current petition is untimely unless the limitations
period was somehow tolled.
Petitioner argues that the limitations period should be tolled because he
filed a state petition for writ of habeas corpus first with the Wayne County
Circuit Court on January 21, 2016 and subsequently attempted to file a state
petition for writ of habeas corpus with the Michigan Court of Appeals and the
Michigan Supreme Court. It is unclear from the pleadings when or if the
Wayne County Circuit Court ever ruled on petitioner's state petition for writ of

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habeas corpus, but the Michigan Court of Appeals dismissed the petition on
July 27, 2016, because petitioner failed to timely correct filing defects. Dickens
v. EC Brooks Correctional Facility, No. 332823 (Mich.Ct.App. July 27, 2016).
The Michigan Supreme Court rejected petitioner's habeas petition on
September 16, 2016 because it was untimely filed. See Letter from Inger Z.
Meyer, Deputy Clerk of the Michigan Supreme Court, attached to the petition
for writ of habeas corpus. Petitioner argued in his state petition that the
Wayne County Circuit Court lacked jurisdiction over his case.
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. See McClendon v. Sherman, 329 F.3d 490, 493-94
(6th Cir. 2003).
There is some question whether the petition for writ of habeas corpus
that petitioner filed first with the state trial court and subsequently with the
Michigan appellate courts would qualify as a properly filed application for postconviction relief that would toll the limitations period pursuant to the provisions
of 28 U.S.C. § 2244(d)(2). The Sixth Circuit has yet to address this issue nor
are there any published cases from this district or the Western District of

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Michigan on this issue. Judges in this district in unpublished opinions have
reached opposing conclusions as to whether a state petition for writ of habeas
corpus is a properly filed post-conviction motion that would toll the limitations
period pursuant to 28 U.S.C.§ 2244(d)(2). Compare Jenkins v. Tribley, No.
11-14204; 2012 WL 995394, * 3-4 (E.D. Mich. March 22, 2012)(state habeas
petition can toll the limitations period pursuant to § 2244(d)(2), at least where
the petitioner alleged a jurisdictional defect); Powell v. McKee, No. 10–12866,
2011 WL 1344581, * 4 (E.D.Mich. April 8, 2011)(state habeas petition does
not toll the period of limitations under 28 U.S.C. § 2244(d)(2)); Northrop v.
Wolfenbarger, No. 06–CV–13081, 2008 WL 564941, *2 (E.D. Mich. February
28, 2008) (same); Javens v. Caruso, No. 07–CV–10175, 2007 WL 2516827,
*2 (E.D.Mich. August 31, 2007)(same). This Court, in an unpublished case,
declined to rule on whether or not the petitioner's state petition for writ of
habeas corpus would qualify as a properly filed post-conviction motion, for
purposes of 28 U.S.C. § 2244(d)(2), on the ground that it would be easier to
address the merits of petitioner's claims. Coney v. Klee, No. 2:12-CV-11016,
2012 WL 5380639, at *4 (E.D. Mich. October 31, 2012).
Petitioner alleged in his state petition that the Wayne County Circuit
Court lacked jurisdiction to try his case. Because Michigan law does permit

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criminal defendants to use a state petition for writ of habeas corpus to
challenge a radical jurisdictional defect, there is at least some question about
whether petitioner's state petition for writ of habeas corpus would toll the
limitations period pursuant to 28 U.S.C. § 2244(d)(2). Jenkins v. Tribley, 2012
WL 995394, * 3-4.
Although the issue of whether a claim is procedurally barred should
ordinarily be resolved first, “judicial economy sometimes dictates reaching the
merits [of a claim or claims] if the merits are easily resolvable against a
petitioner while the procedural bar issues are complicated.” Barrett v.
Acevedo, 169 F. 3d 1155, 1162 (8th Cir. 1999)(internal citations omitted).
Because the statute of limitations does not constitute a jurisdictional bar to
habeas review, a federal court, can, in the interest of judicial economy,
proceed to the merits of a habeas petition. See Smith v. State of Ohio Dept.
of Rehabilitation, 463 F. 3d 426, 429, n. 2 (6th Cir. 2006). In the present case,
because of the complexities involved, it appears to be simply easier and more
judicially efficient to adjudicate petitioner’s claims on the merits “than to
untangle the complexities of the timeliness issue.” See Jones v. Bowersox, 28
F. App’x. 610, 611 (8th Cir. 2002). Accordingly, the Court believes that the

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ends of justice would be better served by ordering an answer that addresses
the merits of petitioner’s claims.
The Court will therefore deny the motion to dismiss and order the
respondent to file an answer that responds to the merits of petitioner’s habeas
claims within sixty days of the Court’s order. See Erwin v. Elo, 130 F. Supp.
2d 887, 890-91 (E.D. Mich. 2001); 28 U.S.C. § 2243.
The Court will also order respondent to provide this Court with any Rule
5 materials that have not already been filed with the Court at the time that it
files its answer. The habeas corpus rules require respondents to attach the
relevant portions of the transcripts of the state court proceedings, if available,
and the court may also order, on its own motion, or upon the petitioner’s
request, that further portions of the transcripts be furnished. Griffin v. Rogers,
308 F. 3d 647, 653 (6th Cir. 2002); Rules Governing § 2254 Cases, Rule 5,
28 U.S.C. foll. § 2254.
Petitioner shall have 45 days from the receipt of the answer to file a
reply brief, if he so chooses. See Baysdell v. Howes, 04-CV-73293, 2005 WL
1838443, * 4 (E.D. Mich. Aug. 1, 2005).

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ORDER
Accordingly, the Court ORDERS that the motion to dismiss [Dkt. # 10]
is DENIED.
The Court further ORDERS Respondent to submit an answer
addressing the merits of petitioner’s habeas claims and any Rule 5 materials
that have not already been submitted to the Court within SIXTY (60) DAYS of
this order.
Petitioner shall have FORTY FIVE (45) DAYS following receipt of the
answer to file a reply brief.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: January 31, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
January 31, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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