Dickens v. Stephenson
Filing
18
OPINION and ORDER Summarily Dismissing the 1 Petition for Writ of Habeas Corpus, Denying the 16 MOTION for Appointment of Counsel, Denying the 17 MOTION to Object to the Court Order Directing Respondent to File a Reply to the Petition, and Granting a Certificate of Appealability and Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (JOwe)
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.
WILLIS CHAPMAN, 1
Respondent.
__________________________________/
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR THE
APPOINTMENT OF COUNSEL (Doc. 16), DENYING THE MOTION TO
OBJECT TO THE COURT ORDER DIRECTING RESPONDENT TO FILE
A REPLY TO THE PETITION (Doc. 17), AND GRANTING A
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN
FORMA PAUPERIS
Everege Vernor Dickens,(“Petitioner”), confined at the Thumb
Correctional Facility in Lapeer, Michigan, filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for
first-degree felony murder, M.C.L.A. 750.316, and assault with intent to rob
while armed, M.C.L.A. 750.89. Respondent filed an answer to the petition.
1
The caption is amended to reflect that the respondent is now Willis
Chapman.
1
As part of the answer, respondent has renewed his 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). For the
reasons stated below, the petition for writ of habeas corpus is SUMMARILY
DENIED. The Court will deny petitioner’s two pending motions. Petitioner will
be GRANTED a certificate of appealability and leave to appeal in forma
pauperis.
I. Background
Petitioner was convicted by a jury in the Wayne County Circuit Court.
Direct review of petitioner’s case 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. People v. Dickens, 876 N.W. 2d 527 (2016).
Petitioner 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 not clear from the
pleadings when or if the Wayne County Circuit Court ever ruled on petitioner’s
state petition for writ of habeas corpus, but the Michigan Court of Appeals
2
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 then 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’s habeas application was signed and dated July 3, 2017 and
filed with this Court on July 10, 2017. 2
Respondent filed a motion to dismiss on the ground that the petition was
untimely in that it was filed more than one year after petitioner’s conviction
became final. Petitioner argued in his reply to the motion to dismiss that the
state petition for writ of habeas corpus qualified as a state post-conviction
motion to toll the limitations period under 28 U.S.C. § 2244(d)(2).
This Court denied the motion to dismiss. The Court acknowledged that
there was some question about whether a state petition for writ of habeas
corpus would qualify as a properly filed application for post-conviction relief
that could toll the limitations period pursuant to the provisions of 28 U.S.C. §
2
Under the prison mailbox rule, this Court considers the petition to
have been filed 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).
3
2244(d)(2). This Court noted that the Sixth Circuit had yet to address the
issue nor were there any published district court cases on the issue, but a
number of judges in this district had unpublished opinions that had reached
opposite conclusions as to whether a state petition for writ of habeas corpus
would be considered a properly filed post-conviction motion that would toll the
limitations period pursuant to 28 U.S.C.§ 2244(d)(2). Dickens v. Stephenson,
No. 2:17-CV-12243, 2018 WL 646390, at * 2 (E.D. Mich. Jan. 31,
2018)(collecting cases). This Court noted that petitioner had argued in his
state petition for writ of habeas corpus that the Wayne County Circuit Court
lacked subject matter jurisdiction over his case. Because Michigan allows
criminal defendants to use a state petition for writ of habeas corpus to
challenge a radical jurisdictional defect, this Court concluded that “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).”
Id. This Court further concluded that because of the complexities of the
statute of limitations issue, judicial economy dictated “that the ends of justice
would be better served by ordering an answer that addresses the merits of
petitioner’s claims.” Id.
Respondent has now filed an answer to the petition.
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II. Discussion
A. The motion for the appointment of counsel is DENIED.
Petitioner has moved for the appointment of counsel.
The Court will deny the motion for the appointment of counsel. There
is no constitutional right to counsel in habeas proceedings. Cobas v. Burgess,
306 F. 3d 441, 444 (6th Cir. 2002). The decision to appoint counsel for a
federal habeas petitioner is within the discretion of the court and is required
only where the interests of justice or due process so require. Mira v. Marshall,
806 F. 2d 636, 638 (6th Cir. 1986). “Habeas corpus is an extraordinary
remedy for unusual cases” and the appointment of counsel is therefore
required only if, given the difficulty of the case and petitioner’s ability, the
petitioner could not obtain justice without an attorney, he or she could not
obtain a lawyer, and he or she would have a reasonable chance of winning
with the assistance of counsel. See Thirkield v. Pitcher, 199 F. Supp. 2d 637,
653 (E.D. Mich. 2002). Appointment of counsel in a habeas proceeding is
mandatory only if the district court determines that an evidentiary hearing is
required. Lemeshko v. Wrona, 325 F. Supp. 2d 778, 787 (E.D. Mich. 2004).
If no evidentiary hearing is necessary, the appointment of counsel in a habeas
case remains discretionary. Id.
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Counsel may be appointed, in exceptional cases, for a prisoner
appearing pro se in a habeas action. Lemeshko, 325 F. Supp. 2d at 788. The
exceptional circumstances that justify the appointment of counsel to represent
a prisoner acting pro se in a habeas action occur where a petitioner raises a
colorable claim, but lacks the means to adequately investigate, prepare, or
present the claim. Id.
In the present case, petitioner has filed a lengthy petition for writ of
habeas corpus raising five claims for relief, a reply to the motion to dismiss,
and now a motion to strike the answer. Petitioner has the means and ability
to represent himself pro se. The motion for the appointment of counsel is
denied.
B. The motion to object to the answer is DENIED.
Petitioner objects to respondent’s answer.
Petitioner argues that
respondent was given an opportunity to file an answer but chose to merely file
a motion to dismiss the petition on statute of limitations grounds. Petitioner
argues that having lost on the motion to dismiss, respondent should not be
given a chance to file a supplemental answer.
Under Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts, it is permissible for a respondent to file a motion to
6
dismiss or for summary judgment on statute of limitations grounds, rather than
an answer on the merits. See Jackson v. Straub, 309 F. Supp. 2d 952, 959
(E.D. Mich. 2004). It was thus proper for respondent to file a motion to
dismiss the petition on statute of limitations grounds, rather than initially file
an answer addressing the merits. Having initially denied the motion to
dismiss, this Court had the authority to order respondent to file a
supplemental answer addressing the merits of the claims. Id. The motion to
object is DENIED.
C. The renewed motion to dismiss the petition is GRANTED.
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 (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;
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(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).
A petition for writ of habeas corpus must be dismissed where it has not
been filed within the one year statute of limitations. See e.g. Williams v.
Wilson, 149 F. App’x. 342 (6th Cir. 2005).
Petitioner’s direct appeal of his conviction ended when the Michigan
Supreme Court denied petitioner leave to appeal on March 29, 2016.
Petitioner’s conviction became final, for the purposes of the limitations period,
on the date that the 90 day time period for seeking certiorari with the U.S.
Supreme Court expired. See Jimenez v. Quarterman, 555 U.S. 113, 119
(2009). Petitioner’s judgment thus 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
8
had until June 27, 2017 to file his habeas petition in order for his petition to
be timely filed, 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, which was after the one year limitations
period expired.
In its prior opinion and order denying the motion to dismiss, this Court
agreed with respondent that the current petition is untimely unless the
limitations period was tolled.
Petitioner argued 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.
Respondent in his answer argues that petitioner’s state habeas petition
should not be considered a post-conviction motion that comes within the
purview of the tolling provisions of 28 U.S.C. § 2244(d)(2) because such
petitions cannot be used to challenge a criminal conviction under Michigan
law, unless there is a radical jurisdictional defect. Respondent further argues
that none of the claims that petitioner raised in his state petition for writ of
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habeas corpus amount to a radical jurisdictional defect and thus his state
petition for writ of habeas corpus was not a properly filed post-conviction
motion that would toll the limitations period.
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). However, an application for state post-conviction relief is
considered “properly filed,” for purposes of triggering the tolling provisions of
§ 2244(d)(2), only when “its delivery and acceptance are in compliance with
the applicable laws and rules governing filings, e.g. requirements concerning
the form of the document, the court and office in which it must be lodged,
payment of a filing fee, and applicable time limits upon its delivery.” Israfil v.
Russell, 276 F. 3d 768, 771 (6th Cir. 2001).
As this Court noted in its previous order, there are no Sixth Circuit cases
or published cases from this district or the Western District of Michigan on
whether a state petition for writ of habeas corpus qualifies as a properly filed
application for post-conviction relief that would toll the limitations period
pursuant to the provisions of 28 U.S.C. § 2244(d)(2).
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A majority of judges in this district who have addressed the issue in
unpublished opinions have concluded that a state petition for writ of habeas
corpus is not considered a properly filed post-conviction motion that would toll
the limitations period under § 2244(d)(2). See Lamay v. Balcarel, No.
2:13-CV-10482, 2013 WL 4053203, at * 4 (E.D. Mich. Aug. 12, 2013)(Drain,
J.); Brown v. Perry, No. 2:11-CV-10808, 2011 WL 5838677, at * 4 (E.D. Mich.
Nov. 21, 2011)(Cox, J.); Powell v. McKee, No. 10–12866, 2011 WL 1344581,
* 4 (E.D. Mich. Apr. 8, 2011)(Edmunds, J.); Northrop v. Wolfenbarger, No.
06–CV–13081, 2008 WL 564941, *2 (E.D. Mich. Feb. 28, 2008)(Borman, J.);
Javens v. Caruso, No. 07–CV–10175, 2007 WL 2516827, *2 (E.D. Mich. Aug.
31, 2007)(Borman, J.); Jackson v. Curtis, No. 05–CV–71711, 2005 U.S. Dist.
LEXIS 29254, *10 (E.D.Mich. Nov. 23, 2005)(Battani, J.).
In Jenkins v. Tribley, No. 11-14204; 2012 WL 995394, * 3-4 (E.D. Mich.
Mar. 22, 2012)(Cleland, J.), the court held that a state habeas petition can toll
the limitations period pursuant to § 2244(d)(2), at least where the petitioner
alleged a jurisdictional defect.
This Court has previously declined to rule on whether or not a
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
11
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. Oct.
31, 2012). This Court originally came to the same conclusion with respect to
this case.
After reviewing the arguments raised by respondent in his answer, the
applicable case law, and the issues raised by petitioner in his state habeas
petition, this Court agrees with respondent that, at least in this case,
petitioner’s state habeas petition did not constitute a post-conviction motion
within the meaning of the tolling provisions of § 2244(d)(2).
M.C.L.A. 600.4310(3) states that an action for writ of habeas corpus
may not be brought by or on behalf of persons convicted, or in execution,
upon legal process, civil or criminal. This statutory prohibition is consistent
with the rule that habeas corpus cannot serve as a substitute for an appeal
and cannot be used to review the merits of a criminal conviction. Cross v.
Department of Corrections, 103 Mich.App. 409, 414–415, 303 N.W.2d 218
(1981)(quoting People v. Price, 23 Mich.App. 663, 669, 179 N.W.2d 177
(1970)). A writ of habeas corpus in Michigan deals only with radical defects
which render a judgment or proceeding absolutely void. Triplett v. Deputy
Warden, 142 Mich. App. 774, 780; 371 N. W. 2d 862 (1985)(citing to In Re
12
Stone, 295 Mich. 207; 294 N.W. 156 (1940)). A judgment which is merely
erroneous, rather than void, is subject to [appellate] review and may not be
collaterally attacked in a habeas proceeding. Id. This policy of limiting habeas
proceedings in Michigan is “premised on the concern that such an action may
be abused and substituted for normal appellate proceedings.” Walls v.
Director of Institutional Services Maxie Boy’s Training School, 84 Mich. App.
355, 357; 269 N. W. 2d 599 (1978).
This line of cases is also consistent with M.C.R. 6.501, which 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, i.e., by the filing of a post-conviction motion for
relief from judgment. The 1989 Staff Comment to M.C.R. 6.501 states that
subchapter 6.500 “provides the exclusive means to challenge a conviction in
Michigan courts for a defendant who has had an appeal by right or by leave,
who has unsuccessfully sought leave to appeal, or who is unable to file an
application for leave to appeal to the Court of Appeals” because the time
period for filing such an appeal has elapsed. (emphasis added).
Although petitioner argued in his state petition for writ of habeas corpus
13
that the Wayne County Circuit Court lacked jurisdiction over his case, none
of the claims that he raised in his state petition constitute a radical
jurisdictional defect that could be properly challenged in a state petition for
writ of habeas corpus. 3
Petitioner first alleges that the arrest warrant was not properly issued,
signed, or returned. This, however, does not constitute a radical jurisdictional
defect that could be challenged in a state habeas petition. See Jones v. Dep’t
of Corr., No. 309182, 2013 WL 238689, at *1 (Mich. Ct. App. Jan. 22, 2013).
Petitioner further claimed that the information was not filed with the
circuit court at the time of arraignment but at a later date. Although MCR
6.112(C) requires that the information be filed with the circuit court at or
before the arraignment, the late filing of a felony information does not deprive
a circuit court of jurisdiction. People v. Cooper, No. 304610, 2013 WL
2223896, at * 6 (Mich. Ct. App. May 21, 2013). Petitioner’s related claim that
the information was defective in that it did not contain the names of the
witnesses who were expected to testify is likewise not a radical jurisdictional
defect. Once jurisdiction vests in the circuit court, it “is not lost even when a
3
See Complaint For Writ of Habeas Corpus, attached to the Petition
For Writ of Habeas Corpus. (Doc. 1, Pg ID 39-45).
14
void or improper information is filed.” People v. Goecke, 457 Mich. 442,
458–59, 579 N.W.2d 868, 876 (1998). In any event, errors in the drafting of
an information “are not so vital as to be destructive of the jurisdiction of the
court[.]” and thus “may not be assailed on this ground in a habeas corpus
proceeding.” In re Stone, 295 Mich. at 210.
Petitioner finally claims that the state trial court lacked subject matter
jurisdiction over his case because of a violation of Michigan’s 180 day rule
contained in M.C.L.A. 780.131. A violation of the 180 day rule does not
deprive a circuit court of subject matter jurisdiction. See People v. Lown, 488
Mich. 242, 268-70, 794 N.W.2d 9 (2011).
This Court concludes that petitioner is not entitled to tolling of the
limitations period pursuant to § 2244(d)(2) for the time that his state habeas
petition was pending in the state courts, because the petition did not qualify
as an application for state post-conviction relief recognized as such under
Michigan’s court rules and procedures governing post-conviction relief in
Michigan. See Adeline v. Stinson, 206 F. 3d 249, 252 (2nd Cir. 2000). The
claims raised by petitioner in his state petition for writ of habeas corpus did
not involve a radical jurisdictional defect.
The post-conviction remedy
afforded under M.C.R. 6.500, et. Seq., is the exclusive means to bring a post-
15
conviction challenge in Michigan. Petitioner’s state habeas petition does not
qualify under Michigan law as a properly filed application for post-conviction
relief and thus does not toll the limitations period pursuant to the provisions
of 28 U.S.C. § 2244(d)(2). See Seaton v. Kentucky, 92 F. App’x. 174, 175 (6th
Cir. 2004). The instant petition is untimely.
The AEDPA’s 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. 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
failed to argue or show that the facts of case support equitable tolling. See
Giles v. Wolfenbarger, 239 F. App’x. 145, 147 (6th Cir. 2007).
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The one year statute of limitations may be equitably tolled based upon
a credible showing of actual innocence under the standard enunciated in
Schlup v. Delo, 513 U.S. 298 (1995). McQuiggin v. Perkins, 569 U.S. 383,
386 (2013). The Supreme Court admonished 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 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 presented no new, reliable evidence to establish that he
17
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 (Claim #
3) does not establish his innocence, so as to toll the limitations period. 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)).
Any 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. Grayson v. Grayson, 185 F. Supp. 2d
747, 752 (E.D. Mich. 2002)(Roberts, J.).
Petitioner also argues that his trial counsel was ineffective for failing to
call his girlfriend Marquisha Profit as an alibi witness. Ms. Profit signed an
affidavit some two years after petitioner’s trial in which she indicated that “I
believe we spent the night together of April 9, 2012.” Ms. Profit claimed she
remembered “spending every night” with petitioner around this time.4 What is
significant is that Ms. Profit does not indicate that she is certain that petitioner
was with her on April 9th, nor does she indicate the specific times that
4
See Affidavit of Marquisha Profit, attached as Appendix A to the
motion to remand filed with the Michigan Court of Appeals. (Doc. 15-8, Pg
ID 1090-92).
18
petitioner was with her that day or night. In rejecting this claim on appeal, the
Michigan Court of Appeals noted that Ms. Profit’s proposed testimony that she
spent the night with petitioner would not have prevented him from committing
the offense at around 7 p.m. earlier in the evening. People v. Dickens, No.
321377, 2015 WL 5023002, at * 4 (Mich. Ct. App. Aug. 25, 2015).
Although the “failure to call alibi witnesses suggests legal insufficiency,”
this Court “cannot say that this testimony alone would have satisfied the high
bar for demonstrating factual innocence[.]” so as to excuse the untimely filing
of the petition. Bell v. Howes, 703 F.3d 848, 855 (6th Cir. 2012). Because
there was a window of opportunity for petitioner to have committed this
murder prior to the time that he was with Ms. Profit, the alleged alibi evidence
has provided very little credible evidence of petitioner’s innocence, so as to
excuse the untimely filing of the petition. See Turner v. Romanowski, 409 F.
App’x. 922, 927-30 (6th Cir. 2011).
III. Conclusion
The Court summarily denies the petition as being barred by the
AEDPA’s one year statute of limitations contained in § 2244(d)(1).
28 U.S.C. § 2253(c)(1)(A) and F.R.A.P. 22(b) state that an appeal from
the district court’s denial of a writ of habeas corpus may not be taken unless
19
a certificate of appealability (COA) is issued either by a circuit court or district
court judge. If an appeal is taken by an applicant for a writ of habeas corpus,
the district court judge shall either issue a certificate of appealability or state
the reasons why a certificate of appealability shall not issue. F.R.A.P. 22(b).
To obtain a certificate of appealability, a prisoner must make 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 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. Slack v. McDaniel, 529 U.S. 473,
484 (2000). “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.
Although the Court believes that the petition is barred by the statute of
limitations, it will nonetheless issue a certificate of appealability on the issue
of whether petitioner’s state habeas petition qualifies as a state post-
20
conviction motion within the meaning of § 2244(d)(2), because one judge in
this district has resolved this issue in a different manner. Moreover, this issue
deserves encouragement to proceed further, since appellate review of this
issue could provide important guidance to federal habeas courts in the Sixth
Circuit on this issue. See Laboy v. Demskie, 947 F. Supp. 733, 745 (S.D.N.Y.
1996). The Court will also grant a certificate of appealability on whether
petitioner has made a colorable claim of actual innocence so as to toll the
limitations period. Because this Court grants a certificate of appealability,
petitioner is granted leave to appeal in forma pauperis. See Brown v. United
States, 187 F. Supp. 2d 887, 893 (E.D. Mich. 2002).
IV. ORDER
Based upon the foregoing, IT IS ORDERED that:
(1) The petition for a writ of habeas corpus is SUMMARILY
DENIED WITH PREJUDICE pursuant to 28 U.S.C. § 2244(D).
(2) The motions for the appointment of counsel and objecting to the
Court order (Docs. 16 and 17) are DENIED.
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(3) A certificate of appealability is GRANTED.
(4) Petitioner is GRANTED leave to appeal in forma pauperis.
s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: April 30, 2018
I hereby certify that a copy of the foregoing document was served upon
counsel of record on April 30, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
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