Thomas v. Trieweiler

Filing 7

OPINION and ORDER summarily dismissing 1 Petition for Writ of Habeas Corpus and declining to issue a Certificate of Appealability or leave to appeal In Forma Pauperis. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANDRE R. THOMAS,
Petitioner,
v.

Civil Action No. 18-CV-11620
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

TONY TRIEWEILER,
Respondent.
______________________/
OPINION AND ORDER SUMMARILY DISMISSING THE
PETITION FOR A WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
Andre R. Thomas, (“Petitioner”), confined at the Bellamy Creek
Correctional Facility in Ionia, Michigan, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions
for three counts of assault with intent to commit murder, Mich. Comp. Laws
§ 750.83, intentional discharge of a firearm at a dwelling or occupied
structure, Mich. Comp. Laws § 750.234b, felony-firearm, Mich. Comp.
Laws § 750.227b, and felon in possession of a firearm, Mich. Comp. Laws
§ 750.224f. Respondent filed a motion to dismiss the petition, on the
ground that it was not timely filed in accordance with the statute of

-1-

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 convicted following a jury trial in the Wayne County
Circuit Court. Direct review of petitioner’s conviction ended in the Michigan
courts on May 2, 2016, when the Michigan Supreme Court denied
petitioner leave to appeal after the Michigan Court of Appeals affirmed his
conviction on his appeal of right. People v. Thomas, 499 Mich. 914, 877
N.W.2d 729 (2016).
On August 4, 2016, petitioner filed a post-conviction motion for relief
from judgment with the trial court pursuant to M.C.R. 6.500, et. seq., which
was denied. People v. Thomas, No. 13-006765-01-FC (Wayne County
Circuit Court, Nov. 9, 2016). On August 4, 2017, petitioner filed his
delayed application for leave to appeal with the Michigan Court of Appeals.
The Michigan Court of Appeals dismissed petitioner delayed application for
leave to appeal for being untimely because it was filed beyond the six
month time period to file an appeal. People v. Thomas, No. 339584 (Mich.
Ct. App. Sept. 26, 2017). Petitioner did not file an application for leave to
appeal with the Michigan Supreme Court. See ECF 6-20. Petitioner filed

-2-

an unsigned and undated petition for a writ of habeas corpus on May 21,
2018.
Respondent filed a motion to dismiss the petition on statute of
limitations grounds on November 28, 2018.
II. Discussion
Respondent has filed a motion to dismiss the petition for a 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 (2nd Cir.1999); see also
Cooey v. Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), which
was signed into law on April 24, 1996, amended the habeas corpus statute
in several respects, one of which was to mandate a statute of limitations for
habeas actions. 28 U.S.C. § 2244(d) imposes a one-year statute of
limitations upon petitions for habeas relief:
(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
-3-

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;
© the date on which the constitutional right asserted was
originally 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.
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). Otherwise, a petition
for a 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). A merits decision is unnecessary
where a district court denies a habeas petition on statute of limitations
grounds. See Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007).
In the present case, the Michigan Supreme Court denied petitioner’s
application for leave to appeal on direct review on May 2, 2016.
If a petitioner appeals to the Michigan Supreme Court, but does not

-4-

petition the United States Supreme Court for a writ of certiorari, his
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, 119 (2009). 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.
Petitioner’s judgment became final on July 31, 2016, when he failed
to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas
v. Straub, 10 F. Supp. 2d 834, 835 (E.D. Mich. 1998). The statute of
limitations began the next day, August 1, 2016. Absent state collateral
review, petitioner would have been required to file his petition for a writ of
habeas corpus with this Court no later than August 1, 2017 in order for the
petition to be timely filed. See Corbin v. Straub, 156 F. Supp. 2d 833, 836
(E.D. Mich. 2001).
Petitioner filed his post-conviction motion for relief from judgment with
the state trial court on August 4, 2016, after three days had elapsed on the
one year statute of limitations. 28 U.S.C. § 2244(d)(2) expressly provides

-5-

that the time during which a properly filed application for state postconviction relief or other collateral review is pending shall not be counted
towards the period of limitations contained in the statute. Corbin v. Straub,
156 F. Supp. 2d at 836. The trial court denied petitioner’s motion for relief
from judgment on November 9, 2016.
Petitioner filed his post-conviction application for leave to appeal to
the Michigan Court of Appeals on August 4, 2017. The Michigan Court of
Appeals rejected the appeal because it was filed beyond the six month time
limit for filing such an appeal.
A habeas petitioner is entitled to tolling of the limitations period under
28 U.S.C. § 2244(d)(2) for the time that he 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
M.C.R. 7.205(F), petitioner had six months to file a delayed application for
leave to appeal following the denial of his motion for relief from judgment
on November 9, 2016. The tolling would have ended pursuant to 28 U.S.C.
§ 2244(d)(2) on May 9, 2017, when the time period to file an appeal
expired.
Petitioner’s untimely application for leave to appeal to the Michigan

-6-

Court of Appeals, filed after the expiration of the 6 month time period for
petitioner to file his appeal, would not toll the limitations period. “[U]ntimely
state collateral attacks are not properly filed and do not toll the statute of
limitations.” Raglin v. Randle, 10 F. App’x 314, 315 (6th Cir. 2001).
Petitioner’s limitations period began running again on May 9, 2017.
Petitioner had 362 days remaining to file his petition, which would have
been no later than May 6, 2018. The petition was untimely because it was
filed on May 21, 2018.1
However, 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

1

Although under the prison mailbox rule, a Court can assume that a habeas
petitioner filed his habeas petition on the date that it was signed and dated, See Towns
v. U.S., 190 F.3d 468, 469 (6th Cir. 1999), petitioner did not sign and date his petition.
Accordingly, the Court must consider the petition filed on the date it was actually filed.
See, e.g., Beaumont v. Bottom, No. 3:13CV-P1158-H, 2014 WL 2548103, at *1, fn.1
(W.D. Ky. June 5, 2014).

-7-

F.3d 781, 784 (6th Cir. 2010). The burden is on a habeas petitioner to
show that he is entitled to the equitable tolling of the one year limitations
period. Id.
Petitioner did not file a response to the motion to dismiss. In his
petition, See ECF Pg ID 6, as well as in an affidavit that he submitted with
his untimely post-conviction appeal to the Michigan Court of Appeals,
petitioner claimed that he accidentally sent his application for leave to
appeal to the Wayne County Circuit Court by mistake on May 5, 2017,
which was received by that court on May 10, 2017. See Affidavit of Andre
R. Thomas, dated September 16, 2017, ECF 6-19, Pg ID 1530-31.
Assuming that petitioner mistakenly sent his application for leave to
appeal to the Wayne County Circuit Court and not to the Michigan Court of
Appeals, he would not be entitled to equitable tolling of the limitations
period, because petitioner’s mistake in sending his post-conviction appeal
to the wrong address or forum was not an extraordinary circumstance that
would toll the limitations period, but was simply a “garden variety claim of
excusable neglect” that would not justify equitable tolling. See Gutierrez v.
California, 411 F. App’x 952, 953 (9th Cir. 2011)(state prisoner’s confusion
about proper address of state court of appeal was not an extraordinary

-8-

circumstance that would warrant equitable tolling of the limitations period
for his writ of habeas corpus); U.S. v. Kirkham, 367 F. App’x 539, 541-43
(5th Cir. 2010)(federal defendant’s error of sending his § 2255 motion to
vacate sentence to a state court rather than to the federal district court
was, at best, a “garden variety” claim of excusable neglect, and thus was
insufficient to justify equitable tolling of the deadline for filing his motion);
Hill v. Jones, 242 F. App’x 633, 636-37 (11th Cir. 2007)(circumstances
surrounding error in misaddressing the notice of appeal, that caused
prisoner’s state habeas appeal to be filed untimely, were not sufficiently
extraordinary, such that equitable tolling of the one-year statute of
limitations for seeking federal habeas relief was warranted; error was both
within prisoner’s control and avoidable by him with even minimal diligence,
and there was no evidence that filing delay was a consequence of
malfeasance on the part of the state); Bunting v. Phelps, 687 F. Supp. 2d
444, 448 (D. Del. 2009)(petitioner’s act of filing state post-conviction motion
in wrong court did not justify equitable tolling). Moreover, assuming that
petitioner had mailed his post-conviction appeal to the Wayne County
Circuit Court, that court was under “no duty to facilitate the proper filing of”
petitioner’s application with the Michigan Court of Appeals. Kirkham, 367 F.

-9-

App’x at 543.
However, the one year statute of limitations may be equitably tolled if
the petitioner can make 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 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). 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 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.

-10-

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 crimes charged. See Ross v.
Berghuis, 417 F.3d 552, 556 (6th Cir. 2005). Although petitioner
challenges the legal sufficiency of the evidence to convict him, petitioner’s
sufficiency 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. 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)).
III. Conclusion
The Court determines that the current habeas petition is barred by
the AEDPA’s one year statute of limitations contained in § 2244(d)(1). The
Court will summarily dismiss the current petition. The Court will also deny
petitioner a certificate of appealability. 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 a certificate of appealability
(COA) is issued either by a circuit court or district court judge. If an appeal

-11-

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.” See Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll.
§ 2254.
The Court will deny petitioner a certificate of appealability, because
reasonable jurists would not find it debatable whether this Court was
correct in determining that petitioner had filed his habeas petition outside of

-12-

the one year limitations period. Grayson v. Grayson, 185 F. Supp. 2d 745,
753 (E.D. Mich. 2002). The Court will also deny petitioner leave to appeal
in forma pauperis, because the appeal would be frivolous. Myers v. Straub,
159 F. Supp. 2d 621, 629 (E.D. Mich. 2001).
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ
of habeas corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be DENIED leave to
appeal in forma pauperis.
Dated: February 19, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 19, 2019, by electronic and/or ordinary mail and also
on Andre R. Thomas #778308, Bellamy Creek Correctional
Facility, 1727 West Bluewater Highway, Ionia, MI 48846.
s/Barbara Radke
Deputy Clerk

-13-