Robinson v. Skipper

Filing 11

OPINION and ORDER Granting Respondent's re 7 MOTION to Dismiss Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Gershwin A. Drain. (TMcg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCEL JEROME ROBINSON,
Petitioner,

Case No. 19-cv-12561

v.

U.S. DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

GREGORY SKIPPER,
Respondent.                           
______________                              /      

OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO
DISMISS [#7] AND DENYING CERTIFICATE OF APPEALABILITY
I.  INTRODUCTION 
Petitioner Marcel Jerome Robinson filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Robinson is a state prisoner in the custody of the Michigan
Department of Corrections pursuant to convictions for first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b, assault with intent to commit criminal
sexual conduct involving penetration, Mich. Comp. Laws § 750.520g, unlawful
imprisonment, Mich. Comp. Laws § 750.349b, and assault with intent to commit
great bodily harm less than murder, Mich. Comp. Laws § 750.84.
Presently before the Court is Respondent Skipper’s Motion to Dismiss, which
argues that the habeas petition should be dismissed because it is untimely. ECF No.
7. Petitioner filed a Response on January 9, 2020. ECF No. 9. For the reasons
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discussed herein, the Court finds the petition for a writ of habeas corpus is untimely
and will GRANT Respondent’s Motion [#7]. The Court also declines to issue a
certificate of appealability.
II. PROCEDURAL BACKGROUND
Following a jury trial in Genesee County Circuit Court, Petitioner Robinson
was convicted of one count of first-degree criminal sexual conduct, Mich. Comp.
Laws § 750.520b, one count of assault with intent to commit criminal sexual conduct
involving penetration, Mich. Comp. Laws § 750.520g, one count of unlawful
imprisonment, Mich. Comp. Laws § 750.349b, and one count of assault with intent
to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84. See
ECF No. 8-13, PageID.820. On October 19, 2015, he was sentenced to 23 to 40
years for first-degree criminal sexual conduct, 5 to 10 years for assault with intent
to commit sexual penetration, 10 to 15 years for unlawful imprisonment, and 5 to 10
years for assault with intent to commit great bodily harm less than murder. See ECF
No. 8-14, PageID.834.
Petitioner filed an appeal of right in the Michigan Court of Appeals
challenging his convictions and sentences.

The Michigan Court of Appeals

affirmed. People v. Robinson, No. 330304, 2017 WL 1337484, at 1 (Mich. Ct. App.
April 11, 2017). The Michigan Supreme Court subsequently denied Robinson’s
application for leave to appeal. People v. Robinson, 501 Mich. 927 (Nov. 29, 2017).
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Petitioner filed a petition for writ of habeas corpus in this Court on August 20,
2018. The Court ordered Petitioner to correct two filing deficiencies: the failure to
submit service copies and the failure to pay the filing fee or to file an application for
leave to proceed in forma pauperis. See Robinson v. Jackson, No. 18-12677 at ECF
Nos. 4, 5. On October 23, 2018, the Court dismissed the petition without prejudice
because Robinson failed to file two copies of his petition. Id. at ECF No. 9.
On August 27, 2019, Robinson filed the pending habeas corpus petition. ECF
No. 1. On December 9, 2019, Respondent Skipper filed a Motion to Dismiss on the
grounds that the petition was not filed within the applicable one-year statute of
limitations. ECF No. 7. Robinson filed a Response on January 9, 2020, arguing that
he corrected the copy deficiency in the earlier case by giving the service copies to a
prison employee for mailing before the deadline for correcting the deficiency
expired. ECF No. 9. He also argues that the Order dismissing his petition without
prejudice failed to advise him that he needed to refile his petition within a certain
period of time. Id.
III. DISCUSSION
A one-year limitations period applies to all habeas corpus petitions. See 28
U.S.C. § 2254(d)(1). A prisoner must file a federal habeas corpus petition “from the
latest” of four dates: (A) the date on which the state-court judgment became final;
(B) the removal date of an unconstitutional state impediment to filing for federal
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habeas relief; (C) the date the Supreme Court recognizes a new constitutional right
made retroactive and applicable to collateral review; or (D) the date the prisoner
discovered new facts that could not have been discovered previously. 28 U.S.C. §
2244(d)(1).
Here, Petitioner is not relying on a newly recognized constitutional right or on
newly discovered facts, and he has not alleged that a state-created impediment
prevented him from filing a timely petition. Consequently, the relevant subsection
here is § 2244(d)(1)(A), which states that a conviction becomes final at “the
conclusion of direct review or the expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A).
Under § 2244(d)(1)(A), the petition was not timely filed. Robinson appealed
his convictions first to the Michigan Court of Appeals and then to the Michigan
Supreme Court. The Michigan Supreme Court denied leave to appeal on November
29, 2017. Robinson had ninety days from that date to file a petition for writ of
certiorari with the United States Supreme Court, which he did not do. Thus, his
conviction became final on February 27, 2018, when the time period for seeking
certiorari expired. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (one-year
statute of limitations does not begin to run until the time for filing a petition for a
writ of certiorari for direct review in the United States Supreme Court has expired).
The last day on which a petitioner can file a petition for a writ of certiorari in the
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United States Supreme Court is not counted toward the one-year limitations period
applicable to habeas corpus petitions.

Id. at 285.

Accordingly, Petitioner’s

limitations period commenced on February 28, 2018.
Robinson did not file his first habeas petition, however, until August 20, 2018.
That petition was dismissed without prejudice on October 24, 2018. See Robinson
v. Jackson, No. 18-12677, ECF No. 9. The one-year limitations period is not
statutorily tolled during the pendency of a federal habeas petition, Duncan v. Walker,
533 U.S. 167, 180 (2001), but it may be equitably tolled, see id. at 182-83 (Stevens,
J., concurring); Thomas v. Romanowski, 362 F. App’x 452, 454 (6th Cir. 2010). The
Court assumes, without deciding, that the limitations period was equitably tolled
while Robinson’s habeas petition was pending—that is, from August 20, 2018
through October 24, 2018.

The limitations period, with 192 days remaining,

resumed running on October 25, 2018. It continued to run until it expired on May
5, 2019. Robinson’s habeas petition, filed on August 20, 2019, was therefore filed
over three months after the limitations period expired.
Equitable tolling is available to toll a statute of limitations when “‘a litigant’s
failure to meet a legally-mandated deadline unavoidably arose from circumstances
beyond that litigant’s control.’” Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir.
2010) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209
F.3d 552, 560-61 (6th Cir. 2000)). In the habeas context, to be entitled to equitable
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tolling, a petitioner must show “‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way’ and prevented timely
filing.”

Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). A claim of actual innocence may also
justify equitable tolling in certain circumstances. Souter v. Jones, 395 F.3d 577, 588
(6th Cir. 2005). A petitioner bears the burden of showing that he is entitled to
equitable tolling. Robertson, 624 F.3d at 784.
In response to the motion to dismiss, Robinson argues that he corrected the
copy deficiency in his original habeas petition by giving a prison official two copies
of the petition on September 20, 2018. See ECF No. 9, PageID.1828. Petitioner is
not entitled to equitable tolling on this basis because he did not show diligence in
pursuing his rights. His first petition was dismissed on October 24, 2018. Robinson
waited approximately ten months to file the pending petition. His only explanation
for the delay is that in the original dismissal Order he was not advised that a oneyear limitations period applies to habeas corpus petitions. Id. However, Petitioner’s
ignorance of the law is insufficient to warrant equitable tolling. Allen v. Yukins, 366
F.3d 396, 403 (6th Cir. 2004). “District judges have no obligation to act as counsel
or paralegal to pro se litigants” and are not required to caution litigants about
AEDPA’s statute of limitations. Pliler v. Ford, 542 U.S. 225, 231 (2004).

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Additionally, Petitioner does not present a credible claim of actual innocence.
McQuiggin v. Perkins, 569 U.S. 383, 392-93 (2013); Schlup v. Delo, 513 U.S. 298,
324 (1995) (holding that a valid claim of actual innocence requires a petitioner “to
support his allegations of constitutional error with new reliable evidence – whether
it be exculpatory scientific evidence, trustworthy eyewitness account, or critical
physical evidence – that was not presented at trial.”). He presents no evidence to
“show that it is more likely than not that no reasonable juror would have convicted
him in the light of the new evidence.” Schlup, 513 U.S. at 327. Therefore, equitable
tolling is not warranted here, and the petition is untimely.
IV. CONCLUSION
For the reasons discussed above, Respondent’s motion for dismissal is
GRANTED. The petition is DISMISSED.
Further, because jurists of reason could not find the Court’s procedural ruling
that the petition is untimely debatable, a certificate of appealability is DENIED. See
28 U.S.C. § 2253(c)(1)(a), (c)(2); Fed. R. App. P. 22(b).
IT IS SO ORDERED.

s/Gershwin A. Drain_________________
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: October 14, 2020
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 14, 2020, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager

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