Person v. Floyd
OPINION AND ORDER Granting Respondent's Motion to Dismiss 11 and Dismissing Petition. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Hon. Denise Page Hood
OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO
DISMISS [ECF NO. 11] AND DISMISSING PETITION
Petitioner Rodney Person, a state prisoner currently incarcerated at
the Cooper Street Correctional Facility in Jackson, Michigan, seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
Petitioner challenges his Wayne County convictions and sentence for firstdegree home invasion, Mich. Comp. Laws § 750.110a(2), and larceny in a
building, Mich. Comp. Laws § 750.360, for which he is serving prison terms
of eleven to forty years, and five years, fourth months to eight years,
respectively. Now before the Court is Respondent’s motion to dismiss the
petition as untimely. ECF No. 11.
The Court having now reviewed all pleadings, the motion is granted
and the petition will be dismissed. An explanation follows.
Petitioner was convicted following a Wayne County Circuit Court jury
trial of first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and
larceny in a building, Mich. Comp. Laws § 750.360. People v. Person, No.
335534, 2018 WL 2944196, at *1 (Mich. Ct. App. June 12, 2018). The
Michigan Court of Appeals summarized the facts of his case as follows:
Defendant's convictions arise from the break-in and theft of
property at a home in Detroit on June 5, 2016. The complainant
arrived home and saw that her kitchen windows were broken.
She heard a noise coming from the upper floor of the house, so
she called 911. Officers Wilbur Medley and Karen Boudreaux
were the first officers to arrive. Medley saw defendant emerge
from a window on the rear side of the house. A second police
unit, Officers Roger Salcedo and Marcus McClung, arrived as
defendant ran from the house. The officers gave chase and
apprehended defendant a short distance from the house.
Medley searched defendant and found plastic bags containing
coins, jewelry, and a book of trading stamps, which the
complainant identified as items taken from her home.
Id. The court of appeals affirmed Petitioner’s convictions and sentences,
id., and the state supreme court denied leave to appeal. People v. Person,
503 Mich. 954 (2019) (Mem.).
Petitioner’s direct appeal of his convictions and sentence in the state
courts ended on March 5, 2019, when the Michigan Supreme Court denied
his application for leave to appeal. Id. Petitioner’s one-year limitations
period to file a habeas petition began to run on June 3, 2019, after the
expiration of the ninety days during which he could have filed a petition for
certiorari at the United States Supreme Court. See Scarber v. Palmer, 808
F.3d 1093, 1095 (6th Cir. 2015) (citing Bronaugh v. Ohio, 235 F.3d 280,
285 (6th Cir. 2000)). The deadline for Petitioner to file his habeas petition
expired on June 3, 2020. See Bronaugh, 235 F.3d at 283 (citing Isham v.
Randle, 226 F.3d 691, 694–95 (6th Cir. 2000); 28 U.S.C. § 2244(d)(1)(A)).
Petitioner’s application for a writ of habeas corpus was signed April 20,
2021, over ten months after that deadline.
Respondent argues the petition should be dismissed as untimely.
Mot., ECF No. 11. In response, Petitioner asserts that he “contacted the
court multiple times about the petition [he] filed on April 23, 2020.” Letter,
ECF No. 13, PageID.788. In support, his first exhibit is a typed letter to the
Clerk of this Court dated June 16, 2020, noting that he placed his habeas
petition in the mail on April 23, 2020, and inquiring whether it had been
filed. Id. at PageID.789. Handwritten on the letter is the case number 2011666. Id. The letter contains no markings indicating its receipt by this
Court, nor does it reflect that it was docketed with a case.
Petitioner’s next exhibit is a June 19, 2020, letter from the Clerk’s
office, noting that it had “not received the proper documents to file a
Habeas case for Rodney Person.” Case No. 21-10994, ECF No. 13,
PageID.791. Finally, Petitioner includes a letter from the Clerk’s office
dated September 23, 2020, which says, “[w]e have no case in our system
for you. 20-11666 is for Henry Person. Please resend your petition and we
will process it.” Id. at 796.
In a response to this Court’s order to show cause why the petition
should not be dismissed as untimely, ECF No. 4, Petitioner submitted
additional documents to prove a timely filing, including an April 23, 2020,
disbursement authorization for legal mail. ECF No. 6, PageID.82. That
document reflects a U.S. Postal Service tracking number that ends in 3889
72, for $10.55 in postage. Id. However, the tracking number on the
envelope in which the petition, as it was received on May 3, 2021, ended in
0892 18. ECF No. 1, PageID.53. And the postage was only $9.90. Id.
The Court also notes that Petitioner signed and dated both his
original petition and his brief in support “4/20/21.” ECF No. 1, PageID.5, 45.
His certificate of service includes the same date twice; however, on that
document, the year was originally typed as 2020, but the second zero was
overwritten by hand with a “1.” Id. at PageID.52. Petitioner’s application to
proceed in forma pauperis is also dated 4/20/21, ECF No. 2, PageID.57, as
is his motion for an evidentiary hearing. ECF No. 3, PageID.71.
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241, et seq., includes a one-year
period of limitations for habeas petitions brought by prisoners challenging
state court judgments. As it applies to Petitioner’s case, the statute
(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
conclusion of direct review or the expiration of the time for
seeking such review. . .
28 U.S.C. § 2244(d). A habeas petition filed outside the statutory time
period must be dismissed. See Pace v. DiGuglielmo, 544 U.S. 408, 419
Having reviewed the pleadings, the Court finds that the habeas
petition is untimely, as it was filed in April 2021, several months after the
limitations period expired in June 2020. The Court finds most persuasive
the fact that Petitioner consistently signed the petition and accompanying
documents with the April 2021 date. Further, his attempts to back date the
petition’s submission to April 2020 fail. The tracking and postage details of
Petitioner’s legal mail disbursement authorization form, offered to indicate
he filed his habeas petition in April 2020, do not correspond to the
information on the envelope in which his petition was sent in April 2021.
Granted, courts may excuse a petitioner’s untimely filing under the
concept of “equitable tolling,” but “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 timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (quoting Pace, 544 U.S. at 418).
In his response to the motion to dismiss, Petitioner provides exhibits
reflecting correspondence with the Clerk’s office of this Court. However,
even if Petitioner attempted to file his original petition in April 2020, the
Clerk’s office in both June and September 2020 clearly informed him no
habeas petition had been received on his behalf and that he must resubmit
the petition. ECF No. 13, PageID.796.
Petitioner has failed to allege any extraordinary circumstances which
caused him to file the instant petition after the expiration of the statute of
limitations; nor has he argued he was diligent in seeking either state or
federal post-conviction relief. Most notably, Petitioner provides no
explanation for the delay between September 2020, when the Clerk’s office
instructed him to refile his habeas petition, to April 2021, when he finally
resent the petition. Petitioner has thus failed to demonstrate the necessary
diligence for the Court to consider equitable tolling. In addition, although he
had been informed by the Clerk’s office that his purportedly timely habeas
petition was never received or docketed by the Court, he made no attempt
when filing his petition to draw that information to the Court’s attention.
III.Conclusion and Order
Based upon the foregoing discussion, the Court concludes that the
habeas petition is untimely, and that Petitioner is not entitled to equitable
tolling of the one-year limitations period. Accordingly, the Court GRANTS
Respondent’s motion to dismiss, ECF No. 11, and DISMISSES WITH
PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court's decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P.
22(b). A certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a district court denies relief on the merits, the
substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court's assessment of the claim debatable
or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a district
court denies relief on procedural grounds without addressing the merits, a
certificate of appealability should issue if it is shown 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. Id.
In this case, jurists of reason could not find the Court's procedural ruling
that the habeas petition is untimely debatable. Accordingly, the Court
DENIES a certificate of appealability.
Finally, the Court finds that an appeal from this decision cannot be
taken in good faith. See Fed. R. App. P. 24(a). Accordingly, the Court
DENIES Petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
s/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: July 29, 2022
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