Carter v. Stephenson

Filing 9

OPINION and ORDER Denying Respondent's 5 MOTION to Dismiss and Directing Respondent to File an Answer Signed by District Judge Terrence G. Berg. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANDRE LAMAR CARTER,

2:22-CV-12972-TGB-APP
HON. TERRENCE G. BERG

Petitioner,
vs.
GEORGE STEPHENSON,
Respondent.

OPINION AND ORDER
DENYING RESPONDENT’S
MOTION TO DISMISS
(ECF NO. 5) AND DIRECTING
RESPONDENT TO FILE AN
ANSWER

Andre Lamar Carter has petitioned for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his petition, filed through counsel,
Carter challenges his convictions for three counts of assault with intent
to commit murder, MCL § 750.83, two counts of resisting arrest,
MCL § 750.81d(1), resisting arrest causing injury, MCL § 750.81d(2),
possession of less than 25 grams of cocaine, MCL § 333.7403(2)(a)(v),
felon in possession of a firearm, MCL § 750.224f, and eight counts of
possession of a firearm during the commission of a felony, second offense,
MCL § 750.227b. Respondent moved to dismiss the petition on the ground
that

it

is

barred

by

the

applicable

statute

of

limitations,

28 U.S.C. § 2244(d)(1). ECF No. 5. Carter filed a response to the motion
to dismiss. ECF No. 7. Respondent filed a reply brief. ECF No. 8. For the
reasons below, the Court DENIES Respondent’s motion.

I. BACKGROUND
Carter was convicted by a jury in Wayne County Circuit Court. The
Michigan Court of Appeals affirmed Carter’s convictions on his appeal by
right. People v. Carter, No. 340645, 2020 WL 6814659 (Mich. Ct. App.
Nov. 19, 2020). On September 8, 2021, the Michigan Supreme Court
denied Carter leave to appeal. People v. Carter, 508 Mich. 924 (Mich.
2021).
On December 8, 2023, Carter filed the instant petition for a writ of
habeas corpus through counsel.
II. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a one-year statute of limitations applies to a petition by a
person that is in custody pursuant to a state court judgment. 28 U.S.C. §
2244(d)(1). The one-year limitations period runs from the latest of the
following:
(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
2

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.
Id.
Carter is not relying on a newly-recognized constitutional right or
newly-discovered facts, and he has not alleged that a state-created
impediment prevented him from making a timely petition. Consequently,
the relevant subsection here 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).
Carter did not petition for a writ of certiorari with the United States
Supreme Court. His opportunity to do so expired on December 7, 2021.
See Sup. Ct. R. 13.1 (setting 90-day period for petitioning for a writ of
certiorari). Respondent argues that the judgment became final on
December 7, 2021, and that the time for filing a habeas corpus petition
expired on December 7, 2022, the anniversary of the date of finality. ECF
No. 8, PageID.1975–76. Carter contends the date of finality is December
8, 2021:
Because Mr. Carter’s ability to challenge the state court conviction
ran through December 7, 2021, his judgment of conviction and
sentence was not final until 12:00:00 a.m. on December 8, 2021.
ECF No. 7, PageID.1955.
3

Carter’s argument is contrary to Supreme Court and Sixth Circuit
precedent. When a petitioner does not petition for a writ of certiorari, his
conviction becomes final on the day the time for seeking certiorari
expired. Gonzalez v. Thaler, 565 U.S. 134, 149 (2012). Carter’s time for
filing a certiorari petition expired on December 7, 2021, the date of
finality. To calculate AEDPA’s limitations period, the Sixth Circuit has
adopted the “anniversary method.” Moss v. Miniard, 62 F.4th 1002, 1009
(6th Cir. 2023) (citing Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir.
2000)). Under the anniversary method, the limitations period ends on
“the anniversary of the day of finality.” Id. at 1010. This method “has the
advantage of being easier for petitioners, their attorneys and the courts
to remember and apply.” See Patterson v. Stewart, 251 F.3d 1243, 1246
(9th Cir. 2001); see also United States v. Marcello, 212 F.3d 2005 1009-10
(7th Cir. 2000) (explaining that the anniversary method “is clear and
predictable and therefore easier for litigants to remember, for lawyers to
put in their tickler files, and for courts to administer”).
In this case, the date of finality was December 7, 2021, and, under
the anniversary method, the one-year statute of limitations expired on
December 7, 2022. The petition, filed on December 8, 2022, is untimely.
But the one-year limitations period applicable to § 2254 is also
subject to equitable tolling when a petitioner “has been pursuing his
rights diligently” and “extraordinary circumstances” prevented his
4

timely filing. Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner
bears the burden of showing equitable tolling is warranted. Allen v.
Yukins, 366 F.3d 396, 401 (6th Cir. 2004). Equitable tolling relief should
be granted “sparingly.” Moss, 62 F.4th at 1010.
Though “courts of equity must be governed by rules and
precedents…,” the “exercise of a court’s equity power…must be made on
a case-by-case basis[.]” Holland, 560 U.S. at 649–50 (quotations and
citations omitted). The Supreme Court has emphasized the need for
“flexibility” in the exercise of a court’s equity powers to enable courts “to
meet new situations [that] demand equitable intervention, and to accord
all the relief necessary to correct…particular injustices.” Id. at 650
(quotation omitted).
Carter has been diligently challenging his convictions. The filing of
his petition—one day late, based on his attorney’s miscalculation of the
limitations period—does not contradict a finding of diligence.
Carter argues that the Sixth Circuit’s inconsistent application of
the anniversary method establishes an extraordinary circumstance for
equitable tolling. In Moss, the majority acknowledged the Sixth Circuit’s
incorrect

application

of

the

anniversary

method

in

numerous

unpublished decisions. Id. at 1010, n.4. While the cases cited by the
majority in Moss were unpublished, non-binding decisions, the dissent
noted that—in its decision announcing and explaining application of the
5

anniversary method—the Sixth Circuit was inconsistent: “calculat[ing]
timeliness in two different ways.” Id. at 1020 (dissent) (citing Bronaugh
v. Ohio, 235 F.3d 280, 284 (6th Cir. 2000)). The Court finds that the
“confused caselaw” is an extraordinary circumstance that warrants
equitable tolling for one day.
IV. CONCLUSION
The Court DENIES the Respondent’s Motion to Dismiss. ECF No.
5. The Court ORDERS Respondent to file an answer, in accordance with
Rule 5, Rules Governing Section 2254 cases, addressing the merits of the
petition for a writ of habeas corpus within SIXTY DAYS from the date
of this Order.
SO ORDERED.

Dated: March 26, 2024

/s/Terrence G. Berg
HON. TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

6

Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served via electronic and/or
ordinary mail.
Dated: March 26, 2024

By: /s/T. McGovern
Case Manager

7