Parish v. Tanner

Filing 7

OPINION AND ORDER denying 1 Petition for writ of habeas corpus, denyng 6 Motion for cause and entitlement to equitable tolling, denying certificate of appealability, granting 2 Application to proceed without paying fees or costs, and granting permission to proceed in forma pauperis on appeal. Signed by District Judge Terrence G. Berg. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMAN AMR PARISH,
Petitioner,
v.
JEFFERY TANNER,
Respondent.

2:23-CV-12902-TGB-PTM
OPINION AND ORDER
(1) SUMMARILY DENYING
PETITION FOR WRIT OF
HABEAS CORPUS,
(2) DENYING MOTION FOR
CAUSE AND ENTITLEMENT
TO EQUITABLE TOLLING,
(3) DENYING CERTIFICATE
OF APPEALABILITY, AND
(4) GRANTING PETITIONER
PERMISSION TO PROCEED
IN FORMA PAUPERIS ON
APPEAL

Jaman Amr Parish (“Parish”), a Michigan prisoner without a
lawyer, brought this habeas petition under 28 U.S.C. § 2254 on November
15, 2023. ECF No. 1. On July 2, 2024, the Court ordered Parish to show
cause why his habeas petition should not be dismissed as untimely under
the statute of limitations contained in 28 U.S.C. § 2244(d)(1). ECF No. 5.
On August 19, 2024, Parish filed a motion for cause and entitlement to
equitable tolling. ECF No. 6. For the reasons stated below, Parish’s
motion for cause and entitlement to equitable tolling (ECF No. 6) will be
DENIED and Parish’s petition for a writ of habeas corpus (ECF No. 1)
will be summarily DISMISSED WITH PREJUDICE.

I.

LEGAL STANDARD

A § 2254 habeas petition is governed by the heightened standard of
review set forth in the Anti-Terrorism and Effective Death Penalty Act,
28 U.S.C. § 2241 et seq. (“AEDPA”). 28 U.S.C. § 2254. The AEDPA became
effective on April 24, 1996. The AEDPA includes a one-year period of
limitations for habeas petitions brought by prisoners challenging state
court judgments. The statute provides:
(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;
(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.
(2) The time during which a properly filed application for
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State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
“[D]istrict courts are permitted . . . to consider, sua sponte, the
timeliness of a state prisoner’s federal habeas petition.” Day v.
McDonough, 547 U.S. 198, 209 (2006) (noting that “before acting on its
own initiative, a court must accord the parties fair notice and an
opportunity to present their positions”). A habeas petition filed outside
the time period allowed under the statute is time-barred and must be
dismissed, unless the petitioner is entitled to equitable tolling. See Hall
v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (holding
a habeas petition time-barred unless petitioner was entitled to equitable
tolling because the petition was not deemed filed until five days after
AEDPA’s limitations period had presumptively expired); Wilson v.
Birkett, 192 F. Supp. 2d 763, 765 (E.D. Mich. Feb. 28, 2002) (Duggan, J.)
(“A federal court will dismiss a case where a petitioner for a writ of
habeas corpus does not comply with the one year statute of limitations.”).
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 timely filing”
of the habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks and citation omitted). The Sixth Circuit has
observed that “the doctrine of equitable tolling is used sparingly by
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federal courts.” Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010).
The burden is on a habeas petitioner to show that he is entitled to
equitable tolling of the limitations period. Id.
II.

BACKGROUND

Parish was convicted of first-degree felony murder, MCL
§ 750.316(1)(b); armed robbery, MCL § 750.529; first-degree home
invasion, MCL § 750.110a(2); unlawful imprisonment, MCL § 750.349b;
and possession of a firearm during the commission of a felony (i.e., “felony
firearm”), MCL § 750.227b, following a jury trial in the 17th Circuit Court
in Kent County, Michigan. See People v. Parish, No. 328316, 2016 WL
6106194, at *1 (Mich. Ct. App. Oct. 18, 2016).
Parish was convicted by jury on May 18, 2015. ECF No. 1. The trial
court sentenced Parish on June 23, 2015. Id. Parish was sentenced to life
imprisonment without parole for the first-degree felony murder
conviction, life imprisonment without parole for the armed robbery
conviction, 25-to-75 years’ imprisonment for the first-degree home
invasion conviction, and 10-to-50 years’ imprisonment for the unlawful
imprisonment conviction, all to run consecutively to a sentence of 2 years’
imprisonment for the felony-firearm conviction. Id.
Following his convictions and sentencing, Parish filed an appeal as
of right with the Michigan Court of Appeals challenging the prosecution’s
evidence presented at trial to support his first-degree felony murder
conviction. On October 18, 2016, the appellate court denied relief on this
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claim and affirmed his convictions. Parish, 2016 WL 6106194, at *2.
Parish alleges that he then filed an application for leave to appeal in the
Michigan Supreme Court and that the court denied his application. ECF
No. 1, PageID.3. However, Parish provides no date for the Michigan
Supreme Court order or the applicable case citation, and after conducting
its own record search—a first time on March 4, 2024, and a second time
on February 25, 2025—the Court finds no record in the Supreme Court’s
docket showing that such order exists.
Instead, the record shows that some time in 2022, Parish filed a
motion for relief from judgment under Michigan Court Rule 6.500 in the
trial court. ECF No. 1, PageID.54–58.1 Petitioner raised claims
concerning the jury verdict form, ineffective assistance of trial counsel,
and ineffective assistance of appellate counsel. Id. On October 2, 2022,
the trial court denied the motion on the basis that his claims were
procedurally barred under Michigan Court Rule 6.508(D)(3). Id. at
PageID.49. Petitioner then filed an application for leave to appeal the
trial court’s decision, which the Michigan Court of Appeals denied on
March 14, 2023. Petitioner filed an application for leave in Michigan
Supreme Court, which was denied on August 22, 2023. See People v.
Parish, 512 Mich. 910, 993 N.W.2d 849, 850 (2023).

Although the exact date which Parish filed the motion is unclear,
Petitioner dated his Brief in Support of the Motion for Relief from
Judgment as “Date: ________, 2022.” Id. at PageID.58.
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On November 5, 2023, Parish initiated the present habeas action.
ECF No. 1. The Court understands the petition raises the following
claims:
I.

The circuit court abused its discretion and erred in
denying relief where the petitioner put forth an
argument of ineffective assistance of appellate counsel
as good cause to meet the requirement of MCR
6.508(D)(3) where appellate counsel failed to raise the
defective verdict form issue on appeal of right.

II.

The circuit court abused its discretion and erred in
denying relief where the petitioner put forth an
argument of ineffective assistance of trial counsel where
counsel failed to object to the defective verdict form and
the trial court failed to make findings of fact and
conclusions of law.

III.

The circuit court abused its discretion and erred in
denying relief where the petitioner was deprived of a fair
and just verdict where the verdict form didn’t allow for
a “not guilty” verdict to the highest charge Mr. Parish
suffered actual prejudice to his Sixth Amendment right.

ECF No. 1, PageID.8.
III. DISCUSSION
A. The Petition is Time-Barred
In his latest motion, Parish concedes that his petition is untimely.
ECF No. 6, PageID.79 (“Petitioner concedes that he has missed the
statutory one-year time limit in which to file his § 2254 petition for writ
of habeas corpus.”). The Court’s record search reveals that Parish did not
file an application for leave to appeal in the Michigan Supreme Court.
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Thus, his conviction became final 56 days after the decision of the
Michigan Court of Appeals, or on December 13, 2016. See Mich. Ct. R.
7.302(C)(3) (2016); see also 28 U.S.C. § 2244(d)(1)(A) (a conviction
becomes final when the time to seek direct review expires). As a result,
the one-year limitations period to file this petition expired on December
13, 2017. See 28 U.S.C. § 2244(d). But Parish’s habeas petition was filed
on November 15, 2023, almost six years after the limitations period
expired.
Therefore, the petition is untimely. While Petitioner concedes that
his petition is untimely, he argues that he is entitled to statutory and
equitable tolling.
B. Statutory Tolling Does Not Apply
Petitioner argues that two of his claims rely on either a new rule of
constitutional law or new facts that had previously been undiscovered.
ECF No. 6, PageID.83.
1. Newly Recognized Constitutional Right
Parish asserts that two of his claims rely on a new rule of
constitutional law. Section 2244(d)(1)(C) indicates that the one-year
limitations period can run from “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.” A federal district court can
determine whether a newly recognized right has been made retroactively
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applicable to cases on collateral review. Wiegand v. United States, 380
F.3d 890, 892 (6th Cir. 2004).
Here, however, Parish does not identify which of his claims are
based on a new rule of constitutional law, and a review of his petition
shows that none of the claims for relief are based on a constitutional right
that has been newly recognized by the Supreme Court and made
retroactively applicable to habeas cases. Thus, Parish is not entitled to
use 28 U.S.C. § 2244(d)(1)(C) to delay the commencement of the
limitations period.
2. Newly Discovered Facts
Parish also asserts that two of his claims are based on newly
discovered facts. Pursuant to 28 U.S.C. § 2244(d)(1)(D), AEDPA’s one
year limitations period begins to run from the date upon which the
factual predicate for a claim “could have been discovered through the
exercise of due diligence” by the habeas petitioner. Importantly, time
starts to run when the factual predicate for a habeas petitioner’s claim
could have been discovered, not when it was “actually discovered” or when
the petitioner “recognize[d] the legal significance of the facts.” Redmond
v. Jackson, 295 F. Supp 2d 767, 771–72 (E.D. Mich. Dec. 9, 2003) (Gadola,
J.) (noting that “the running of the limitations period does not await the
collection of evidence which supports the facts”). Furthermore, newly
discovered information “that merely supports or strengthens a claim that
could have been properly stated without the discovery . . . is not a ‘factual
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predicate’ for purposes of triggering the statute of limitations under
§ 2244(d)(1)(D).” Jefferson v. United States, 730 F.3d 537, 547 (6th Cir.
2013) (quoting Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012)).
Here, Parish does not identify which of his claims are based on
newly discovered facts, which facts have been newly discovered, when
such facts could have been discovered, or why these facts could not have
been discovered sooner with due diligence. Thus, Petitioner does not meet
his burden of establishing that any of his claims are based on newly
discovered evidence which would delay the commencement of the oneyear limitations period. See Grayson v. Grayson, 185 F. Supp. 2d 747, 750
(E.D. Mich. Jan. 3, 2002) (Roberts, J.) (rejecting petitioner’s contention
that the factual predicate for his claims could not have been discovered
sooner because his argument was “unsupported and conclusory”).
B. Petitioner is Not Entitled to Equitable Tolling
Parish further argues that equitable tolling principles apply to toll
the limitations period.
1. Mental Illness
A habeas petitioner’s mental incompetence or incapacity may
provide a basis for equitable tolling of AEDPA’s statute of limitations.
Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011). But a habeas petitioner
must allege more than the “mere existence of physical or mental
ailments.” Brown v. McKee, 232 F. Supp. 2d 761, 767 (E.D. Mich. Nov. 20,
2002) (Rosen, J.). Rather, a habeas petitioner must show “that (1) he is
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mentally incompetent and (2) his mental incompetence caused his failure
to comply with AEDPA’s statute of limitations.” Ata v. Scutt, 662 F.3d at
742 (noting that “a blanket assertion of mental incompetence is
insufficient to toll the statute of limitations” and that “a causal link
between the mental condition and untimely filing is required”); see also
Robertson v. Simpson, 624 F.3d at 785 (“[T]he petitioner must
demonstrate that the incompetence affected his or her ability to file a
timely habeas petition.”).
Here, Parish argues that he is entitled to equitable tolling because
he suffers from paranoid schizophrenia with a psychotic disorder, which
requires strong medication. ECF No. 6, PageID.82. He asserts that his
mental illness prevented him from understanding court practices and
procedures, including the statute of limitations applicable to habeas
cases. Id. Parish states that he was able to initiate his post-conviction
proceedings only after enlisting assistance from the Michigan
Department of Corrections Legal Writer Program. Id.
But his argument fails for multiple reasons. First, “[m]ental illness
is not the same as mental incompetence.” Watkins v. Deangelo-Kipp, 854
F.3d 846, 852 (6th Cir. 2017). Second, Parish presents no evidence of his
mental health status during the limitations period that would suggest he
was unable to timely file his petition. To the extent he argues that his
mental illness affected his ability to understand court procedures, as
evidenced by his need for legal assistance to prepare his habeas petition,
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he presents no argument as to why he could not seek assistance earlier.
To the contrary, evidence shows he was able to pursue a collateral
challenge to his convictions in the state courts despite suffering from his
alleged mental impairment. See McSwain v. Davis, 287 F. App’x 450, 458
(6th Cir. 2008) (finding speculative petitioner’s claim that the
dissociative identity disorder she had suffered from since childhood
impacted her ability to timely file a habeas petition without any
additional facts).
2. Actual Innocence
Lastly, Parish argues that he is entitled to equitable tolling because
he is actually innocent of the crimes charged.
The one-year statute of limitations may be equitably tolled based
upon a credible showing of actual innocence. McQuiggin v. Perkins, 569
U.S. 383, 386 (2013). However, “tenable actual-innocence . . . pleas are
rare.” Id. A petitioner must show 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 v. Delo, 513 U.S. 298, 329 (1995)).
A petitioner claiming actual innocence must “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 (noting that “[b]ecause such evidence is obviously unavailable
in the vast majority of cases, claims of actual innocence are rarely
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successful”); Ross v. Berghuis, 417 F.3d 552, 556 (6th Cir. 2005) (noting
that a petitioner must prove that new reliable evidence establishes his
innocence by a more-likely-than-not standard).
Here, Parish presented no new, reliable evidence to establish that
he was actually innocent. He is therefore not entitled to equitable tolling
on this basis. See Ross v. Berghuis, 417 F.3d at 556 (finding that
petitioner was not entitled to equitable tolling based on actual evidence
because he did not provide new exculpatory evidence).
IV. CONCLUSION
For all the foregoing reasons, Parish’s motion for cause and
equitable tolling (ECF No. 6) is DENIED. Because Parish did not file his
habeas petition within the one-year statute of limitations applicable to
federal habeas actions, his Writ of Habeas Corpus (ECF No. 1) is
DENIED.
The Court further DENIES Petitioner a certificate of appealability
because reasonable jurists would not find it debatable whether the Court
was correct in determining that petitioner had filed his habeas petition
outside of the one-year limitations period. See Grayson, 185 F. Supp. 2d
at 752 (denying certificate of appealability after dismissing habeas
petition based on untimeliness). However, although reasonable jurists
would not debate this Court’s resolution of Petitioner’s claims, the issues
are not frivolous; therefore, an appeal could be taken in good faith and
Petitioner may proceed in forma pauperis on appeal. See Foster v.
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Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich. May 22, 2002) (Rosen, J.)
(noting that the standard for issuing a certificate of appealability has a
higher threshold than the standard for granting in forma pauperis
status, which only requires that the issues be arguable on the merits).
SO ORDERED.
Dated: March 10, 2025

BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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