Watt v. Mackie

Filing 6

OPINION and ORDER Summarily Dismissing 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, Denying Permission to Proceed on Appeal In Forma Pauperis, and Rendering Moot Petitioner's 4 Motion for Resolution. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY WATT,
Petitioner,

Case No. 4:15-cv-14304
Honorable Linda V. Parker

v.
THOMAS MACKIE,
Respondent.
_______________________________________/

OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS [ECF NO. 1], DENYING CERTIFICATE OF
APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON
APPEAL IN FORMA PAUPERIS, AND RENDERING MOOT
PETITIONER’S MOTION FOR RESOLUTION [ECF NO. 4]
This is a habeas case brought by a state prisoner pursuant to 28 U.S.C. § 2254.
On June 14, 1995, Petitioner Timothy Watt was convicted in the Recorder’s Court for
the City of Detroit of second-degree murder. The petition alleges that Petitioner was
denied the effective assistance of counsel when his trial attorney, his cousin Coral
Watt, failed to perfect his direct appeal after telling him she would do so.
The petition addresses its timeliness under 28 U.S.C. § 2244(d). Petitioner
asserts that the petition should be deemed timely filed because “he was denied
constitutionally effective assistance of counsel on his appeal of right. Because his trial
counsel (Ms. Watt), promised him that she would represent him on his appeal of

right.” ECF No. 1 at. Pg. ID 18. For the reasons stated below, the Court nevertheless
finds that the habeas petition was untimely filed, and Petitioner has not demonstrated
entitlement to equitable tolling. The Court will therefore summarily dismiss the
petition. The Court will also deny Petitioner a certificate of appealability and deny
permission to appeal in forma pauperis.
I. Background
According to the allegations in the petition, on June 14, 1995, Petitioner was
convicted of second-degree murder after a jury trial in the Recorder’s Court for the
City of Detroit.1 He was sentenced to life imprisonment on June 29, 1995. Petitioner
claims that he was represented by his cousin, Coral Watt, at trial. He asserts that Ms.
Watt told him after sentencing that she would represent him on appeal, and that she
would file the necessary paperwork. The petition claims that eight or nine months
later, he learned that there was a dispute in the family regarding Coral Watt’s
representation of Petitioner at trial, and she did not file an appeal. ECF No. 1 at Pg.
ID 38.
On May 10, 1996, Petitioner filed a motion for appointment of counsel. On June

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The dates of the various court actions alleged in the petition were confirmed
by Michigan’s One Court of Justice website, and the trial court’s website. The
Court may take judicial notice of the records contained in these websites. Ward v.
Wolfenbarger, 323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004).
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25, 1996, the trial court appointed counsel. On August 20, 1997, counsel filed a
motion for relief from judgment in the trial court, asserting that:1) Petitioner was
denied the effective assistance of counsel at trial because counsel failed to object to
prosecutorial misconduct, 2) the trial court erroneously instructed the jury regarding
second-degree murder, and 3) there was insufficient evidence to support Petitioner’s
conviction.
On September 29, 1997, the trial court denied the motion for relief from
judgment. Petitioner filed an application for leave to appeal in the Michigan Court of
Appeals, but it was dismissed on July 10, 1998, because it attempted to appeal directly
Petitioner’s conviction instead of the order denying his motion for relief from
judgment. People v. Watt, No. 210463 (Mich. Ct. App. July 10, 1998). The order
stated that the dismissal was without prejudice to Petitioner filing a timely application
for leave to appeal from the order denying the motion for relief from judgment. No
such application was filed, nor was any relief sought in the Michigan Supreme Court.
Instead, Petitioner waited until December 1, 2015, to again seek review of his
conviction by filing the present petition for a writ of habeas corpus.
II. Standard of Review
Upon the filing of a habeas corpus petition, the Court must promptly examine
the petition to determine “[i]f it plainly appears from the petition and any attached
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exhibits that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing
Section 2254 Cases. If the Court determines that the petitioner is not entitled to relief,
the Court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856
(1994) (“Federal courts are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face”). A preliminary question in a habeas case
brought by a state prisoner is whether the petitioner complied with the one-year statute
of limitations. “[D]istrict courts are permitted . . . to consider sua sponte, the
timeliness of a state prisoner’s habeas petition.” Day v. McDonough, 547 U.S. 198,
209 (2006). Such consideration is appropriate here because Petitioner raises the issue
of the statute of limitations himself in the petition and sets forth his argument as to
why the petition should be considered timely filed.
III. Discussion
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
one-year statute of limitations applies to an application for writ of habeas corpus by
a person in custody pursuant to a judgment of a state court. The one-year limitations
period runs 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
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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.
28 U.S.C. § 2244(d)(1).
Absent equitable tolling, a petition for writ of habeas corpus must be dismissed
where it has not been filed before the limitations period expires. See 28 U.S.C. §
2244(d)(1); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004).
The statute of limitations began to run in this case when Petitioner’s conviction
“became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review,” for purposes of
subsection 2244(d)(1)(A), concludes when the availability of direct appeal to the state
courts has been exhausted. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The
time for direct review of Petitioner’s conviction expired eighteen months after he was
sentenced, when the time for filing a delayed application for leave to appeal in the
Michigan Court of Appeals ended. MICH. CT. R. 7.205(F) (1995) (period shortened
to one year by amendment made effective November 1, 1995). Accordingly, the
limitations period began to run on December 29, 1996, some eight months after the
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enactment of AEDPA.
The limitations period stopped running and started tolling under § 2244(d)(2)
on August 20, 1997, when Petitioner filed his motion for relief from judgment. The
motion for relief from judgment was denied on September 29, 1997. After that point,
Petitioner never had a properly filed petition for post-conviction review pending in the
state courts, and so the limitations period did not continue to toll beyond that date.
Petitioner then waited over eighteen years until he commenced the present action by
signing his habeas petition and handing it over to corrections officials for mailing.
Accordingly, the petition was filed nearly two decades late, and is subject to
dismissal unless Petitioner demonstrates grounds for equitable tolling. Holland v.
Florida, 561 U.S. 631, 649 (2010). A petitioner is entitled to equitable tolling 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.” Id.
Equitable tolling is used “sparingly” by the federal courts. Robertson v. Simpson, 624
F.3d 781, 784 (6th Cir. 2010). The party seeking equitable tolling bears the burden of
proving that he is entitled to it. Id. “Absent compelling equitable considerations, a
court should not extend limitations by even a single day.” Graham-Humphreys v.
Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000) (citation
omitted).
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Petitioner asserts that the blame for his failure to seek timely review of his
conviction lies with his trial attorney who failed to file a direct appeal from his
conviction though she told him she would. This argument misses the mark. Petitioner
admits that he discovered his trial attorney’s failure to file an appeal eight or nine
months after his sentencing. He then took action by filing a request for the
appointment of counsel, he was appointed counsel, and then his counsel filed a motion
for relief from judgment. That motion was denied and the subsequent appeal
dismissed. All this happened nearly two decades ago. Petitioner offers no explanation
whatsoever as to why he waited so long after his state collateral appeal was dismissed
to file the present petition. Petitioner’s years of inaction have nothing to do with his
trial attorney’s failings and everything to do with his own failure to diligently pursue
his rights. He does not present the sort of extraordinary circumstances that excuse
such a lengthy delay.
The most Petitioner can say is that as a pro se litigant who required the
assistance of a fellow inmate to prepare this petition, he was unaware of the time
requirements. But the fact that Petitioner is untrained in the law, may have been
proceeding without a lawyer for a time, or may have been unaware of the statute of
limitations does not warrant tolling. See Allen v. Yukins, 366 F.3d 396, 403 (6th Cir.
2004) (ignorance of the law does not justify tolling); Holloway v. Jones, 166 F. Supp.
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2d 1185, 1189 (E.D. Mich. 2001) (lack of professional legal assistance does not justify
tolling); Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002); cf. Johnson
v. United States, 544 U.S. 295, 311 (2005) ("[W]e have never accepted pro se
representation alone or procedural ignorance as an excuse for prolonged inattention
when a statute's clear policy calls for promptness."). Thus, Petitioner is not entitled to
equitable tolling.
Accordingly, the Court finds that the petition was filed after expiration of the
statute of limitations, and Petitioner has failed to demonstrate entitlement to equitable
tolling. The case will therefore be dismissed.
IV. Conclusion
Before Petitioner may appeal, 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 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. See Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). When a 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
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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. Having
undertaken the requisite review, the court concludes that jurists of reason could not
find the court’s procedural ruling that the petition is untimely debatable. The Court
will also deny Petitioner permission to proceed on appeal in forma pauperis because
any appeal would be frivolous.
V. Order
For the foregoing reasons, IT IS ORDERED that the petition for a writ of
habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability and permission
to proceed on appeal in forma pauperis is DENIED.
IT IS FURTHER ORDERED that Petitioner’s motion for resolution is
RENDERED MOOT.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 3, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
and/or pro se parties on this date, May 3, 2016, by electronic and/or U.S. First Class mail.
S/ Richard Loury
Case Manager

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