Kendrick v. Rapelje
OPINION and ORDER Granting 14 MOTION for Summary Judgment and Dismissal of Petition for Writ of Habeas Corpus; Dismissing 1 , 2 , and 9 Petition for Writ of Habeas Corpus; and Granting a Certificate of Appealability. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 5:10-cv-14418
HONORABLE JOHN CORBETT O’MEARA
OPINION AND ORDER
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
AND DISMISSING THIS CASE WITH PREJUDICE, BUT
GRANTING A CERTIFICATE OF APPEALABILITY
Pending before the Court are petitioner Ryan Kendrick’s habeas corpus petition
and respondent Lloyd Rapelje’s Motion for Summary Judgment and Dismissal of the
habeas petition. Respondent argues that Petitioner’s claims are barred from
substantive review by Petitioner’s failure to comply with the one-year statute of
limitations. Petitioner concedes that his habeas petition is time-barred. He urges the
Court to equitably toll the limitation period on the basis of his former attorney’s inactions
The Court has determined that the habeas petition is untimely even if the Court
were to toll the limitation period for the time that Petitioner’s former attorney neglected
Petitioner’s case. Accordingly, Respondent’s motion for summary judgment and
dismissal of the habeas petition is granted. A procedural history and discussion follow.
A. The Conviction, Sentence, and Direct Appeal
Petitioner was charged in Genesee County, Michigan with (1) conspiracy to
commit assault with intent to do great bodily harm less than murder, (2) assault with
intent to do great bodily harm less than murder, and (3) first-degree murder. The
charges arose from an assault and subsequent beating of a homeless man in Burton
Township, Michigan on July 20, 1999. Petitioner was tried with two co-defendants in
Genesee County Circuit Court. On June 29, 2000, Petitioner’s jury found him guilty, as
charged, of: conspiracy to commit assault with intent to do great bodily harm less than
murder, Mich. Comp. Laws §§ 750.157a and 750.84; assault with intent to do great
bodily harm less than murder, Mich. Comp. Laws § 750.84; and first-degree
(premeditated) murder, Mich. Comp. Laws § 750.316(1)(a). The trial court sentenced
Petitioner to life imprisonment for the murder and to concurrent terms of five to ten
years for the assault and conspiracy.
In an appeal of right, Petitioner argued through counsel that (1) the trial court
erred by permitting the prosecutor to admit in evidence Petitioner’s statement to the
police, (2) the State’s destruction of the crime scene without notice to defense counsel
violated Petitioner’s right to due process, and (3) the trial court violated his right to due
process by denying his motion to sever the murder charge from the assault charge.
The Michigan Court of Appeals rejected each of these claims and affirmed Petitioner’s
convictions in an unpublished decision. See People v. Kendrick, No. 229086 (Mich. Ct.
App. Feb. 11, 2003). Petitioner raised the same issues in the Michigan Supreme Court,
which denied leave to appeal on July 28, 2003, because it was not persuaded to review
See People v. Kendrick, 469 Mich. 865; 666 N.W.2d 672 (2003) (table).
Petitioner did not file a petition for the writ of certiorari in the United States Supreme
B. The State Collateral Appeal
In December of 2003, Petitioner’s grandmother, Sandra Kendrick, retained
attorney Jeffrey Clothier to pursue state and federal post-conviction remedies for
Petitioner. On or about August 12, 2004, Clothier filed a motion for relief from judgment
in the trial court.1 The motion alleged that Petitioner was deprived of effective
assistance of trial and appellate counsel and that he was denied his right to counsel
when the trial court declined to adjourn the trial following substitution of trial counsel.
On April 6, 2005, the trial court denied Petitioner’s motion. Clothier then filed an
application for leave to appeal in the Michigan Court of Appeals. On May 10, 2005, the
Court of Appeals notified Clothier that his application was defective because it did not
conform to Michigan Court Rule 7. 212(C) and because another set of transcripts was
needed. The Court of Appeals afforded Clothier twenty-one days to cure the defects in
Clothier did not cure the defects, and on June 27, 2005, the Michigan Court of
Appeals dismissed his application without prejudice for failure to pursue the case in
conformity with the Michigan Court Rules. See People v. Kendrick, No. 262298 (Mich.
Ct. App. June 27, 2005) (unpublished). Clothier did not seek reinstatement in the
Michigan Court of Appeals, and he did not appeal to the Michigan Supreme Court. Nor
The motion was signed on August 10, 2004, but Petitioner alleges that it was
filed on August 12, 2004.
did he file a federal habeas corpus petition in Petitioner’s behalf.
C. The Ensuing Years, the Habeas Corpus Petition, and the Responsive Pleading
Clothier did not immediately inform Petitioner of the dismissal of his appeal, and
in the years that followed the dismissal, Petitioner and Ms. Kendrick made numerous
attempts to communicate with Clothier and to learn the status of Petitioner’s case. In
September of 2008, Ms. Kendrick filed a complaint against Clothier with the Michigan
Attorney Grievance Commission. In 2009, while the complaint was still pending, Ms.
Kendrick consulted attorney John Lazar, who informed her that the deadline for filing a
habeas corpus petition had expired. The Attorney Grievance Commission subsequently
admonished Clothier, and in April of 2010, Ms. Kendrick hired the firm Leonard Kruse,
P.C., to file a state court complaint against Clothier. In June of 2010 or shortly
thereafter, Ms. Kendrick retained the same firm to draft a federal habeas corpus petition
in Petitioner’s behalf. Counsel for Petitioner states that, due to the complexity of the
case and the length of Petitioner’s trial, she was unable to file the petition for several
The Clerk of this Court received the petition and filed it on November 4, 2010.
Petitioner argues in his supporting brief that: (1) the trial court erred by allowing his
statement to the police to be admitted in evidence; (2) his right to due process was
violated by the destruction of the crime scene before defense counsel or an investigator
could examine it; (3) trial counsel was ineffective; and (4) his right to effective
assistance of counsel was violated by the trial court’s refusal to afford substitute counsel
adequate time to prepare for trial.
Respondent argues in his motion for summary judgment and dismissal that the
habeas petition is barred by the one-year statute of limitations for habeas petitions.
Petitioner replies that, although the petition was not timely filed, the Court should
equitably toll the limitation period due to attorney Clothier’s malfeasance.
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established
a one-year period of limitation for state prisoners to file their federal habeas corpus
petitions. Wall v. Kholi, __ U.S. __, __, 131 S. Ct. 1278, 1283 (2011) (citing 28 U.S.C. §
2244(d)(1)). The period of limitation runs from the latest of four specified dates:
(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
(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
28 U.S.C. § 2244(d)(1)(A)-(D). The limitation period is tolled “during the pendency of a
‘properly filed application for State post-conviction or other collateral review with respect
to the pertinent judgment or claim.’” Kholi, 131 S. Ct. at 1283 (quoting 28 U.S.C. §
Petitioner is not relying on a new and retroactive constitutional right or on newly
discovered facts, and he is not suggesting that an impediment created by state action
prevented him from filing his habeas petition earlier. Cf. 28 U.S.C. §§ 2244(d)(1)(B-D).
Consequently, the statute of limitations began to run when Petitioner’s convictions
“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 and to
the United States Supreme Court has been exhausted. Jimenez v. Quarterman, 555
U.S. 113, 119 (2009).
A petition for writ of certiorari to review a judgment entered by a state’s highest
court must be filed in the United States Supreme Court within ninety days after entry of
the judgment. Sup. Ct. R. 13.1. For petitioners who do not pursue direct review to the
United States Supreme Court, “the judgment becomes final at the ‘expiration of the time
for seeking such review’ – when the time for pursuing direct review in [the Supreme]
Court, or in state court, expires.” Gonzalez v. Thaler, __ U.S. __, __, 132 S. Ct. 641,
Petitioner appealed to the Michigan Court of Appeals and to the Michigan
Supreme Court on direct review of his convictions. He did not apply for a writ of
certiorari in the United States Supreme Court after the Michigan Supreme Court denied
leave to appeal on July 28, 2003. Therefore, his convictions became final ninety days
later on October 26, 2003, when the deadline expired for seeking a writ of certiorari in
the United States Supreme Court. Id. at 653-43.
The one-year period of limitation began to run on October 27, 2003. It ran for
290 days, that is, until August 12, 2004, when attorney Clothier filed the motion for relief
from judgment in the trial court. The limitation period was tolled during the entire time
that the motion was under consideration in state court, that is, from August 12, 2004, to
June 27, 2005, when the Michigan Court of Appeals dismissed the application for leave
to appeal as defective. 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-20
(2002). The parties agree that the statute of limitations resumed running on June 28,
2005, and that the limitation period expired roughly seventy-five days later on or about
September 10, 2005. Petitioner filed his habeas corpus petition more than five years
later on November 4, 2010. The petition is untimely, absent equitable tolling.
C. Equitable Tolling
1. Clearly Established Federal Law
The statute of limitations in habeas cases is not jurisdictional. Day v.
McDonough, 547 U.S. 198, 205 (2006). It “is subject to equitable tolling in appropriate
cases.” Holland v. Florida, __ U.S. __, __, 130 S. Ct. 2549, 2560 (2010). But “a
‘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.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)); see also Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir.
2011) (adopting Holland’s two-part test for determining whether a habeas petitioner is
entitled to equitable tolling). It is not necessary to show “maximum feasible diligence“ to
satisfy the first prong of this test. Instead, “[t]he diligence required for equitable tolling
purposes is reasonable diligence . . . .” Holland, 130 S. Ct. at 2565 (quotation marks and
To satisfy the second prong of the Holland test, a habeas petitioner must
demonstrate that extraordinary circumstances prevented him from filing a timely petition.
Petitioner claims that attorney Clothier’s failure to conduct basic legal research and his
misrepresentations about the law and status of Petitioner’s case satisfies the
The Supreme Court stated in Coleman v. Thompson, 501 U.S. 722, 752 (1991),
[t]here is no constitutional right to an attorney in state post-conviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.
Ed. 2d 539 (1987); Murray v. .Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106
L. Ed. 2d 1 (1989) (applying the rule to capital cases). Consequently, a
petitioner cannot claim constitutionally ineffective assistance of counsel in
such proceedings. See Wainwright v. Torna, 455 U.S. 586, 102 S. Ct.
1300, 71 L. Ed. 2d 475 (1982) (where there is no constitutional right to
counsel there can be no deprivation of effective assistance).
In Holland, however, the Supreme Court stated that, while a garden variety claim
of attorney negligence does not warrant equitable tolling, “far more serious instances of
attorney misconduct” may constitute extraordinary circumstances justifying equitable
tolling of the habeas statute of limitations. Holland, 130 S. Ct. at 2564; see also
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010) (explaining that “egregious
cases involving an attorney’s failure to satisfy professional standards of care may
constitute extraordinary circumstances” warranting equitable tolling). And in a case
decided earlier this year, the Supreme Court concluded that post-conviction attorneys
who abandoned the petitioner’s case without notice, substitution of counsel, or leave of
court were “cause” for the petitioner’s untimely appeal in state court. See Maples v.
Thomas, __ U.S. __, 132 S. Ct. 912 (2012).
The Supreme Court stated in Maples that the requisite “cause” for the petitioner’s
state procedural default of failing to file a timely appeal in state court had been shown
because the petitioner was abandoned by counsel during critical post-conviction
proceedings and because he lacked notice of the need to protect himself by acting pro
se. The Supreme Court explained that “[n]egligence on the part of a prisoner’s
postconviction attorney does not qualify as ‘cause,’” for a failure to comply with a state
procedural rule, but that “[a] markedly different situation is presented . . . when an
attorney abandons his client without notice, and thereby occasions the default.” Id. at
922. The Court went on to say that, “a client cannot be charged with the acts or
omissions of an attorney who has abandoned him. Nor can a client be faulted for failing
to act on his own behalf when he lacks reason to believe his attorneys of record, in fact,
are not representing him.” Id. at 924.2
2. Attorney Clothier’s Actions and Inactions
Post-conviction attorney Jeffrey Clothier initially pursued Petitioner’s case in a
timely manner. After Petitioner’s convictions became final and more than two months
before the federal statute of limitations expired, he filed a motion for relief from judgment
in Petitioner’s behalf. There was no time limit under state law for filing the postconviction motion, and the filing of the motion tolled the federal statute of limitations.
Clothier’s subsequent application for leave to appeal the trial court’s denial of the motion
Although Holland “involved tolling of a federal time bar, while Coleman v.
Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed.2d 640 (1991), concerned cause
for excusing a procedural default in state court,” the Supreme Court saw “no reason . . .
why the distinction between attorney negligence and attorney abandonment should not
hold in both contexts.” Maples, 132 S. Ct. at 923 n.7.
for relief from judgment also was timely.
Clothier began to neglect Petitioner’s case when he failed to cure the defects in
his application for leave to appeal. And, after the Court of Appeals dismissed Petitioner’s
case without prejudice on June 27, 2005, Clothier did not attempt to have the case
reinstated. Nor did he appeal to the Michigan Supreme Court or file a federal habeas
In addition to these omissions, Clothier failed to give Petitioner timely and
accurate information about his appellate case. He waited until July 14, 2006 (over a year
after the dismissal of the appeal) to inform Petitioner that his case had been dismissed.
And he did not admit that the appeal had been dismissed for failure to conform to the
Michigan Court Rules; instead, he stated that the Court of Appeals had denied the
application and that he was in the process of re-filing an application in the Court of
Appeals or of applying to the Michigan Supreme Court.
Petitioner responded to Clothier’s letter on August 8, 2006, and expressed
surprise that the Court of Appeals had entered an order in his case. Although Petitioner
asked Clothier to respond to his letter, he received no response. Petitioner wrote to
Clothier again in January of 2007 and asked Clothier whether he had finished his brief
and whether there was a deadline for filing the brief in the Michigan Supreme Court. On
January 22, 2007, Clothier responded to Petitioner by letter, stating that he would try to
complete the brief that week. By then, it was too late to file a brief in either the Michigan
Court of Appeals or in the Michigan Supreme Court.3
At the time, a defendant had one year in which to appeal the denial of a motion
for relief from judgment in the Michigan Court of Appeals, Mich. Ct. R. 6.509(A), and
Clothier’s last letter to Petitioner is dated September 26, 2007. In that letter, he
stated that he had sent a rough draft of his appellate brief to Petitioner and to Sandra
Kendrick so that they could review the brief before he submitted it to the Court of
Appeals. Clothier never did file an appellate brief in the Michigan Court of Appeals or in
the Michigan Supreme Court, and he did not pursue any federal remedies in Petitioner’s
behalf, despite calls and letters from Petitioner and Sandra Kendrick during 2007 and
By 2008, the attorney-client situation had deteriorated to the point that Sandra
Kendrick complained to the Michigan Attorney Grievance Commission about Clothier. In
Clothier’s response to the complaint, he admitted that there had been a lack of progress
at times, and that Petitioner’s appeal “went on the back burner” after the Michigan Court
of Appeals dismissed his appeal for failure to provide transcripts. On November 18,
2009, the Commission admonished Clothier because he undertook a criminal appeal
even though he was not competent to do so. The Commission also determined that
Clothier neglected Petitioner’s case and that he failed to accurately communicate with
Petitioner and Sandra Kendrick regarding Petitioner’s criminal appeal. The Commission
stated that Clothier had violated several rules of professional conduct.
The facts, as summarized above, indicate that Clothier committed serious
attorney misconduct. He neglected to cure a defect in his application for leave to appeal,
and he apparently performed no legal research to determine the applicable deadlines in
fifty-six days to appeal to the Michigan Supreme Court from a decision of the Michigan
Court of Appeals, Mich. Ct. R. 7.302(C)(2).
state and federal court. He also failed to honestly and promptly communicate with
Petitioner regarding the status of his case, and he violated the rules of professional
conduct. His actions and inactions can be deemed “extraordinary” and sufficiently
egregious to equitably toll the limitation period for at least some of the time. Cf. United
States v. Martin, 408 F.3d 1089, 1094-95 (8th Cir. 2005); Baldayaque v. United States,
338 F.3d 145, 152-53 (2d Cir. 2003). In fact, Clothier admitted during a deposition taken
in a state case on October 26, 2011, that he committed professional negligence in
Petitioner’s case and that he had not been competent. He also admitted that his
representation of Petitioner fell below the standard of care for a competent attorney and
amounted to ineffective assistance of counsel. See Petitioner’s supplemental brief [dkt.
#17], ex. A.
This does not mean that Petitioner’s late filing is excused. It merely means that
Clothier’s neglect of Petitioner’s case was cause for some of the delay in filing the
habeas petition. The Court believes for the following reasons that the habeas petition is
time-barred even if the Court tolled the limitation period for the time during which Clothier
First, the period of limitation ran for more than nine months after Petitioner’s
convictions became final on October 26, 2003, and before Clothier filed Petitioner’s
motion for relief from judgment on August 12, 2004. There was no time limit for filing the
motion, and Clothier’s subsequent application for leave to appeal the trial court’s denial of
the motion on April 27, 2005, was timely. Furthermore, the statute of limitations was
tolled while Petitioner’s post-conviction motion was under review in state court. 28 U.S.C.
§ 2244(d)(2); Saffold, 536 U.S. at 219-20. Consequently, Clothier’s representation of
Petitioner up to June 27, 2005, did not amount to egregious attorney misconduct
warranting equitable tolling of the limitation period. As of June 27, 2005, Clothier still had
about two and a half months in which he could have filed a habeas corpus petition in
Second, Clothier was not responsible for the entire five-year delay that followed the
dismissal of Petitioner’s post-collateral appeal on June 27, 2005. Petitioner alleges that
Clothier returned his case file to him in the spring of 2009, and by late April of 2009,
Sandra Kendrick had consulted attorney John Lazar, who informed her that the federal
statute of limitations had expired. Unlike the habeas petitioner in Holland, Petitioner did
not immediately file a pro se habeas corpus petition in federal court.
Petitioner also did not file a federal habeas corpus petition in April of 2010, when
Ms. Kendrick hired Leonard Kruse, P.C., to file a lawsuit against Clothier. Nor did
Petitioner file a habeas petition shortly after June 14, 2010, when he retained Leonard
Kruse, P.C., for the specific purpose of filing his habeas corpus petition. Petitioner waited
until November 4, 2010, to file the habeas petition. This was a year and a half after
Clothier apparently stopped representing Petitioner and other attorneys began to assist
Petitioner claims that was not aware of the doctrine of equitable tolling until June
14, 2010, when the Supreme Court issued its decision in Holland. Petitioner’s ignorance
of the law, however, “is not sufficient to warrant equitable tolling.” Ata v. Scutt, 662 F.3d
736, 743 n. 7 (6th Cir. 2011) (quoting Griffin v. Rogers, 399 F.3d 626, 637 (6th Cir. 2005)
(quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)). Moreover, the United States
Court of Appeals for the Sixth Circuit determined as early as 2003 that the statute of
limitations for state prisoners is subject to equitable tolling. See McClendon v. Sherman,
329 F.3d 490, 492 (6th Cir. 2003).
To summarize, the statute of limitations ran for more than one year even if the
limitation period were tolled for Clothier’s alleged malfeasance. The limitation period ran
from the date that Petitioner’s convictions became final (October 27, 2003) to the date
that Clothier filed the motion for relief from judgment (August 12, 2004). This period of
time was about nine a half months. The limitation period also ran from April of 2009 when
Petitioner acquired the record and apparently retained other counsel until November 4,
2010, when Petitioner filed his habeas petition. This block of time was about a year and a
half. Consequently, even if the Court tolled the limitation period from June 27, 2005,
when Clothier admittedly “dropped the ball” to the spring of 2009 when Clothier released
the file and Petitioner acquired new counsel, the limitation period ran for more than one
The same conclusion is true if the Court tolled the limitation period from June 27,
2005, until mid-June or early July of 2010 when the Supreme Court decided Holland and
Petitioner allegedly retained Leonard Kruse, P.C., to file his habeas petition. Under that
scenario, the limitation period ran thirteen and a half to fourteen months: nine and a half
months before Clothier filed the motion for relief from judgment and four to four and a half
months after Holland was decided and Petitioner retained his current attorney
Petitioner filed his habeas petition years after his convictions became final, and
even if the Court equitably tolled the limitation period for the time during which his former
attorney neglected his case, the limitation period ran more than one year. Accordingly,
Respondent’s motion for summary judgment and dismissal of the habeas petition [dkt.
#14] is GRANTED, and the habeas petition [dkt. #1, 2, and 9] is DISMISSED with
prejudice for failure to comply with the one-year statute of limitations. The Court
nevertheless GRANTS a certificate of appealability because reasonable jurists could
debate whether the Court’s procedural ruling is correct and whether the petition states a
valid claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484
s/John Corbett O’Meara
United States District Judge
Date: February 21, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of
record on this date, February 21, 2012, using the ECF system.
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