Fuller v. Hoffner
Filing
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OPINION AND ORDER granting 9 Motion for Summary Judgment; Declining to Issue a Certificate of Appealability; and Denying Leave to Proceed in forma pauperis on Appeal. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL JAMES FULLER,
Petitioner,
CASE NO. 15-10411
v.
HONORABLE JOHN CORBETT O’MEARA
BONITA HOFFNER,
Respondent.
_____________________________/
OPINION AND ORDER
GRANTING RESPONDENT’S MOTION FOR SUMMARY
JUDGMENT AND DISMISSAL OF THE HABEAS PETITION (ECF No. 9),
DISMISSING THE HABEAS PETITION WITH PREJUDICE,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Michael James Fuller has filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s Wayne
County, Michigan convictions for first-degree, premeditated murder, Mich. Comp. Laws
§ 750.316(1)(a), and possession of a firearm during the commission of a felony (felony
firearm), Mich. Comp. Laws § 750.227b. Respondent Bonita Hoffner urges the Court in
a motion for summary judgment to dismiss the habeas petition because Petitioner failed
to comply with the statute of limitations. The Court agrees that the petition is timebarred. Accordingly, Respondent’s motion will be granted and the habeas petition will
be dismissed with prejudice.
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I. Background
Petitioner was tried in Wayne County Circuit Court on charges that he murdered
a man in Detroit after an altercation at a party. The state court summarized the
evidence at trial as follows:
The victim was a friend or associate of people who lived on the downstairs
floor of a two-residence house in Detroit. Defendant was a friend of the
person who lived upstairs and known to the people downstairs. On the
night of the shooting, a party was in progress upstairs and a somewhat
more sedate “get-together” occurred downstairs. Two of the women at the
downstairs event got into a physical altercation, resulting in enough noise
to bring many of the upstairs people downstairs. According to witnesses,
defendant was one of those people. One of the women accused the
victim—who had actually helped break up the fight—of hitting her. The
person who lived upstairs demanded that the victim hit him instead. A
witness mollified that person, but then defendant abruptly swung a punch
at the victim.
A poorly-described struggle ensued, and the downstairs owner
demanded that everyone leave, although he specifically asked the victim
to remain. Nevertheless, the victim also exited the house. One witness
went to the door and another to the front window, where they both saw
that when the victim got to the street, defendant approached out of the
crowd and pushed someone else aside. Defendant put a gun to the
victim’s head, said something unintelligible, and shot the victim once.
Defendant then walked away. Defendant presented two witnesses who
testified that he was elsewhere at the time.
People v. Fuller, No. 295930, 2011 WL 898571, at *1 (Mich. Ct. App. Mar. 15, 2011)
(unpublished).
On December 2, 2009, the jury found Petitioner guilty, as charged, of first-degree
murder and felony firearm. On December 17, 2009, the trial court sentenced Petitioner
to two years in prison for the felony firearm conviction and to a consecutive term of life
imprisonment without the possibility of parole for the murder conviction.
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Petitioner appealed his convictions on grounds that (1) there was insufficient
evidence to convict him of premeditated murder, and his conviction was against the
great weight of the evidence and (2) the trial court erred in admitting two photographs of
the gunshot injury. The Michigan Court of Appeals found no merit in Petitioner’s claims
and affirmed his convictions in an unpublished decision. See Fuller, No. 295930, 2011
WL 898571. On September 6, 2011, the Michigan Supreme Court denied leave to
appeal because it was not persuaded to review the issues. See People v. Fuller, 490
Mich. 860; 802 N.W.2d 54 (2011) (table).
On August 3, 2012, Petitioner filed a motion for relief from judgment in which he
argued that his trial and appellate attorneys were ineffective and that the prosecutor
committed misconduct during closing arguments. The state trial court denied
Petitioner’s motion in a reasoned opinion, and the Michigan Court of Appeals denied
leave to appeal for the reasons given in the trial court’s opinion. See People v. Fuller,
No. 315468 (Mich. Ct. App. Nov. 4, 2013). On July 29, 2014, the Michigan Supreme
Court denied leave to appeal for failure to establish entitlement to relief under Michigan
Court Rule 6.508(D). See People v. Fuller, 496 Mich. 863; 849 N.W.2d 364 (2013)
(table).
Finally, on January 23, 2015, Petitioner signed and dated his habeas corpus
petition, and on January 29, 2015, the Clerk of the Court filed the petition. The grounds
for relief are: (1) there was insufficient evidence to convict Petitioner of first-degree,
premeditated murder, and the verdict was against the great weight of the evidence; (2)
the trial court deprived Petitioner of due process and a fair trial by admitting two exhibits
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depicting the gunshot wound; (3) trial counsel deprived Petitioner of his right to present
a complete defense by failing to retain an expert witness to challenge the two
eyewitnesses’ identification of Petitioner; (4) appellate counsel was ineffective for failing
to investigate Petitioner’s case and raise the issues that Petitioner presented in his postconviction motion; and (5) the prosecutor committed misconduct during her closing
argument.
Respondent argues in her motion for summary judgment and dismissal of the
petition that the habeas petition is untimely. Petitioner has not replied to Respondent’s
motion.
II. Discussion
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies here
because Petitioner filed his habeas petition after AEDPA became effective in 1996.
Lindh v. Murphy, 521 U.S. 320, 336 (1997); Barker v. Yukins, 199 F.3d 867, 871 (6th
Cir. 1999). AEDPA established a one-year period of limitation for state prisoners to file
a federal petition for writ of habeas corpus. Wall v. Kholi, 562 U.S. 545, 550 (2011)
(citing 28 U.S.C. § 2244(d)(1)). The period of limitations runs from the latest of the
following four 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
action;
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(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). The limitations period is tolled while a “properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending” in state court. 28 U.S.C. § 2244(d)(2).
Petitioner is not relying on a newly recognized constitutional right or on newly
discovered facts, and he has not shown that the State created an impediment to filing a
timely habeas petition. 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” concludes for purposes of subsection 2244(d)(1)(A) 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). “Until that
time, the ‘process of direct review’ has not ‘com[e] to an end’ and ‘a presumption of
finality and legality’ cannot yet have ‘attache[d] to the conviction and sentence.’ ” Id. at
119-20 (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).
For petitioners who pursue direct review all the way to [the Supreme]
Court, the judgment becomes final at the “conclusion of direct review”—
when [the Supreme] Court affirms a conviction on the merits or denies a
petition for certiorari. For all other petitioners, 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.
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Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012)(quoting Barefoot, 463 U.S. at 887).
A petition for writ of certiorari to review a judgment entered by a state court of last resort
must be filed within ninety days after entry of the judgment. Sup. Ct. R. 13.1.
B. Application
Petitioner did not apply for a writ of certiorari in the United States Supreme Court.
Consequently, his conviction became final on December 5, 2011, ninety days after the
Michigan Supreme Court denied leave to appeal on direct review. The statute of
limitations began to run on the following day, and it ran 241 days until August 3, 2012,
when Petitioner filed his motion for relief from judgment. The statute was tolled for the
entire time that Petitioner’s post-conviction motion was pending in state court, that is,
until July 29, 2014, when the Michigan Supreme Court denied leave to appeal the trial
court’s decision on Petitioner’s motion. 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536
U.S. 214, 219-20 (2002).
The Supreme Court, however, “is not a part of a ‘State’s post-conviction
procedures.’ ” Lawrence v. Florida, 549 U.S. 327, 332 (2007). “The application for
state postconviction review is therefore not ‘pending’ after the state court’s
postconviction review is complete, and § 2244(d)(2) does not toll the 1–year limitations
period during the pendency of a petition for certiorari.” Id. This means that the
limitations period resumed running in Petitioner’s case on July 30, 2014, the day after
the Michigan Supreme Court denied leave to appeal on state collateral review. The
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limitations period stopped running 177 days later on January 23, 2015, when Petitioner
signed and dated his habeas petition.1
The limitations period ran a total of 418 days: 241 days after Petitioner’s
conviction became final and before he filed his post-conviction motion; and 177 days
between the conclusion of state collateral proceedings and the filing of the habeas
petition. Because the limitations period ran more than one year, the habeas petition is
time-barred, absent equitable tolling of the limitations period or a credible showing of
actual innocence.
C. Equitable Tolling
“The doctrine of equitable tolling allows courts to toll a statute of limitations when
‘a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.’ ” Robertson v. Simpson, 624 F.3d 781,
783 (6th Cir. 2010) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 560–61 (6th Cir. 2000)). A petitioner is entitled to equitable tolling of
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“Under the prison mailbox rule, a habeas petition is considered filed when the prisoner
provides the petition to prison officials for filing.” Keeling v. Warden, Lebanon Corr.
Inst., 673 F.3d 452, 456 (6th Cir. 2012) (citing Cook v. Stegall, 295 F.3d 517, 521 (6th
Cir. 2002) (citing Houston v. Lack, 487 U.S. 266, 273 (1988)).
Cases expand the understanding of this handing-over rule with an
assumption that, absent contrary evidence, a prisoner does so on the date
he or she signed the complaint. See, e.g., Goins v. Saunders, 206 Fed.
Appx. 497, 498 n. 1 (6th Cir. 2006) (per curiam) (“[W]e treat the petition as
filed on the date [the prisoner] signed it.”); Bomar v. Bass, 76 Fed. Appx.
62, 63 (6th Cir. 2003) (order); Towns v. United States, 190 F.3d 468, 469
(6th Cir. 1999) (order).
Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008). The Court therefore deems the
habeas petition filed on January 23, 2015, when Petitioner placed the petition in the
prison mailing system. See Pet. for Writ of Habeas Corpus, page 14.
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the habeas statute of limitations “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 v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner has not argued in favor of equitably tolling, nor even acknowledged
that the limitations period expired before he filed his habeas petition, and there is no
reason to believe that some extraordinary circumstance prevented him from filing a
timely habeas petition. The Court therefore declines to equitably toll the limitations
period.
D. Actual Innocence
Actual innocence, if proved, serves as a gateway through which habeas
petitioners may pass when the impediment to consideration of the merits of their
constitutional claims is expiration of the statute of limitations. McQuiggin v. Perkins, 133
S. Ct. 1924, 1928 (2013). Nevertheless,
tenable actual-innocence gateway pleas are rare: “[A] petitioner does not
meet the threshold requirement unless he persuades the district court that,
in light of the new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.” Schlup [v. Delo, 513 U.S.
298, 329 (1995)]; see House [v. Bell, 547 U.S. 518, 538 (2006)]
(emphasizing that the Schlup standard is “demanding” and seldom met).
Id.
Although Petitioner argues that the evidence at trial was insufficient to sustain his
murder conviction, the Michigan Court of Appeals disagreed, noting that “[t]wo
eyewitnesses, both of whom were familiar with defendant, identified defendant as the
person who put a gun to the victim’s head and shot the victim.” Fuller, No. 295930,
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2011 WL 898571, at *2. The Court of Appeals went on to say that, even though
Petitioner correctly identified some discrepancies in the eyewitnesses’ versions of the
incident, none of those discrepancies seriously undermined the witnesses’ credibility.
The Court of Appeals concluded that Petitioner’s convictions were supported by the
evidence, as there was sufficient evidence that he was the shooter and that he
premeditated and deliberated the murder.
The state appellate court’s decision was objectively reasonable, and Petitioner
has not presented this Court with any new evidence of actual innocence. Therefore,
AEDPA’s time limitations apply here.
III. Conclusion
The limitations period in this case ran more than one year before Petitioner filed
his habeas corpus petition, and application of the doctrine of equitable tolling is not
appropriate under the circumstances present here. Petitioner also has not made a
credible showing of actual innocence. Accordingly, Respondent’s motion for summary
judgment and dismissal of the habeas petition (ECF No. 9) is granted, and the habeas
petition (ECF No. 1) is dismissed as untimely.
IV. Regarding a Certificate of Appealability and the Appellate Filing Fee
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the
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applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When, as here,
the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition 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.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner’s habeas petition is clearly time-barred. Consequently, reasonable
jurists would not find the Court’s procedural ruling debatable. Reasonable jurists also
would not find it debatable whether the petition states a valid claim of the denial of a
constitutional right. The Court therefore declines to issue a certificate of appealability.
The Court denies leave to appeal in forma pauperis because an appeal could not be
taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a)(3)(A).
Date: October 29, 2015
s/John Corbett O’Meara
United States District Judge
I hereby certify that on October 29, 2015, a copy of this opinion and order was
served upon the parties of record using the ECF system, and/or by first-class U.S. mail.
s/William Barkholz
Case Manager
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