Garland v. MacLaren
Filing
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MEMORANDUM OPINION and ORDER Granting Respondent's 7 MOTION for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Edward Garland,
Petitioner,
Case No. 5:15-cv-11116
Hon. Judith E. Levy
Mag. Judge David R. Grand
Duncan MacLaren,
Respondent.
___________________________/
OPINION AND ORDER GRANTING RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT [7]
Petitioner Edward Garland, confined at the Kinross Correctional
Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
In his pro se application,
petitioner challenges his conviction and sentence for first-degree home
invasion, M.C.L. § 750.110a(2); two counts of first-degree criminal
sexual conduct, M.C.L. § 750.520b(1)(c); and two counts of third-degree
criminal sexual conduct, M.C.L. § 750.520d(1)(c).
Respondent filed a motion for summary judgment on the ground
that the petition was not timely filed in accordance with the statute of
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limitations contained in the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2244 (d)(1). (Dkt. 7.) Petitioner has not
filed a response to the motion.
For the reasons stated below, the respondent’s motion for
summary judgment is granted and the petition is dismissed as timebarred under AEDPA.
The Court declines to issue petitioner a
certificate of appealability and denies petitioner leave to appeal in
forma pauperis.
I. BACKGROUND
On October 25, 2007, petitioner was found guilty following a jury
trial in the Livingston County Circuit Court. (Dkt. 7-3.) On December
20, 2007, he was sentenced to a minimum of fifteen years in prison, and
on January 9, 2008, the final judgment was entered in his case. (Id.)
On August 18, 2009, the Michigan Court of Appeals affirmed his
conviction, (Dkt. 8-15), and on June 23, 2010, the Michigan Supreme
Court denied petitioner’s leave to appeal. People v. Garland, 486 Mich.
996 (2010).
Petitioner did not seek a writ of certiorari from the
Supreme Court.
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Over three years later, on December 9, 2013, petitioner filed a
post-conviction motion for relief from judgment with the state trial
court, pursuant to M.C.R. 6.500 et seq. (Dkt. 8-17.) On January 28,
2014, the Honorable David J. Reader, Circuit Judge for Livingston
County, denied plaintiff’s motion for relief. (Dkt. 8-18.) On June 27,
2014, the Michigan Court of Appeals denied a rehearing on the grounds
that petitioner had failed to meet the burden for establishing relief
under M.C.R. 6.508(D).
(Dkt. 8-19.)
And on February 3, 2015, the
Michigan Supreme Court denied petitioner’s application for leave to
appeal. People v. Garland, 497 Mich. 953 (2015).
Petitioner’s habeas application is signed and dated March 16,
2015, and was filed with this Court on March 23, 2015.1
II. ANALYSIS
Respondent’s counsel argues in his motion for summary judgment
that petitioner’s petition should be barred from federal habeas review
by the one-year statute of limitations imposed by AEDPA. (Dkt. 7 at 5.)
The Court applies the prison mailbox rule and deems the petition to have been
filed on March 16, 2015. See Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999).
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A motion for summary judgment should be granted if the movant shows
“that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). The summary judgment rule applies to habeas proceedings.
See, e.g., Souter v. Jones, 395 F.3d 577, 584 (6th Cir. 2005); Redmond v.
Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003). In the statute-oflimitations context, “dismissal is appropriate only if a complaint clearly
shows the claim is out of time.” Harris v. New York, 186 F. 3d 243, 250
(2nd Cir. 1999); See also Cooey v. Strickland, 479 F. 3d 412, 415-16 (6th
Cir. 2007).
AEDPA applies to all habeas petitions filed after the Act’s
effective date, April 24, 1996, and imposes a one-year limitations period
for habeas petitions. 28 U.S.C. § 2244(d)(1). Title 28 of the United
States Code, sections 2244(d)(1)(A) through (D) state in pertinent part:
(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
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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 originally 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.
A habeas petition filed outside the time period prescribed by this section
is subject to dismissal. See Isham v. Randle, 226 F. 3d 691, 694-95 (6th
Cir. 2000); see also Lee v. Brunsman, 474 Fed. App’x. 439, 441 (6th Cir.
2012).
After the Michigan Supreme Court denied petitioner’s application
for leave to appeal on June 23, 2010, petitioner had ninety days to
petition the United States Supreme Court for a writ of certiorari.
Supreme Ct. R. 13. Once this opportunity to appeal to the Supreme
Court expired, the AEDPA statute of limitations begins to run on the
next day. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Because
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petitioner did not seek a writ of certiorari with the United States
Supreme Court, petitioner’s judgment became final, for the purpose of
commencing the running of the one year limitations period, on
September 21, 2010, which is ninety days after the Michigan Supreme
Court denial of leave to appeal.
The one-year limitations period
commenced September 22, 2010. Absent equitable or statutory tolling,
petitioner had until September 22, 2011 to timely file his habeas
petition. Instead, he filed his petition on March 23, 2015.
Petitioner’s motion in state court for post-conviction relief from
judgment, filed on December 9, 2013, does not cure the untimeliness of
his federal habeas petition. Although 28 U.S.C. § 2244 (d)(2) expressly
provides that the time during which a properly filed application for
state post-conviction relief or other collateral review is pending shall
not be counted towards the period of limitations contained in the
statute, that collateral appeal must nonetheless be filed within the
statute-of-limitations period. 28 U.S.C. § 2244(d)(2); Scarber v. Palmer,
808 F.3d 1093 (6th Cir. 2015) (“the limitation period commences only
after ‘the time for seeking’ direct review has expired”); Hargrove v.
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Brigano, 300 F. 3d 717, 718 n. 1 (6th Cir. 2002) (the limitation period
does not restart after it has already run).
And the mere fact that petitioner raised a claim of ineffective
assistance of appellate counsel in his post-conviction motion would not
restart the one-year limitations process anew. A motion for state postconviction review alleging ineffective assistance of appellate counsel
tolls, but does not restart, the AEDPA limitations period.
Allen v.
Yukins, 366 F. 3d 396, 401 (6th Cir. 2004) (citing McClendon v.
Sherman, 329 F. 3d 490, 493 (6th Cir. 2003)). The limitations period
had already expired by the time the post-conviction motion was filed,
and the fact that petitioner alleged ineffective assistance of appellate
counsel in his collateral challenge to his conviction does not restart or
otherwise alter the limitations period.
The AEDPA statute of limitations, 28 U.S.C. § 2244(d), “is subject
to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S.
631, 645 (2010).
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
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prevented timely filing” of the habeas petition. Id. at 649 (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “[T]he doctrine of equitable
tolling is used sparingly by federal courts.” Robertson v. Simpson, 624
F. 3d 781, 784 (6th Cir. 2010). And the burden is on a habeas petitioner
to show that he or she is entitled to equitable tolling of the one-year
limitations period. Id. Where, as here, a petitioner has failed to present
an argument that warrants equitable tolling, he is not entitled to it.
Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005) (equitable tolling
not available when the record provides no indication of any factors to be
considered); Giles v. Wolfenbarger, 239 F. App’x. 145, 147 (6th Cir.
2007) (denial of equitable tolling upheld because petitioner provided no
arguments regarding the factors).
A petition filed after the expiration of the one-year statute of
limitations may nonetheless be considered upon a credible showing of
actual innocence, under the standard enunciated in Schlup v. Delo, 513
U.S. 298 (1995). McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
The Supreme Court has cautioned that “tenable actual-innocence
gateway pleas are rare[.]”
Id.
“[A] petitioner does not meet the
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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.” Id. (quoting Schlup, 513
U.S., at 329). Moreover, in determining whether petitioner makes out a
compelling case of actual innocence, so as to toll the AEDPA limitations
period, “‘the timing of the [petition]’ is a factor bearing on the ‘reliability
of th[e] evidence’ purporting to show actual innocence.” Id. (quoting
Schlup, 513 U.S. at 332).
For an actual-innocence exception to be
credible under Schlup, such a claim requires a habeas petitioner to
support his or her 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.
Petitioner’s case does not qualify for an actual-innocence tolling
exception, because petitioner has presented no new, reliable evidence to
establish that he is actually innocent of the crimes charged. See Ross v.
Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005).
Although petitioner
claimed in his state post-conviction motion for relief from judgment that
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he was actually innocent, his claim appears to be based upon asserted
procedural flaws at trial—related to the complainant not having
testified—and the ineffective assistance of trial counsel. (Dkt. 7-2 at 1415.) “To raise the claim [of actual innocence], a petitioner must present
new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.” Maze v. Lester, 564 F. App’x 172, 180 (6th
Cir. 2014) (quoting Bell v. Howes, 703 F.3d 848, 854 (6th Cir. 2012)).
No such evidence or argument has been presented.
III. CONCLUSION
The petition for writ of habeas corpus has been filed well after the
expiration of the AEDPA statute of limitations, and no grounds for
equitable tolling are present to permit consideration despite the time
bar. Therefore, respondent’s motion is GRANTED and the petition is
DISMISSED with prejudice.
Furthermore,
the
petitioner
is
DENIED
a
certificate
of
appealability, because petitioner has failed to make “a substantial
showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2).
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“The district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Rules Governing §
2254 Cases, Rule 11(a). When a district court denies a habeas petition
on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate of appealability should issue, and an
appeal of the district court’s order may be taken, if the petitioner shows
that jurists of reason would find it debatable whether the petitioner
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).
However, when a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable
jurist could not conclude that the district court erred in dismissing the
petition or that the petition should be allowed to proceed further. In
such a circumstance, no appeal would be warranted. Id.
The Court declines to issue 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
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petition outside of the one-year limitations period. Slack v. McDaniel,
529 U.S. 473, 484 (2000). The Court also DENIES petitioner leave to
appeal in forma pauperis, because any appeal would be frivolous. See
28 U.S.C. § 1915(a).
IT IS SO ORDERED.
Dated: February 4, 2016
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 4, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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