Farnsworth v. Brewer

Filing 11

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Petitioner Leave to Appeal in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Brandon Farnsworth,
Petitioner,
v.

Case No. 16-cv-11108
Judith E. Levy
United States District Judge

Shawn Brewer,
Respondent.

Mag. Judge Stephanie Dawkins
Davis

________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING PETITIONER LEAVE TO
APPEAL IN FORMA PAUPERIS [1]
Petitioner Brandon James Farnsworth, incarcerated at the G.
Robert Cotton Correctional Facility in Jackson, Michigan, filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges his conviction of first-degree criminal sexual
conduct. MICH. COMP. LAWS § 750.520b(1)(a).
Respondent filed a motion to dismiss the petition, arguing the
petition was barred because it was filed after the statute of limitations—

contained in 28 U.S.C. § 2244(d)(1)—had run. (Dkt. 8.) For the reasons
stated below, the petition for a writ of habeas corpus is denied.
I. Background
Petitioner pleaded guilty to two counts of first-degree criminal
sexual conduct pursuant to plea agreement. On July 10, 2013, Petitioner
was sentenced to concurrent sentences of forty to sixty years in prison.
Petitioner did not file a direct appeal with the Michigan Court of
Appeals.1
On January 21, 2014, Petitioner filed a motion for “post-appeal
relief” with the trial court, stating that because he did not file a timely
appeal, he was requesting a sentence reduction in this manner instead.
(Dkt. 9-4.) On March 4, 2014, the trial court denied Petitioner’s motion
pursuant to MICH. CT. R. 6.508(D), the rule governing post-conviction
motions for relief from judgment. (Dkt. 9-6.) Petitioner did not appeal
the denial of his post-conviction motion.
On October 22, 2015, Petitioner filed a motion for “relief from fines
and costs,” which was denied. People v. Farnsworth, No. 13-004072-FC

See Affidavit of Jerome W. Zimmer, Jr., Chief Clerk of the Michigan Court of
Appeals, dated July 12, 2016. (Dkt. 9-9.) The affidavit states that Petitioner never
filed any appeals from his criminal case.
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(Jackson Cty. Cir. Ct. Oct. 23, 2015). Petitioner did not appeal the denial
of this motion.
On December 9, 2015, Petitioner filed a “motion to suppress
statements,” which the trial court denied as an improperly filed
successive motion for relief from judgment. (Dkt. 9-8.) Petitioner did not
appeal the denial of this motion.
Petitioner signed and dated his petition for writ of habeas corpus
on March 15, 2016, and it was received by the Court on March 22, 2016.2
Respondent filed a motion to dismiss the petition, arguing that the
petition was filed after the statute of limitations had run.
II. Analysis
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
imposes a one-year statute of limitations on petitions for habeas relief.
28 U.S.C. § 2244(d). AEDPA provides that:
(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—

Under the prison mailbox rule, this Court will assume that petitioner actually filed
his habeas petition on March 15, 2016, the date that it was signed and dated. See
Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999).
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(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
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.
Id. Although not jurisdictional, AEDPA’s one-year limitations period
“effectively bars relief absent a showing that the petition’s untimeliness
should be excused based on equitable tolling and actual innocence.”
Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009). Thus, a petition
should be dismissed if it was not filed within the one-year statute of
limitations period. Id. at 261.
The limitations period begins to run when a petitioner’s conviction
becomes “final.” Williams v. Wilson, 149 F. App’x 342, 345 (6th Cir.
2005). A conviction becomes final when direct review by the state court
ends or when the time to seek direct review expires, whichever comes
later. Wilberger v. Carter, 35 F. App’x 111, 115 (6th Cir. 2002).
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Here, Petitioner was sentenced on July 10, 2013. He then had six
months after sentencing to file an application for leave to appeal with the
state courts. MICH. CT. R. 7.205(G)(3). Petitioner did not file a direct
appeal from his conviction and sentence. Thus, Petitioner’s conviction
became final six months after sentencing, when the time limit for filing
a direct appeal expired. See Wilberger, 35 F. App’x at 115 (“The one-year
clock therefore started ticking when [Petitioner’s] time expired for him to
seek [state court appellate review].”). Petitioner’s conviction became
final on January 10, 2014. Thus, he had until January 10, 2015, to file a
habeas petition with this Court, unless the limitations period was tolled.
Petitioner’s first post-conviction motion tolled the statute of
limitations. Petitioner filed his first post-conviction motion at the trial
court on January 21, 2014, after eleven days had elapsed under the
statute of limitations. AEDPA 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. 28 U.S.C. § 2244(d)(2); McClendon v. Sherman, 329 F.3d 490,
493 (6th Cir. 2003).

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The trial court denied Petitioner’s post-conviction motion on March
4, 2014. Petitioner had six months to file for leave to appeal the decision,
but failed to do so. MICH. CT. R. 7.205. Because Petitioner did not appeal
the denial of his post-conviction motion, the statute of limitations began
running again after the six-month period to appeal ended, on September
4, 2014. See, e.g., Holbrook v. Curtin, 833 F.3d 612, 619 (6th Cir. 2016)
(“AEDPA’s one-year statute of limitations was tolled during the period in
which [the petitioner] could have, but did not, appeal . . . [the] denial of
his motion for post-conviction relief.”).
From September 4, 2014, Petitioner had three hundred and fifty
four days, until August 24, 2015, to file his habeas petition or to otherwise
toll the limitations period.
After the expiration of the limitations period, Petitioner filed two
motions. First, on October 22, 2015, Petitioner filed a motion for “relief
from fines and costs.” Then, in December 2015, Petitioner filed a “motion
to suppress statements.” These two motions did not toll the statute of
limitations. A state court post-conviction motion that is filed after the
expiration of the limitations period cannot toll the limitations period

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because there is no period left to be tolled. Jurado v. Burt, 337 F.3d 638,
641 (6th Cir. 2003).
Although the AEDPA statute of limitations “is subject to equitable
tolling in appropriate cases,” this is not one of those 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’” that prevented the timely filing of the habeas petition. Id. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “However,
the doctrine of equitable tolling is used sparingly by federal courts,”
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010), and Petitioner
has the burden to show that he is entitled to the equitable tolling of the
limitations period. Id. Petitioner has not carried his burden.
Petitioner has not responded to the motion to dismiss.

In his

petition, however, he claims that he suffers from mental illness.
Petitioner has not provided documentation of such an illness to the Court,
but claims that he suffers from a “dissociative state/double personality
disorder.” (Dkt. 1 at 7.) At his sentencing, Petitioner’s counsel indicated
that Petitioner suffered from attention deficit disorder, bipolar disorder,
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and possibly schizophrenia. (Dkt. 9-3 at 5.) The prosecutor replied that
Petitioner had been evaluated, and the psychiatrist indicated that
Petitioner was exaggerating his claims of mental illness. (Id. at 7.)
A habeas petitioner’s mental incompetence or incapacity may
provide a basis for equitable tolling of the AEDPA’s statute of limitations.
Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). To toll AEDPA’s statute
of limitations on the basis of mental incompetence, Petitioner must show
that (1) he is mentally incompetent and (2) his mental incompetence
caused his failure to comply with the AEDPA’s statute of limitations. Id.
“[A] blanket assertion of mental incompetence is insufficient to toll the
statute of limitations.

Rather, a causal link between the mental

condition and untimely filing is required.” Id. (internal citation omitted).
Thus, “the petitioner must demonstrate that the incompetence affected
his or her ability to file a timely habeas petition.” Robertson, 624 F.3d at
785. Even so, “[m]ental incompetence is not a per se reason to toll a
statute of limitations.” McSwain v. Davis, 287 F. App’x 450, 456 (6th Cir.
2008).
Here, Petitioner is not entitled to equitable tolling on the grounds
of mental incompetence for two reasons. First, Petitioner has not alleged
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that “he was incapacitated for the period in question and that his
incapacitation prevented him from timely filing his position.” Ata, 662
F.3d at 743. Second, Petitioner was able to pursue several collateral
challenges to his conviction in the state courts, during the limitations
period, while suffering from his alleged mental impairment.

Thus,

Petitioner has failed to show a causal connection between his mental
illness and his ability to file a petition within the limitations period.
Finally, Petitioner has not claimed or made a showing of actual
innocence such that the Court could consider the merits of his claim
despite the statute of limitations’ expiration. McQuiggin v. Perkins, __
U.S. __, 133 S. Ct. 1924, 1932-33 (2013). Petitioner has not made a
showing of actual innocence because he has not presented any new
reliable evidence to establish that he was actually innocent of the crime
charged.

See Ross v. Berghuis, 417 F.3d 552, 556 (6th Cir. 2005).

Accordingly, the petition is denied with prejudice.
The Court also denies Petitioner a certificate of appealability,
because reasonable jurists would not find it debatable whether the Court
was correct in determining that Petitioner filed his habeas petition
outside of the one-year limitations period. See Grayson v. Grayson, 185
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F. Supp. 2d 747, 753 (E.D. Mich. 2002).

The Court will also deny

petitioner leave to appeal in forma pauperis because the appeal would be
frivolous. Id.
III. Conclusion
For the reasons set forth above, the petition for writ of habeas
corpus is DENIED WITH PREJUDICE.

Petitioner is DENIED a

Certificate of Appealability. Petitioner is DENIED leave to appeal in
forma pauperis.
IT IS SO ORDERED.
Dated: March 27, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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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 March 27, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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