Miliner v. Klee

Filing 25

OPINION and ORDER Granting 20 MOTION to Dismiss Petition for Writ of Habeas Corpus; Denying 22 MOTION for Bond; and Denying Certificate of Appealability. Signed by District Judge Judith E. Levy. (WBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMARR D. MILINER,1
Petitioner,

Case No. 5:16-cv-12783
Hon. Judith E. Levy

v.
PAUL KLEE,
Respondent.
_____________________________________/

OPINION AND ORDER (1) GRANTING RESPONDENT’S
MOTION TO DISMISS THE AMENDED PETITION FOR WRIT
OF HABEAS CORPUS, (2) DENYING CERTIFICATE OF
APPEALABILITY, AND (3) DENYING EMERGENCY MOTION
FOR BOND RELEASE
This is a habeas case brought by a Michigan prisoner under 28
U.S.C. § 2254. Jamarr D. Milner, (“Petitioner”), was convicted after a jury
trial in the Wayne Circuit Court of second-degree murder. MICH. COMP.
LAWS § 750.316. He was sentenced to 35 to 70 years’ imprisonment.
The amended petition raises four claims: (1) Petitioner’s sentence
exceeded the mandatory sentencing guidelines range, (2) insufficient
evidence was presented at trial to sustain Petitioner’s conviction, (3)
Petitioner’s Sixth Amendment rights were violated by the scoring of the
The case citation incorrectly names Petitioner as “Jamarr D. Miliner,” but this
opinion will refer to Petitioner’s actual name: Jamarr D. Milner.
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sentencing guidelines based on facts not proven beyond a reasonable
doubt, and (4) Petitioner’s counsel was ineffective for failing to object to
the scoring of the sentencing guidelines. (ECF No. 10.)
Respondent filed a motion to dismiss the petition because it was
filed after expiration of the one-year statute of limitations. 28 U.S.C. §
2244(d). The Court agrees and will dismiss the petition. The Court will
also deny Petitioner a certificate of appealability and deny Petitioner’s
motion for release on bond.
I. Background
The Michigan Court of Appeals summarized the facts surrounding
Petitioner’s state trial:
This case stems from the death of Ronnita Bradberry
(Bradberry) that occurred on November 4, 2012. Defendant’s
and Bradberry’s son, JM, was five years old at the time of
Bradberry’s death. Defendant, Bradberry, and JM shared a
bedroom in the home. Defendant’s brother, Dwight Milner
(Dwight), lived upstairs in the same home.
On the night of November 3, 2012, Defendant and
Windall Hall (Hall) were drinking alcohol at defendant’s
home. Defendant and Hall left the home at approximately
11:00 p.m. or midnight to go to a party. Defendant returned
to the home at approximately 2:00 a.m. or 3:00 a.m.
JM testified that he was sleeping with Bradberry in her
bed. JM awoke to Bradberry yelling at defendant. Defendant
punched Bradberry’s face and head while she was lying down.
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Dwight heard Bradberry say, “Stop, Jamarr.” While
Bradberry was on the floor, defendant hit her with the
bedroom door and a fan. JM never saw Bradberry hit
defendant during the altercation. Dwight did not see the
altercation, but only heard the sounds of fighting. JM testified
that after defendant stopped beating Bradberry, she was on
the floor and motionless. Defendant walked out of the
bedroom as Dwight entered. Dwight testified that Bradberry
was on the floor, leaning against the bed, and her mouth was
open. Dwight saw JM in the bedroom. Dwight tried to give
water to Bradberry, but she was unresponsive. Defendant had
a gun and left the home. Dwight called for the police and
ambulance. Dwight told the 911 operator that someone had
broken into the home and injured Bradberry because he was
scared, nervous, and did not want to implicate defendant. JM
testified that he was scared when he witnessed defendant
beat Bradberry.
Ebony Towns (Towns) testified that defendant arrived
at her home at approximately 5:00 a.m. Defendant told her
that he had left a party and needed a ride home. However,
Towns originally told the police that defendant said that he
had a house and wanted her to move in with him. Defendant’s
shirt was ripped and he said that he had been wrestling with
Dwight. Later that morning, defendant bought a different
shirt from a gas station. Defendant told Towns that he and
Bradberry were no longer dating.
Officer Douglas Mart responded to defendant’s home
and observed Bradberry on the ground with her eyes “wide
open.” JM was on the bed and leaning against Bradberry’s
shoulder. Officer Jamie Vajen also testified that JM was next
to Bradberry and was in shock. JM told Vajen that his mother
and father were arguing, his father picked up a fan, hit his
mother in the face with the fan, and then left the home. There
were no signs of forced entry at the home. Officer Johnell
White, the officer in charge of the case, testified that
defendant misled the police regarding his whereabouts at the
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time of the murder. The medical examiner concluded that
Bradberry died of asphyxiation.
People v. Milner, 2014 WL 4160423, *1 (Mich. Ct. App. Aug. 21, 2014).
The jury found Petitioner guilty of second-degree murder on March
21, 2013. The trial court sentencing him on April 8, 2013.
Petitioner pursued an appeal in the Michigan Court of Appeals. His
brief on appeal claimed that the trial court erred in departing above the
recommended sentencing guidelines range, and that the trial court
improperly increased Petitioner’s sentence for subjecting his son to the
trauma of testifying against him at trial. On August 21, 2014, the
Michigan Court of Appeals issued an unpublished opinion rejecting these
claims. Id.
Petitioner then filed an application for leave to appeal in the
Michigan Supreme Court. On March 3, 2015, the Michigan Supreme
Court denied leave to appeal by standard form order. People v. Milner,
859 N.W.2d 701 (Mich. 2015) (Table).
Petitioner’s conviction became final 90 days later, on June 1, 2015,
when the time for filing a petition for a writ of certiorari in the United
States Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283
(6th Cir. 2000).
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A few days short of a year later, Petitioner signed and dated a pro
se motion for relief from judgment on May 27, 2016. He sent the motion
to the trial court from prison by first class mail. The trial court filed the
motion for relief from judgment on June 2, 2016, one year and one day
after his conviction had become final. The motion raised three claims: (1)
insufficient evidence was presented at Petitioner’s trial to support his
conviction, (2) Petitioner’s sentence was based on inaccurate information,
and (3) Petitioner’s counsel was ineffective for failing to request an
instruction on involuntary manslaughter. The trial court denied the
motion by order dated July 12, 2016. (ECF No. 21-13.)
Realizing that he had a potential problem with the statute of
limitations, Petitioner attempted to initiate the present habeas action by
filing a letter dated July 20, 2016, indicating he was seeking “an
extension of time so I can finish up and file my writ of habeas corpus ...
My toll time has run out as soon as I receive my order of denial from the
lower court on my 6.500 motion for relief from judgment date 7-18-16.”
(ECF No. 1, PageID.1.)
Then, on December 5, 2016, Petitioner filed his first habeas
petition. (ECF No. 4.) Petitioner also filed a motion to stay the case,
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noting that he was pursuing collateral review in the state courts. (ECF
No. 6.) The court granted the motion. (ECF No. 7).
Meanwhile, Petitioner had filed a delayed application for leave to
appeal in the Michigan Court of Appeals, but it was denied by form order
of March 29, 2017. (ECF No. 21-16, PageID.895.) Petitioner next applied
for leave to appeal to the Michigan Supreme Court, but that court also
denied leave by form order. (ECF No. 21-17, PageID.1038.)
Having exhausted his state court collateral remedies, Petitioner
next successfully moved to reopen the present case. (ECF Nos. 9 and 10.)
Petitioner also moved to include additional issues—ones not presented
on direct or collateral review to the state courts—but that motion was
denied. (ECF. Nos. 11 and 13.)
Respondent thereafter filed its motion to dismiss the petition as
untimely, Petitioner filed a reply, and the matter is now ready for
decision. (ECF. Nos. 20 and 23.)
II. Standard of Review
Though Respondent styles his motion as a motion to dismiss, it is
properly construed as one for summary judgment because the motion and
the record before the Court include documents outside of the pleadings.
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See, e.g., Anderson v. Place, No. 16-12675 ,2017 WL 1549763, at *2 (E.D.
Mich. May 1, 2017). Summary judgment is proper where there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Id. In considering a motion for summary
judgment, the court will construe all facts in a light most favorable to the
non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 588 (1986). There are no genuine issues of material fact when
“the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party.” Id. at 587. If the movant carries their burden
of showing an absence of evidence to support a claim, then the nonmovant must demonstrate by affidavits, depositions, answers to
interrogatories and admissions that a genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). This
standard of review may be applied to habeas proceedings. See Redmond
v. Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003).
III. Discussion
There is a one-year statute of limitation for petitions filed by state
prisoners seeking federal habeas relief. 28 U.S.C. § 2244(d)(1). The
limitation runs from one of four specified dates, usually either the day
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when the judgment becomes final by the conclusion of direct review or
the day when the time for seeking such review expires. § 2244(d)(1)(A).
The limitation period is tolled while “a properly filed application for State
post-conviction or other collateral review . . . is pending.” § 2244(d)(2).
Section 2244(d)(1)(A) provides the operative date from which the
one-year limitations period is measured in this case. No other section is
implicated by the facts of the case, nor is one advanced as an alternate
starting point by either party. Under this section, the one-year
limitations period runs from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for
seeking such review.” The expiration of time for seeking direct review of
Petitioner’s conviction was June 1, 2015—90 days after the Michigan
Supreme Court denied Petitioner’s application for leave to appeal from
his direct appeal, when the time for filing a petition for certiorari. See
Bronaugh, 235 F.3d at 283.
This means that Day 1 of the limitations period was June 2, 2015.
It also means that the last day of the one-year limitations period was
June 1, 2016. See, e.g., Mack v. Chapman, 2019 U.S. Dist. LEXIS 146942,
at *2-3, 2019 (E.D. Mich. Aug. 29, 2019). Absent tolling, Petitioner’s
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habeas action is timely only if it was filed on or before June 1, 2016. See
id.
The one-year statute of limitations may be statutorily tolled by
properly filing a motion for post-conviction review in the state courts. See
28 U.S.C. § 2244(d)(2). This provision is the point at which the parties’
theories diverge. Petitioner asserts that he started tolling the period of
limitations before it expired on May 26 or 27, 2016, when he mailed his
motion for relief from judgment to the state trial court. This is why, he
claims, he attempted to initiate this action with his letter of July 25,
2016, explaining that he believed he only had a few days left on the
limitations period, and he needed an extension of time to file his habeas
petition before it expired days after the trial court denied his motion. (See
ECF No. 1.)
Respondent, on the other hand, asserts that Petitioner had already
missed the deadline by one day when he filed his motion for relief from
judgment. Respondent asserts that the limitations period did not begin
tolling when Petitioner placed his motion for relief from judgment to the
trial court in the mail, but that it only started tolling when the state trial
court filed it on June 2, 2016. (ECF No. 20, PageID.155.)
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Respondent is correct. The “prison mailbox rule” applicable to
prisoner filings in federal court (see Rule 3(d) of the Rules Governing
Section 2254 Cases and Houston v. Lack, 487 U.S. 266, 270 (1988)), does
not apply to state court filings. See Vroman v. Brigano, 346 F.3d 598, 604
(6th Cir. 2003). An application for state post-conviction relief tolls the
statute of limitations under section 2244(d)(2) only when it is “properly
filed,” meaning “when its delivery and acceptance are in compliance with
the applicable laws and rules governing filings, e.g., requirements
concerning ... applicable time limits upon its delivery.” Israfil v. Russell,
276 F.3d 768, 771 (6th Cir. 2001). Michigan does not recognize a “prison
mailbox rule” for post-conviction motions filed in the state circuit court.
See Mich. Ct. R. 7.205(A)(3); People v. Lewis, 490 Mich. 967 (2011);
Walker-Bey v. Dep’t of Corr., 564 N.W.2d 171, 173 (Mich. App. 1997);
Hebron v. Smith, 2001 WL 902621, at *2 (E.D. Mich. June 29, 2001).
Accordingly, by the time Petitioner’s motion for relief from judgment was
filed by the trial court on June 2, 2016—an act that normally would have
begun tolling the limitations period—the limitations period had already
expired.

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Petitioner may nevertheless overcome the statute of limitations if
he can establish grounds for equitable tolling. A habeas 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.” Holland v. Florida, 560 U.S. 631,
649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner’s reply to Respondent’s motion is drafted with poor
handwriting, so it is difficult to discern what Petitioner is arguing. (ECF
No. 23.) But it seems that, apart from contesting Respondent’s
calculations, Petitioner asserts that his mental illness excuses his
untimeliness. Petitioner’s only support for this contention is a notation
in his presentence investigation report that Petitioner suffers from
attention deficit disorder and bipolar disorder, and that he is prescribed
Xanax and Seroquel. (See id.)
These allegations are insufficient to demonstrate grounds for
equitable tolling. A habeas petitioner’s mental incompetence may
constitute an extraordinary circumstance which justifies equitable
tolling of the one-year period, but only if that condition prevents the
timely filing of a habeas petition. Ata v. Scutt, 662 F.3d 736, 742 (6th Cir.
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2011). In other words, to be entitled to equitable tolling on this basis, a
habeas petitioner must show that he was mentally incompetent and that
the mental impairment was the cause for the late filing. Id.; Robertson v.
Simpson, 624 F.3d 781, 785 (6th Cir. 2010); see also Plummer v. Warren,
463 F. App’x 501, 506 (6th Cir. 2012) (“Illness—mental or physical—tolls
a statute of limitations only if it actually prevents the sufferer from
pursuing his legal rights during the limitations period.”). Petitioner does
not meet this standard.
While Petitioner alleges that he is bipolar and suffers from
attention deficit disorder, he does not elaborate on his condition. His
pleadings do not establish that he is (or was) mentally incompetent or
that his mental health condition impaired his ability to pursue legal
proceedings on his own behalf throughout the relevant time period: from
the time the Michigan Supreme Court denied leave to appeal on direct
appeal, and during the fifteen months that followed until he finally filed
his motion for relief from judgment. Indeed, based on Petitioner’s
pleadings, it seems that his late filing was the result of his failure to
correctly calculate the statute of limitations, and not as a result of his
mental illness. Furthermore, “speculation about the impact of mental
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illness on the ability to timely file a habeas petition is not sufficient to
warrant an evidentiary hearing.” McSwain v. Davis, 287 F. App’x. 450,
457-58 (6th Cir. 2008).
Finally, the fact that Petitioner was only one day late does not
provide a basis for equitable tolling. See United States v. Locke, 471 U.S.
84, 101 (1985) (rejecting filing that was one day late); Hartz v. United
States, 419 F. App’x 782, 783 (9th Cir. 2011) (affirming the dismissal of a
federal habeas petition where petitioner “simply missed the statute of
limitations deadline by one day.”) Petitioner believed that he had until
June 1, 2016, to send his motion for relief from judgment out in the mail,
and he did not understand that the motion needed instead to be received
and filed by that date. That sort of mistake does not present grounds for
equitable tolling. See, e.g., Rodriguez v. Elo, 195 F. Supp. 2d 934, 936
(E.D. Mich. 2002) (the law is “replete with instances which firmly
establish that ignorance of the law, despite a litigant’s pro se status, is
no excuse” for failure to follow legal requirements); Holloway v. Jones,
166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001). Petitioner has therefore
failed to demonstrate entitlement to equitable tolling.
IV. Conclusion
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Accordingly, the petition was filed after expiration of the one-year
statute of limitations, and Petitioner has failed to demonstrate grounds
for equitable tolling. The petition will therefore be dismissed.
Furthermore, jurists of reason would not debate the Court’s
conclusion that Petitioner has failed to demonstrate entitlement to
habeas relief because the petition is barred by expiration of the statute
of limitations. Reasonable jurists would not debate that Petitioner has
failed to demonstrate grounds for equitable tolling based on his claimed
actual innocence. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). Therefore, a certificate of appealability will be denied.
Finally, because the case is dismissed, Petitioner’s motion for
release on bond, ECF No. 22, is denied as moot.
V. Order
Accordingly, the Court 1) DENIES WITH PREJUDICE the
petition for a writ of habeas corpus, 2) DENIES Petitioner a certificate
of appealability, and 3) DENIES Petitioner’s motion for release on bond.
IT IS SO ORDERED.
Dated: August 10, 2020
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 August 10, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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