Boggs v. Campbell

Filing 11

OPINION and ORDER Granting 8 MOTION for Summary Judgment; Dismissing 1 Petition for Writ of Habeas Corpus, and Denying Certificate of Appealability and Permission to Appeal in forma pauperis, Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICARDO T. BOGGS,
Petitioner,

Case No. 5:17-cv-11909
Hon. John Corbett O’Meara

SHERMAN CAMPBELL,
Respondent.
_____________________________________/
OPINION AND ORDER (1) GRANTING RESPONDENT’S MOTION FOR SUMMARY
JUDGMENT [Dkt. 8], (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS,
AND (3) DENYING CERTIFICATE OF APPEALABILITY AND PERMISSION TO
APPEAL IN FORMA PAUPERIS
Ricardo T. Boggs, (“Petitioner”), a Michigan Department of Corrections prisoner, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges Petitioner’s
Wayne Circuit Court conviction for first-degree home invasion, MICH. COMP. LAWS § 750.110a(2),
second-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520c(1)(c), and larceny in a
building, MICH. COMP. LAWS § 750.360. Petitioner was sentenced as a fourth-time habitual felony
offender to 15-to-25 years for the home-invasion conviction, 7-to-12 years for the criminal sexual
conduct conviction, and 30 months-to-8 years for the larceny conviction.
This matter is before the Court on Respondent’s motion to dismiss the petition on the
grounds that it was filed after expiration of the statute of limitations. [Dkt. 8]. Petitioner has filed
an answer to the motion, asserting that he is entitled to equitable tolling on the grounds that his
mental incompetence excuses his untimely petition. The Court will grant Respondent’s motion for
summary judgment and dismiss the case because Petitioner failed to comply with the one-year
limitations period under 28 U.S.C. §2244(d), and Petitioner has failed to demonstrate that he is
entitled to equitable tolling. The Court will also deny Petitioner a certificate of appealability and

deny permission to proceed on appeal in forma pauperis.
I. Background
The Michigan Court of Appeals summarized the facts regarding Petitioner’s conviction as
follows:
Defendant unlawfully entered the victim’s first-floor Detroit apartment, through a
bedroom window, and then sexually assaulted her and stole her cell phone. After he
fled, the police were able to track defendant’s location using the GPS technology on
the victim’s cell phone. After defendant refused to participate in a live lineup, the
victim unequivocally identified him in a photographic array. On appeal, defendant
raises issues related to his competency to stand trial and criminal responsibility.
People v. Boggs, No. 324418, 2016 WL 555857, *1 (Mich. Ct. App. Feb. 11, 2016).
Following Petitioner’s conviction Petitioner’s appellate counsel filed an appeal of right.
While the appeal was pending, Petitioner’s appellate counsel filed a motion for new trial, asserting
that Petitioner had been incompetent to stand trial. A hearing was held on the motion on May 22,
2015. Following argument, the trial court issued an opinion denying the motion, finding in part:
[T]he record is clear that Mr. Boggs underwent evaluation for both competency to
stand trial and criminal responsibility, and the medically trained and qualified
personnel from the Center for Forensic Psychiatry opined that he was both able to
understand and assist in his defense and was not insane at the time of the offense.
Dkt. 9-10, at 4.
Petitioner’s appellate brief filed in the Michigan Court of Appeals raised two claims: (1)
Petitioner was denied the effective assistance of trial counsel for failing to challenge Petitioner’s
competency to stand trial and his criminal responsibility, and (2) Petitioner was incompetent to stand
trial. On February 11, 2016, the Michigan Court of Appeals issued an unpublished opinion affirming
Petitioner’s convictions. Boggs, 2016 WL 555857.
With respect to Petitioner’s competency claim, the Court found:

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Defendant was evaluated by a forensic psychologist and determined to be both
competent and criminally responsible. Defense counsel stipulated to the competency
evaluation and produced no evidence to the contrary. In addition, as previously
mentioned, defense counsel informed the court that, after discussing the case with
defendant “in some detail,” he believed that defendant understood “the nature of the
charges” and was able to assist in his defense. In light of this record, the trial court
did not abuse its discretion in finding defendant competent to stand trial.
Id., at 4.
Petitioner then attempted to file an application for leave to appeal in the Michigan Supreme
Court, but it was rejected on August 8, 2016, because it was filed after expiration of the 56-day limit
for filing a delayed application for leave to appeal. Dkt. 9-12.
Petitioner then pursued the present action. He did not date his petition, but the proof of
service is dated June 6, 2017. The petition was filed on June 12, 2017.
II. Standard of Review
Though Respondent styles his motion as a motion to dismiss, it is properly construed as one
of summary judgment because the motion and the record before the Court includes documents
outside of the pleadings. See e.g., Anderson v. Shane Place, 2017 U.S. Dist. LEXIS 65670, *6, 2017
WL 1549763 (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. In considering a motion for summary judgment, the
Court will construe all facts in a light most favorable to the non-moving party, here the Petitioner.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (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. If the movant carries its burden of showing an absence of evidence to
support a claim, then the non-movant must demonstrate by affidavits, depositions, answers to

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interrogatories and admissions that a genuine issue of material fact exists. Celotex Corp. v. Catrett,
477 U.S. 317, 324-325 (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
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a one-year
period of limitation for a habeas petition filed by a state prisoner seeking habeas relief from a state
court judgment. 28 U.S.C. § 2244(d)(1). The limitation runs from one of four specified dates, usually
either the day 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). That section provides the operative date
from which the one-year limitations period is measured in this case. Petitioner’s response to the
motion to dismiss does not assert that any other starting point applies, and no other starting point
appears in the record.
Under section 2244(d)(1)(A), 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 Michigan Court of Appeals denied Petitioner’s direct appeal on February
11, 2016. Petitioner attempted to file an application for leave to appeal in the Michigan Supreme
Court, but it was rejected as untimely. The statute of limitations therefore began running after the
expiration of the time for seeking direct review, or 56-days after the Court of Appeals decision, the
time with which Petitioner had to file a direct appeal in the Michigan Supreme Court. See MICH. CT.
R. 7.302(C); Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001); Gonzalez v. Thaler, 565 U.S. 134,
150 (2012). That date was April 7, 2016, and the limitations period expired one-year later. Because

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Petitioner appears to have mailed his petition to the Court on June 6, 2017, the action was
commenced about two months after the limitations period expired.
The petition is therefore time-barred unless Petition can demonstrate grounds for equitable
tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). A petitioner is entitled to equitable tolling if
he demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Id. (internal quotation marks omitted).
The party seeking equitable tolling bears the burden of proving that he is entitled to it. Robertson
v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010).
Petitioner filed a response to Respondent’s motion asserting that he is entitled to equitable
tolling because: (1) he is mentally incompetent to personally handle his own appeal, and (2) he was
led to believe that he had 90-days following the Michigan Court of Appeals decision until the
limitations period began running. The fact that Petitioner or the prisoner assisting him is untrained
in the law or may have been unaware of the manner in which the statute of limitations is calculated
does not warrant tolling. See Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004) (ignorance of the
law does not justify tolling); 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).
Furthermore, Petitioner’s alleged intellectual disability does not present 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. 2011). In
other words, to be entitled to equitable tolling on such a basis, a habeas petitioner must show that

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he was mentally incompetent and that his 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.”).
Furthermore, a mental impairment “might justify equitable tolling if it interferes with the ability to
understand the need for assistance, the ability to secure it, or the ability to cooperate with or monitor
assistance” once obtained. Stiltner v. Hart, 657 Fed. Appx. 513, 2016 WL 5403898, *7 (6th Cir.
2016) (quoting Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010)).
Petitioner does not meet this standard. He fails to allege any facts to show that his mental
health condition or the side effects of any medication were significant during the relevant time
period or that they impaired his ability to timely pursue state court remedies or seek federal habeas
relief in a timely manner. Indeed, the record indicates that Petitioner was able to obtain sufficient
assistance while incarcerated to file a timely federal habeas petition. Instead, he or the prisoner
assisting him filed three futile pleading in the state courts. Petitioner attempted to file two untimely
pro se motions for reconsideration in the Michigan Court of Appeals dated April 20, 2016, and May
12, 2016. Dkt. 9-11, at 72-79. And on August 8, 2016, Petitioner was able to obtain sufficient
assistance to file an untimely application for leave to appeal in the Michigan Supreme Court. Dkt.
9-12. Instead of filing these out-of-time pleadings in the state courts, Petitioner or the person
assisting him could have filed a timely federal habeas petition. His failure to do so was not the result
of his own mental disability, it was because he “was told that he had one year and 90-day time limit
in which to file his § 2254 petition [from the Michigan Court of Appeals decision].” Dkt. 10, at 3.
Such a mistaken understanding of the filing requirements does not provide a basis for equitable

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tolling. Allen, 366 F.3d at 403; Mendez v. Artuz, 2000 WL 991336 (S.D.N.Y. 2000) (fellow inmate’s
inaccurate legal advice did not excuse petitioner from complying with § 2244(d)(1) deadline).
Moreover, Petitioner does not make any evidentiary proffer regarding the extent of his
alleged intellectual or mental disability. He asserts that suffers from “mental retardation and mental
incompetence,” but the only evidence of record is the state court’s finding that Petitioner was
competent to stand trial. “[S]peculation about the impact of mental 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). Petitioner simply fails to show that any mental health issues
impaired his ability to file his petition in a timely manner. Indeed, as indicated, it appears that
Petitioner recognized that he would benefit from legal assistance during the relevant time period,
and he obtained some assistance in filing the untimely pleadings in the state courts. Petitioner
therefore fails to demonstrate that he is entitled to equitable tolling.
Accordingly, the Court will grant Respondent’s motion for summary judgment and dismiss
the petition.
III. Conclusion
Before Petitioner may appeal, a certificate of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court denies relief on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on
procedural grounds without addressing the merits, a certificate of appealability should issue if it is

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shown 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. Id. Having undertaken the requisite review, the court
concludes that jurists of reason could not debate the Court’s procedural ruling. A certificate of
appealability will therefore be denied. Leave to appeal in forma pauperis is denied because an appeal
of this order could not be taken in good faith. 18 U.S.C. § 1915(a)(3).
IV. Order
For the foregoing reasons, IT IS ORDERED that Respondent’s motion for summary
judgment is GRANTED, and the petition is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability and permission for leave
to appeal in forma pauperis are DENIED.

s/John Corbett O’Meara
United States District Judge
Date: January 31, 2018

I hereby certify that a copy of the foregoing document was served upon the parties of record
on this date, January 31, 2018, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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