Duren v. Gidley
Filing
7
OPINION and ORDER Dismissing the 1 Petition for a Writ of Habeas Corpus, Denying 4 Motion for Equitable Tolling, Denying 3 Motion for Appointment of Counsel, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Nathan Duren, #234181,
Petitioner,
v.
Case No. 18-cv-11062
Judith E. Levy
United States District Judge
Lori Gidley,
Mag. Judge David R. Grand
Respondent.
________________________________/
OPINION & ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS [1], DENYING THE MOTIONS
FOR EQUITABLE TOLLING [4] & APPOINTMENT OF
COUNSEL [3], DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
Michigan prisoner Nathan Duren (“petitioner”) has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1),
as well as motions for equitable tolling (Dkt. 4) and appointment of
counsel (Dkt. 3). Following a bench trial in the Wayne County Circuit
Court, petitioner was convicted of two counts of felonious assault, felon
in possession of a firearm, and possession of a firearm during the
commission of a felony. In 2014, he was sentenced as a fourth habitual
offender to concurrent terms of one to 10 years imprisonment on the
assault and felon in possession convictions and a consecutive term of five
years imprisonment on the felony firearm conviction. In his petition, he
raises claims concerning the sufficiency of the evidence, the great weight
of the evidence, the conduct of the prosecutor, and the effectiveness of
trial counsel. In his motion for equitable tolling, he indicates that his
habeas petition is untimely under the one-year statute of limitations
applicable to federal habeas actions, but asserts that he is entitled to
equitable tolling.
For the reasons set forth below, the habeas petition is untimely, and
petitioner’s motions for equitable tolling and the appointment of counsel
are denied. In addition, a certificate of appealability and leave to proceed
in forma pauperis on appeal are denied.
II.
Procedural History
Petitioner was convicted and sentenced in 2014.
Following
sentencing, he filed an appeal of right with the Michigan Court of Appeals
raising the same claims presented on habeas review. The court denied
relief on those claims and affirmed his convictions. People v. Duren, No.
324836, 2016 WL 2731093 (Mich. Ct. App. May 10, 2016) (unpublished).
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Petitioner filed an application for leave to appeal with the Michigan
Supreme Court, which was denied in a standard order. People v. Duren,
500 Mich. 899 (Nov. 30, 2016).
Petitioner dated his federal habeas petition on March 27, 2018.
III. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241 et seq., became effective on April
24, 1996. The AEDPA includes a one-year period of limitations for habeas
petitions brought by prisoners challenging state-court judgments. The
statute provides:
(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 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 initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
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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.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d). A habeas petition filed outside the proscribed time
period must be dismissed. See Isham v. Randle, 226 F.3d 691, 694-95
(6th Cir. 2000) (dismissing case filed 13 days late); Wilson v. Birkett, 192
F. Supp. 2d 763, 765 (E.D. Mich. 2002).
A preliminary question in this case is whether petitioner has
complied with the one-year statute of limitations. “[D]istrict courts are
permitted . . . to consider sua sponte, the timeliness of a state prisoner’s
federal habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006).
The Michigan Supreme Court denied petitioner’s direct appeal on
November 30, 2016. Petitioner’s convictions became final ninety days
later – on or about February 28, 2017. See Jimenez v. Quarterman, 555
U.S. 113, 120 (2009) (a conviction becomes final when “the time for filing
a certiorari petition expires”); Lawrence v. Florida, 549 U.S. 327, 333
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(2007); S. Ct. R. 13(1). Accordingly, petitioner was required to file his
federal habeas petition by February 28, 2018, excluding any time during
which a properly filed application for state post-conviction or collateral
review was pending, in accordance with 28 U.S.C. § 2244(d)(2).
Petitioner did not seek state post-conviction or collateral review.
He dated his federal habeas petition on March 27, 2018 – approximately
one month after the one-year limitations period had expired.
Petitioner does not allege that the State created an impediment to
the filing of his habeas petition or that his habeas claims are based upon
newly-discovered evidence or newly-enacted, retroactively applicable
law. His habeas petition is therefore untimely under 28 U.S.C. § 2244(d).
The United States Supreme Court has confirmed that the one-year
statute of limitations is not a jurisdictional bar and is subject to equitable
tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). The Supreme Court
has explained that 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 prevented
timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)); see also Robertson v. Simpson, 624 F.3d 781, 783–84 (6th Cir.
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2010). A petitioner has the burden of demonstrating that he is entitled to
equitable tolling. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004).
“Typically, equitable tolling applies only when a litigant's failure to meet
a legally-mandated deadline unavoidably arose from circumstances
beyond that litigant's control.” Jurado v. Burt, 337 F.3d 638, 642 (6th Cir.
2003) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 560 (6th Cir. 2000)).
In his motion for equitable tolling, petitioner asserts that the oneyear period should be equitably tolled because he did not learn of the
Michigan Supreme Court’s November 30, 2016 decision denying leave to
appeal until March 1, 2018. A prisoner’s failure to receive a copy of a state
court’s decision can be a reason to equitably toll the limitations period.
See Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002). In such a case,
however, the prisoner may not “passively await decision” and instead
must act diligently both before and after receiving notice of the court’s
decision. Id.
Petitioner fails to allege or establish that he acted with sufficient
diligence to justify equitable tolling. State court records show that he
filed his application for leave to appeal with the Michigan Supreme Court
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on July 7, 2016. See People v. Duran, Mich. S. Ct. Dkt. No. 154060,
http:courts.mi.gov/opinions_orders/case_search/pages/default.aspx?Sear
chType=1&CaseNumber=154060&CourtType=1. The court issued its
decision on November 30, 2016. Id. There is no record of any inquiry by
petitioner until March 8, 2018, when the court sent him another copy of
its decision in response to his letter, which is consistent with petitioner’s
claim that he learned of the court’s decision on March 1, 2018. Id.
Waiting more than one year and seven months after filing his
application to inquire into the status of his case before the Michigan
Supreme Court was not diligent. See, e.g., Robinson v. Easterling, 424 F.
App’x 438, 443 (6th Cir. 2011) (waiting one year and six months between
inquiries was not reasonably diligent); Sadler v. Michigan, No. 15-12437,
2016 WL 4437669, *4-5 (E.D. Mich. Aug. 23, 2016) (waiting over two
years to check on status of case was not diligent); Johnson v. Bergh, No.
13-CV-13828, 2013 WL 5913438, *3 (E.D. Mich. Oct. 31, 2013) (same);
Campbell v. Woods, No. 2:11-CV-00015, 2011 WL 3739361, *1 (W.D.
Mich. Aug. 24, 2011) (adopting magistrate judge's report denying
equitable tolling where petitioner waited one year and six months to
check on his Michigan Supreme Court appeal); see also Keeling v.
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Warden, 673 F.3d 452, 463-64 (6th Cir. 2012) (discussing cases where
equitable tolling was denied due to prisoner’s failure to monitor status of
appeal); Elliot v. Dewitt, 10 F. App’x 311, 313 (6th Cir. 2001) (denying
equitable tolling where prisoner failed to monitor his case). Moreover,
petitioner offers no explanation as to how he learned of the court’s
decision or why he did not inquire into the status of his appeal sooner.
Petitioner thus fails to show that he acted with reasonable diligence in
monitoring the status of his appeal before the Michigan Supreme Court
so as to warrant equitable tolling of the one-year period.1
Additionally, the fact that petitioner is untrained in the law, is (or
was) proceeding without a lawyer or other legal assistance, and/or may
have been unaware of the statute of limitations for a period of time does
not warrant tolling. See Keeling, 673 F.3d at 464 (pro se status is not an
extraordinary circumstance); Allen, 366 F.3d at 403 (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
1The
Court notes petitioner’s 26-day delay in submitting his habeas petition to prison
officials for mailing after learning of the Michigan Supreme Court’s decision, while
not excessively dilatory, was also not particularly diligent given that he raises the
same claims presented to the state courts on direct appeal in his habeas petition.
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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) (lack of legal assistance does not justify
tolling); Sperling v. White, 30 F. Supp. 2d 1246, 1254 (C.D. Cal. 1998)
(citing cases stating that ignorance of the law, illiteracy, and lack of legal
assistance do not justify tolling). Petitioner fails to demonstrate that he
is entitled to equitable tolling under Holland.
Both the United States Supreme Court and the United States Court
of Appeals for the Sixth Circuit have held that a credible claim of actual
innocence may equitably toll the one-year statute of limitations.
McQuiggin v. Perkins, 569 U.S. 383, 399-400 (2013); Souter v. Jones, 395
F.3d 577, 588-90 (6th Cir. 2005). As explained in Souter, to support a
claim of actual innocence, a petitioner in a collateral proceeding “must
demonstrate that, in light of all the evidence, it is more likely than not
that no reasonable juror would have convicted him.” Bousley v. United
States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298,
327-28 (1995)); see also House v. Bell, 547 U.S. 518, 537–39 (2006). A valid
claim of actual innocence requires a petitioner “to support his allegations
of constitutional error with new reliable evidence – whether it be
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exculpatory scientific evidence, trustworthy eyewitness account, or
critical physical evidence – that was not presented at trial.” Schlup, 513
U.S. at 324. Furthermore, actual innocence means “factual innocence, not
mere legal insufficiency.” Bousley, 523 U.S. at 623. In keeping with
Supreme Court authority, the Sixth Circuit has recognized that the
actual innocence exception should “remain rare” and “only be applied in
the ‘extraordinary case.’” Souter, 395 F.3d at 590 (quoting Schlup, 513
U.S. at 321).
Petitioner makes no such showing. His assertion that his habeas
claims have merit does not establish his actual innocence. See, e.g., Craig
v. White, 227 F. App’x 480, 481 (6th Cir. 2007). Moreover, his own
conclusory assertion of innocence is insufficient to support an actual
innocence claim. A “reasonable juror [or fact-finder] surely could discount
[a petitioner’s] own testimony in support of his own cause.” McCray v.
Vasbinder, 499 F.3d 568, 573 (6th Cir. 2007) (citing cases). Petitioner
fails to establish that he is entitled to equitable tolling of the one-year
period. His habeas petition is therefore untimely and must be dismissed.
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IV.
Conclusion
For the reasons set forth above, the habeas petition is untimely and
petitioner is not entitled to equitable tolling of the one-year period.
Accordingly, the petition for habeas corpus is DISMISSED WITH
PREJUDICE. Given this determination, petitioner’s motions for
equitable tolling and appointment of counsel are also DENIED.
Before petitioner may appeal the Court's decision, 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 district 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. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
When a district court denies relief on procedural grounds without
addressing the merits, a certificate of appealability should issue if it is
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
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was correct in its procedural ruling. Id. In this case, jurists of reason
could not find the procedural ruling that the habeas petition is untimely
debatable. Accordingly, a certificate of appealability is DENIED.
Lastly, an appeal from this decision cannot be taken in good faith.
See Fed. R. App. P. 24(a). Accordingly, petitioner is DENIED leave to
proceed in forma pauperis on appeal.
IT IS SO ORDERED.
Dated: August 6, 2018
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 August 6, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
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