Bailey #237768 v. Palmer

Filing 6

REPORT AND RECOMMENDATION that the habeas corpus petition be denied as time-barred; objections to R&R due within 10 days; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

CHARLES BAILEY, Petitioner, v. CARMEN PALMER, Respondent. ____________________________________/ REPORT AND RECOMMENDATION This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). The Court may sua sponte dismiss a habeas action as time-barred under 28 U.S.C. § 2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006). After undertaking the review required by Rule 4, I conclude that the petition is barred by the one-year statute of limitations. Case No. 1:09-cv-163 Honorable Robert Holmes Bell

Discussion I. Factual Allegations

On May 9, 1994, Petitioner Charles Bailey pleaded guilty in the Muskegon County Circuit Court before Judge James M. Graves, Jr. to one count of possession of less than 25 grams of cocaine, reduced from the original charge of possession of less than 50 grams of cocaine. As part of the plea agreement, Petitioner also agreed to plead guilty and be sentenced consecutively in a separate case in the Muskegon County Circuit Court, then-pending before Judge Max Daniels. In the second case, Petitioner agreed to plead guilty to conspiracy to deliver less than 50 grams of cocaine, reduced from the original charge of conspiracy to deliver between 50 and 225 grams of cocaine. (Br. in Supp. of Pet., Ex. 1, docket #3-2 at 18-20.) Petitioner was sentenced on June 10, 1994 to a term of one to four years on the possession offense and on June 15, 1994 to three to twenty years on the conspiracy offense. In his habeas application, Petitioner challenges the conspiracy conviction and sentence. Petitioner did not appeal his convictions to either the Michigan Court of Appeals or the Michigan Supreme Court. On September 2, 2003, Petitioner filed in the Muskegon County Circuit Court a motion to amend the judgment of sentence in the conspiracy case. The circuit court denied the motion on October 24, 2003. More than four years later, on or about February 6, 2008, Petitioner filed a state habeas complaint in the Ionia County Circuit Court. The circuit court ordered the government to answer and, on March 31, 2008, denied the complaint. Petitioner filed a new habeas complaint in the Michigan Court of Appeals, which denied the complaint on October 1, 2008. Petitioner submitted a habeas complaint to the Michigan Supreme Court, but it was rejected as untimely on December 4, 2008. He filed his federal habeas application on February 23, 2009. -2-

II.

Statute of Limitations

Petitioner's application is barred by the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, PUB. L. NO. 104-132, 110 STAT. 1214 (AEDPA). Prior to enactment of the AEDPA, there was no defined period of limitation for habeas actions.1 Section 2244(d)(1) 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 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. 28 U.S.C. § 2244(d)(1). The running of the statute of limitations is tolled when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); see also Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (limiting the tolling provision to only State, and not Federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining "properly filed").

Previously, the only time limit was provided in Rule 9 of the Rules Governing § 2254 Cases, which allows d is m i s sa l of a petition only under circumstances where the state has been prejudiced by the delay in filing.

1

-3-

In most cases, § 2244(d)(1)(A) provides the operative date from which the one-year limitations period is measured. See Dodd v. United States, 545 U.S. 353, 357 (2005). Under that provision, 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." 28 U.S.C. § 2244(d)(1)(A). Petitioner was sentenced on the conspiracy charge on June 15, 1994. He did not file a direct appeal of his conviction to either the Michigan Court of Appeals or the Michigan Supreme Court. Where a petitioner has failed to properly pursue an avenue of appellate review available to him, the time for seeking review at that level is counted under § 2244(d)(1)(A). See 28 U.S.C. § 2244(d)(1)(A) (time for filing a petition pursuant to § 2254 runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review." ) (emphasis added). Petitioner had one year, until June 15, 1995, in which to a file delayed application for leave to appeal in the Michigan Court of Appeals. See MICH. CT. R. 7.205(F)(3). Because Petitioner failed to file a timely appeal to the Michigan Court of Appeals, no judgment on the merits of Petitioner's claims existed from which he could seek further review in the Michigan Supreme Court. Thus, Petitioner may not count the 56-day period for seeking leave to appeal to the Michigan Supreme Court. See MICH. CT. R. 7.302(C)(2). Nor may he count the 90-day period for filing a petition for a writ of certiorari. See United States v. Cottage 307 F.3d 494, 499 (6th Cir. 2002) (holding that, in the context of a motion under 28 U.S.C. § 2255, where a petitioner has failed to file a direct appeal to the court of appeals, the time for filing a petition does not include the 90-day period for seeking certiorari in the United States Supreme Court because no judgment exists from which he could seek further review in the United States Supreme Court); United States

-4-

v. Clay, 537 U.S. 522, 530-31 (2003) (holding that finality is analyzed the same under §§ 2244(d)(1)(A) and 2255). Consequently, Petitioner's conviction became final on June 15, 1995. Because enactment of the statute could extinguish otherwise viable claims, the Sixth Circuit has held that a petitioner whose conviction became final prior to the effective date of the AEDPA, April 24, 1996, has one year from the effective date in which to file his petition. Payton v. Brigano, 256 F.3d 405, 407 (6th Cir. 2001); Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001); Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). The grace period ended on April 24, 1997. Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000). Thus, absent tolling, the petition is timebarred. While 28 U.S.C. § 2244(d)(2) provides that the one-year statute of limitations is tolled while a duly filed petition for state collateral review is pending, the tolling provision does not "revive" the limitations period (i.e., restart the clock); it can only serve to pause a clock that has not yet fully run. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001). Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations. Id.; McClendon v. Sherman, 329 F.3d 490, 493 (6th Cir. 2003). Even where the post-conviction motion raises a claim of ineffective assistance of appellate counsel, the filing of the motion for relief from judgment does not revive the statute of limitations. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (citing McClendon, 329 F.3d 490). Because Petitioner's one-year period expired in 1997, his collateral motions filed in 2003 and 2008 do not serve to revive the limitations period. The one-year limitations period applicable to § 2254 is a statute of limitations subject to equitable tolling. See Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001) (holding that the one-year statute of limitations set forth in § 2254 and § 2255 are subject to equitable tolling). -5-

A petitioner bears the burden of showing that he is entitled to equitable tolling. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004); Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). The Sixth Circuit repeatedly has cautioned that equitable tolling should be applied "sparingly" by this Court. See Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006); Jurado, 337 F.3d at 642; Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); Dunlap, 250 F.3d at 1008-009. A petitioner seeking equitable tolling of the habeas statute of limitations has the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Lawrence, 549 U.S. 327, 335 (2007) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner has failed to raise equitable tolling or allege any facts or circumstances that would warrant its application in this case. The fact that Petitioner is untrained in the law, was proceeding without a lawyer, or may have been unaware of the statute of limitations for a certain period does not warrant tolling. See Allen, 366 F.3d at 403-04; Brown v. United States, 20 F. App'x 373, 375 (6th Cir. 2001) (citing United States v. Baker, 197 F.3d 211, 218-19 (6th Cir. 1999)); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) ("ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse [late] filing."). Accordingly, Petitioner is not entitled to equitable tolling of the statute of limitations. The Supreme Court has directed the District Court to give fair notice and an adequate opportunity to be heard before dismissal of a petition on statute of limitations grounds. See Day, 547 U.S. at 210. This report and recommendation shall therefore serve as notice that the District Court may dismiss Petitioner's application for habeas corpus relief as time-barred. The opportunity to file

-6-

objections to this report and recommendation constitutes Petitioner's opportunity to be heard by the District Judge. Recommended Disposition For the foregoing reasons, I recommend that the habeas corpus petition be denied because it is barred by the one-year statute of limitations. I further recommend that a certificate of appealability be denied. See Slack v. McDaniel, 529 U.S. 473 (2000).

Dated: March 9, 2009

/s/ Joseph G. Scoville United States Magistrate Judge

NOTICE TO PARTIES Any objections to this Report and Recommendation must be filed and served within ten days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn, 474 U.S. 140 (1985).

-7-