Spice #208756 v. Davids
OPINION; signed by District Judge Hala Y. Jarbou (aks)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
DONALD ALEXANDER SPICE,
Case No. 1:21-cv-180
Honorable Hala Y. Jarbou
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
The Court conducted a preliminary review of the petition under Rule 4 of the Rules Governing
§ 2254 Cases. The Court concluded that Petitioner had failed to timely file his petition and allowed
Petitioner 28 days to show cause why his petition should not be dismissed as untimely. (Op. and
Order, ECF Nos. 3, 4.) Petitioner responded on March 26, 2021. (ECF No. 5.)
In the March 2, 2021 opinion, the Court also determined that even if Petitioner’s
habeas claim were timely, it would be properly dismissed because the claim is procedurally
defaulted and not cognizable on habeas review. Petitioner’s response to the order to show cause
seeks reconsideration of those determinations as well.
Cause for the untimely petition
The Court set out a detailed procedural history of Petitioner’s prosecution and his
attempts to obtain the trial transcripts in the March 2, 2021 opinion. That opinion is incorporated
herein by reference. The salient dates are summarized below.
Petitioner’s judgment of sentence was entered in the Kent County Circuit Court on
July 13, 2016. He did not appeal the judgment of sentence. Petitioner notes that he did not have
the necessary form, that he requested a copy of the form, but was denied the copy for lack of funds
on August 12, 2016. A review of Petitioner’s account statement during that time indicates that he
may not have had the funds that day, but he had sufficient funds for the copy costs just four days
later. Nonetheless, Petitioner did not file an appeal as of right within the 42-day deadline or an
application for leave to appeal within the six-month deadline.
After the deadlines for a timely appeal as of right or by leave had passed, Petitioner
commenced a campaign to obtain, at public expense, transcripts of the trial proceedings. On March
7, 2018, the trial court denied Petitioner’s request for transcripts because he had failed to
demonstrate good cause. Petitioner filed a delayed application for leave to appeal the denial on
December 10, 2018. The court of appeals denied leave because the application was tardy.
Petitioner then sought leave to appeal that decision in the Michigan Supreme Court. That court
denied leave by order entered July 29, 2019. Petitioner then filed a petition for certiorari in the
United States Supreme Court which was denied on April 6, 2020.
On February 25, 2021, the Court received the habeas petition. It was postmarked
on February 23, 2021. Petitioner did not provide the date that he signed the petition or the date
that he handed the petition over to prison authorities for mailing, even though the habeas corpus
petition form required by the Court called for Petitioner to provide that information. Petitioner
signed his brief, however, on October 26, 2020. In Petitioner’s response, he indicates he mailed
the petition on February 22, 2021. That is the earliest possible date Petitioner “filed” his petition.
Petitioner raises only one issue in his petition:
Whether Spice was denied protections afforded by the United States
Constitution as formulated by United States Supreme Court precedent,
when [the] trial court denied Spice any of the requested transcripts,
including the jury trial, for use in a post-conviction appeal, based solely on
Spice’s indigency, despite showing “good cause” by specifically
articulating alleged errors, where error occurred, and supporting case law,
after the state had denied Spice the ability to file an appeal of right, for lack
of 10¢ in his prison account, to purchase an appeal of right form?
(Pet’r’s Br., ECF No. 2, PageID.14.) Thus, Petitioner challenges only the state courts’ refusal to
provide him transcripts.
The Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA) provides a one-year period of limitation for habeas corpus actions:
(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
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 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;
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
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).
In most cases, the period of limitations runs from the date the judgment became
final. Petitioner’s judgment became final on January 13, 2017, six months after his judgment of
conviction and sentence was entered. That was the last day he could timely seek review of his
judgment of conviction and sentence. See Mich. Ct. R. 7.205(G). Thus, one year later, on January
13, 2018, Petitioner’s period of limitation expired.
In the opinion and order inviting Petitioner to show cause for his late filing, the
Court identified three ways Petitioner might demonstrate a timely filing despite his failure to file
by January 13, 2018: (1) statutory tolling during the pendency of a collateral motion challenging
his convictions or sentences; (2) equitable tolling; and (3) a claim of actual innocence rendering a
timeliness dismissal manifestly unjust. Petitioner does not claim actual innocence; but he does
make statements that at least implicate statutory and equitable tolling. Petitioner also invokes a
fourth possibility; he suggests that the period of limitation did not begin to run when the judgment
became final, as provided by § 2244(d)(1)(A), because he was prevented from filing by state
action. Petitioner suggests instead that the period of limitation began to run later, after the
impediment to filing was removed, as provided by § 2244(d)(1)(B).
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”). Although Petitioner has diligently sought production of
his trial transcripts from January of 2017 through April of 2020, when the United States Supreme
Court denied his petition for certiorari, that effort is not “a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim.” Indeed, a
motion seeking transcripts is a textbook example of a post-conviction motion that is not an
application for collateral review and, thus, does not toll the period of limitation under the statute.
See, e.g., Johnson v. Randle, 28 F. App’x 341, 343 (6th Cir. 2001); Lancaster v. Alameida, 51 F.
App’x 765, 766 (9th Cir. 2002); May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003). Only “a
judicial reexamination of a judgment or claim in a proceeding outside of the direct review process”
would qualify as a collateral review of the judgment. Wall v. Kholi, 562 U.S. 545, 553 (2011).
Petitioner’s motions sought transcripts, not a collateral review of his judgment.
Certainly, with the transcripts in hand, he could initiate a request for collateral review, but the
requests for transcripts were not, in and of themselves, requests for such review. That is so even
though Petitioner, to establish “good cause,” described potential challenges he might collaterally
raise. Indeed, Petitioner made clear that he did not believe he could mount his collateral challenges
unless and until the court provided the trial transcripts.
Moreover, even if the motion seeking free transcripts sufficed to statutorily toll the
period of limitation, it would not suffice to toll the period long enough to render the petition timely.
The statute tolls the period only so long as a “properly filed application . . . is pending.”
Petitioner’s application for leave to appeal from the denial of his motion for transcripts was not
“properly filed” as required by § 2244(d)(2) to toll. “Properly filed” means that the document’s
delivery and acceptance are in compliance with the applicable laws and rules
governing filings. These usually prescribe, for example, the form of the document,
the time limits upon its delivery, the court and office in which it must be lodged,
and the requisite filing fee.
Artuz, 531 U.S. at 8. Petitioner’s application for leave to appeal was dismissed “because appellant
failed to file the application within the time period required by MCR 7.205(G)(3).” (Mich. Ct.
App. Ord., ECF No. 2-12, PageID.107.) This type of deficiency in filing renders Petitioner’s
application for leave to appeal not “properly filed” for purposes of § 2244(d)(2).
Petitioner’s motion seeking the production of transcripts at public expense
remained pending until the time for filing his application for leave to appeal to the Michigan Court
of Appeals expired. Holbrook v. Curtin, 833 F.3d 612 (6th Cir. 2016). The last day Petitioner
could timely file his application for leave to appeal, and, thus, the last day Petitioner’s motion was
properly filed and pending, was September 7, 2018. Petitioner did not file his petition until more
than two years after that date. Thus, even if the motion for transcripts tolled the period of
limitation, his petition was still untimely.
Even if the motion for transcripts tolled the period of limitation and even if
Petitioner’s properly filed motion remained pending despite the late filing of his application for
leave to appeal to the Michigan Court of Appeals, his petition was still untimely. The Michigan
Supreme Court denied Petitioner’s application for leave to appeal on July 29, 2019. Thereafter,
by any definition, the motion was no longer pending and could no longer toll the period of
The period of tolling while a motion for collateral review is pending does not extend
quite as far as the point in time at which a judgment becomes final on direct. The judgment
becomes final on the later of 90 days after the Michigan Supreme Court denies leave to appeal and
the date the United States Supreme Court denies the petition for certiorari or decides the granted
petition. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
But, for a post-judgment motion seeking collateral review (or, in this case, seeking
transcripts at public expense), Petitioner does not get the benefit of tolling during the 90 days he
could timely file a petition for certiorari, during the time such a petition is pending, or until a
granted petition is decided. Instead, on collateral review, the statute of limitations is tolled from
the filing of an application for state post-conviction or other collateral relief until a decision is
issued by the state supreme court. Lawrence v. Florida, 549 U.S. 327 (2007). The statute is not
tolled during the time that a Petitioner petitions for a writ of certiorari in the United States Supreme
Court. Id. at 332.
The period of statutory tolling, if such a period existed at all, would have ended, at
the very latest, on July 29, 2019. One year thereafter, on July 29, 2020, the period of limitation
expired. Thus, even in the most favorable possible interpretation of statutory tolling, the petition
In response, Petitioner contends that the Kent County Circuit Court order denying
his motions for transcripts was invalid because it was not dated. For that reason, Petitioner
contends that the motions “are still pending.” (Pet’r’s Response, ECF No. 5, PageID.138.)
That reasoning, of course, would afford Petitioner no relief because the motion for
transcripts is not a motion that tolls the period of limitation under the statute. Moreover, whether
or not a properly filed application for collateral review is pending is determined by state law. See,
e.g., Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“What we intimated in Saffold we now hold:
When a postconviction petition is untimely under state law, ‘that is the end of the matter’ for
purposes of § 2244(d)(2).”) (emphasis added).
The court of appeals’ determination that
Petitioner’s application for leave to appeal was untimely “is the end of the matter.” The decision
of the state courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464
U.S. 78, 84 (1983); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly
held that a state court’s interpretation of state law, including one announced on direct appeal of
the challenged conviction, binds a federal court sitting in habeas corpus.”). Moreover, the court
of appeals could not conclude that the time for appealing the order denying transcripts had passed
without necessarily concluding that the order had in fact been properly entered.1
That result is not surprising in that the factual premise of Petitioner’s argument is not correct. He contends that the
order is invalid because it is not dated. The order in the Kent County Circuit Court file, however, is stamped “filed”
on March 7, 2018. That is not simply the docket entry, as Petitioner suggests, it is on the document itself.
determination also binds this Court. Thus, Petitioner’s contention that his collateral motions are
still pending is simply wrong.
In summary, Petitioner’s motion for transcripts does not entitle him to statutory
tolling and, even if it did, and assuming the longest possible statutory tolling period, the petition
is still untimely.
In the Court’s opinion inviting Petitioner to show cause, the Court reviewed the
materials Petitioner had filed to date and concluded that he had not shown any reason that the
statute of limitations should be equitably tolled. In response, Petitioner mentions the words
“equitable tolling” and offers a colorable reason to equitably toll the period of limitations from
October of 2020 to February of 2021 based on prison lockdowns because of the COVID-19 threat.
But, beyond that, he focuses entirely on his claim that his appeal from the order denying transcripts
was, in fact, timely. That argument offers no ground to equitably toll the period of limitation.
A petitioner bears the burden of showing that he is entitled to equitable tolling.
Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Sixth Circuit repeatedly has cautioned that
equitable tolling relief should be granted “sparingly.” See, e.g., Ata v. Scutt, 662 F.3d 736, 741
(6th Cir. 2011), Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006); Souter v. Jones, 395
F.3d 577, 588 (6th Cir. 2005); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). A petitioner
seeking equitable tolling must show: “‘(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) (citing Pace, 544 U.S. at 418).
A prisoner’s lack of access to transcripts is not an extraordinary circumstance
warranting equitable tolling.
See Hall v. Warden, 662 F.3d 745, 750–51 (6th Cir. 2011).
Moreover, the fact that Petitioner is untrained in the law, was proceeding without a lawyer, or may
have been unaware of the statute of limitations does not warrant tolling. See Keeling v. Warden,
Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012) (“Keeling’s pro se status and lack of
knowledge of the law are not sufficient to constitute an extraordinary circumstance and excuse his
late filing.”); Allen, 366 F.3d at 403 (“‘[I]gnorance of the law alone is not sufficient to warrant
equitable tolling.’”) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)).
In Ata, 662 F.3d at 741–42, the Sixth Circuit held that mental incompetence may
be an extraordinary circumstance within the meaning of Holland, 560 U.S. at 631. Merely stating
that a petitioner is mentally ill or incompetent, however, is not enough. To prove mental
incompetence that would toll the statute of limitations, “a petitioner must demonstrate that (1) he
is mentally incompetent, and (2) his mental incompetence caused his failure to comply with the
AEDPA’s statute of limitations.” Ata, at 742. “[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. In addition, the court applied the standard set forth in Schriro
v. Landrigan, 550 U.S. 465, 474–75 (2007), to determine whether the petitioner has made a
sufficient showing to warrant an evidentiary hearing. An evidentiary hearing is only required
when the petitioner’s allegations are sufficient to support equitable tolling and the assertions are
not refuted by the record or otherwise without merit. Ata, at 742. Petitioner has offered nothing
in his response that suggests that mental illness or incompetence interfered with Petitioner’s filing
of his habeas petition. Indeed, Petitioner’s ability to litigate his transcript issue all the way to the
Supreme Court suggests that he was not hindered.
The COVID-19 lockdown might be considered an extraordinary circumstance; but
it did not “prevent timely filing.” Holland, 560 U.S. at 649. The petition was already almost
three years overdue, and even under the most generous interpretation of the facts and law at least
three months overdue, when Petitioner claims the COVID-19 shutdown impacted his ability to
complete and file the petition. “Equitable tolling, like statutory tolling, does not operate to revive
an expired limitations period.” Barnes v. Harry, No. 5:16-cv-13944, 2019 WL 5895826, at *6
(E.D. Mich. Nov. 12, 2019) (collecting cases); see also Downs v. McNeil, 520 F.3d 1311, 1325
(11th Cir. 2008). Therefore, equitable tolling does not render the petition timely.
Removal of a state impediment to filing
Petitioner contends that the state impeded his filing and, therefore, under 28 U.S.C.
§ 2244(d)(1)(B) the period of limitation should run from the date the impediment was removed.
The impediment Petitioner identifies, however, is not an impediment to the timely filing of his
petition, it was an impediment to the timely filing of his application for leave to appeal to the
Michigan Court of Appeals. (Pet’r’s Response, ECF No. 5, PageID.139.) Petitioner claims he
gave the pleading to prison officials to mail within the deadline. As noted above, however, the
court of appeals determination as to the timeliness of Petitioner’s appeal is a state law issue that
was conclusively decided against Petitioner by the Michigan Court of Appeals. Moreover, even
if the court of appeals erred with regard to the timeliness of Petitioner’s appeal, Petitioner does not
explain how the prison official’s failure to mail Petitioner’s appeal papers to the state court of
appeals in 2018 impeded him in filing his habeas petition. Accordingly, the alternative period of
limitation commencement date offered by § 2244(d)(1)(B) does not afford Petitioner any relief.
Procedural default and habeas review cognizability
Although the Court directed Petitioner to address the timeliness of his petition,
Petitioner’s response also speaks to the Court’s alternative determinations that review of
Petitioner’s claim is barred by his procedural default and raises an issue that is not cognizable on
habeas review. The Court considers Petitioner’s challenges to those determinations as a motion
for reconsideration under Federal Rule of Civil Procedure 54(b).
Under Rule 54(b), a non-final order is subject to reconsideration at any time before
entry of a final judgment. Id.; see also ACLU v. McCreary Cnty., 607 F.3d 439, 450 (6th Cir.
Western District of Michigan Local Civil Rule 7.4(a) provides that “motions for
reconsideration which merely present the same issues ruled upon by the court shall not be granted.”
Further, reconsideration is appropriate only when the movant “demonstrate[s] a palpable defect by
which the court and the parties have been misled . . . [and] that a different disposition of the case
must result from a correction thereof.” Id.
Petitioner indicates his disagreement with the Court’s conclusion regarding
procedural default. He claims he has established cause for his failure to timely file his appeal in
the Michigan Court of Appeals. Petitioner submitted with his petition and supporting brief a
Disbursement Authorization form which purports to be the disbursement authorization for his
appeal of the trial court’s order denying his requests for transcripts. (ECF No. 2-5, PageID.86.) It
is dated April 16, 2018. Petitioner does not explain how the disbursement form demonstrates
cause. The appeal filing that was rejected as untimely was filed in December 2018. Even if
Petitioner prepared an application for leave to appeal in April of 2018 that was not mailed as he
requested, he had months to correct the problem. Petitioner was no stranger to the appellate
process in Michigan.
=0&PartyOpenOnly=0 (visited Mar. 30, 2021). Moreover, these are exactly the arguments that
Petitioner raised in his petition and supporting brief initially and that the Court rejected. He has
presented nothing new and nothing that might be characterized as a palpable defect. Accordingly,
the Court will not reconsider its earlier determination that Petitioner’s claim regarding transcripts
is procedurally defaulted.
Even if Petitioner’s claim were not procedurally defaulted, it would still be properly
dismissed because it is not cognizable on habeas review. Petitioner claims that he is entitled to
relief under Mich. Ct. R. 6.433(C) or, if the rule does not require relief, that denial of relief violates
his due process and equal protection rights.
Petitioner’s claim that the state did not follow its own rule is not cognizable on
habeas review. The extraordinary remedy of habeas corpus lies only for a violation of the
Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle, 502 U.S. at 62,
whether or not a state court correctly applied its own law “is no part of the federal court’s habeas
review of a state conviction . . . [for] it is not the province of a federal habeas court to re-examine
state-court determinations on state-law questions.” Id. at 67–68. As noted above, the decision of
the state courts on a state-law issue is binding on a federal court. See Wainwright, 464 U.S. at 84;
see also Bradshaw, 546 U.S. at 76. The state court’s decision that the rule did not entitle Petitioner
to post-conviction transcripts at government expense, therefore, is axiomatically correct on habeas
In Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1986), the court concluded that a habeas
petition must directly dispute the fact or duration of confinement.” Id. at 248. That the ultimate
goal might be release from confinement was not sufficient if “the result of the specific issues before
[the court was] not in any way related to the confinement.” Id. Petitioner’s attack on the state
court’s rejection of his post-conviction request for free transcripts is likewise not cognizable on
habeas review. That claim does not seek immediate or quicker release from custody, it simply
seeks transcripts, because the denial of such transcripts, Petitioner contends, is unconstitutional.
That relief might be available in an action under 42 U.S.C. § 1983, but it is not available under 28
U.S.C. § 2254. Petitioner’s claim for the unconstitutional denial of free transcripts does not
warrant habeas relief.
Petitioner contends the Court erred. He points to the decisions in Sanders v. Lafler,
618 F. Supp. 2d 724 (E.D. Mich. 2009), and Dorn v. Lafler, 601 F.3d 439 (6th Cir. 2010), as
demonstrating that denials of appellate process are proper subjects of habeas review. Sanders
concerned the denial of appointment of appellate counsel for direct review of a conviction and
sentence. Dorn, likewise, concerned interference with the petitioner’s filing of an appeal as of
right from the judgment of conviction and sentence. Both cases involved the denial of rights that
called into question the validity of the petitioners’ convictions and sentences. If Petitioner’s claim
were like Sanders’s claim or Dorn’s claim, it would be cognizable on habeas review. Petitioner’s
claim, however, involves collateral proceedings and, even if he prevailed—i.e., if the Court
concluded Petitioner was constitutionally entitled to his trial transcripts at government expense—
it would not call into question the validity of his convictions or sentences. Petitioner’s citations to
Sanders and Dorn do not demonstrate a palpable defect in the Court’s decision. Accordingly,
reconsideration is not warranted.
Certificate of Appealability
The Court must also determine whether a certificate of appealability should be
granted. A certificate should issue if Petitioner has demonstrated a “substantial showing of a denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has
disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d
466, 467 (6th Cir. 2001) (per curiam). Rather, the district court must “engage in a reasoned
assessment of each claim” to determine whether a certificate is warranted. Id.
Petitioner’s application is untimely and, thus, barred by the statute of limitations.
Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), when a habeas petition is denied on
procedural grounds, a certificate of appealability may issue only “when the prisoner shows, at
least,  that jurists of reason would find it debatable whether the petition 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.” Both showings must be made to warrant the
grant of a certificate. Id.
Reasonable jurists could not find it debatable whether Petitioner’s application was
Petitioner application is also barred by procedural default and fails to raise an issue
that is cognizable on habeas review. The Court finds that reasonable jurists could not conclude
that this Court’s dismissal of Petitioner’s claims on these grounds was debatable or wrong.
Therefore, a certificate of appealability will be denied.
Moreover, although the Court concludes that Petitioner has failed to demonstrate
that he is in custody in violation of the Constitution and has failed to make a substantial showing
of the denial of a constitutional right, the Court does not conclude that any issue Petitioner might
raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).
Petitioner has failed to show cause to excuse the tardy filing of his habeas petition
and he has failed to demonstrate a palpable defect in the Court’s determinations that the claim
raised in the petition is barred by procedural default and not cognizable on habeas review.
Therefore, the Court will dismiss the petition as untimely, barred by procedural default, and not
cognizable on habeas review. Additionally, the Court will deny a certificate of appealability. The
Court will enter an order and judgment accordingly, dismissing the petition with prejudice,
denying a certificate of appealability, and denying Petitioner’s requests for reconsideration.
March 31, 2021
/s/ Hala Y. Jarbou
HALA Y. JARBOU
UNITED STATES DISTRICT JUDGE
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