Jones #842932 v. Schiebner

Filing 9

OPINION; signed by Judge Robert J. Jonker (elam)

Case 1:22-cv-01061-RJJ-RSK ECF No. 9, PageID.36 Filed 01/17/23 Page 1 of 10

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
CHRISTOPHER RASHAWN JONES,
Petitioner,
v.

Case No. 1:22-cv-1061
Honorable Robert J. Jonker

JAMES R. SCHIEBNER,
Respondent.

____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 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) (discussing that a 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 reviewing the petition as required by Rule 4, the Court concluded that the petition
appeared to be barred by the one-year statute of limitations. (Op., ECF No. 5.) Nonetheless, the
Court permitted Petitioner, by way of an order to show cause entered December 1, 2022, to have

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an opportunity to demonstrate why his petition should not be dismissed as untimely. On December
16, 2022, Petitioner filed a response (ECF No. 7) and a supporting affidavit (ECF No. 8).
Petitioner’s response fails to demonstrate cause for the late filing of his petition; therefore, the
Court will dismiss the petition as untimely.
Discussion
I.

Factual Allegations
Petitioner Christopher Rashawn Jones is incarcerated with the Michigan Department of

Corrections at the Muskegon Correctional Facility in Muskegon, Muskegon County, Michigan.
On November 22, 2017, following a six-day jury trial in the Macomb County Circuit Court,
Petitioner was convicted of armed robbery in violation of Mich. Comp. Laws § 750.529, use of a
firearm during the commission of a felony (felony-firearm), in violation of Mich. Comp. Laws
§ 750.227b, and first-degree felony murder, in violation of Mich. Comp. Laws § 750.316.
Additionally, on the first day scheduled for trial, Petitioner entered a guilty plea to a charge of
being a felon in possession of a firearm (felon-in-possession), in violation of Mich. Comp. Laws
§ 750.224f. On January 18, 2018, the court sentenced Petitioner as a third habitual offender, Mich.
Comp. Laws § 769.11, to concurrent prison terms of 5 to 10 years for felon-in-possession, 30 to
46 years for armed robbery, and life imprisonment for murder. Those terms were to be served
consecutively to a sentence of 2 years for felony-firearm.
On November 9, 2022, Petitioner filed his habeas corpus petition. Under Sixth Circuit
precedent, the application is deemed filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in
the prison mailing system on November 9, 2022. (Pet., ECF No. 1, PageID.11.)
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II.

Statute of Limitations
Petitioner’s habeas application is subject to 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). 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).
In most cases, § 2244(d)(1)(A) provides the operative date from which the one-year
limitations period is measured. 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.” Id. § 2244(d)(1)(A). Petitioner appealed the judgment of
conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan
Supreme Court denied his application on December 22, 2020. Petitioner did not petition for
certiorari to the United States Supreme Court. (See Pet., ECF No. 1, PageID.2.) The one-year
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limitations period, however, did not begin to run until the period in which Petitioner could have
sought review in the United States Supreme Court had expired. See Lawrence v. Florida, 549 U.S.
327, 332–33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Because the Michigan
Supreme Court entered the order denying discretionary review after March 19, 2020, but before
July 19, 2021, the period to file a petition for certiorari was 150 days.1 The 150-day period expired
on May 23, 2021.
Petitioner had one year from May 23, 2021, until May 23, 2022, to file his habeas
application. Petitioner, in his response, does not contest the Court’s determination of the date his
judgment became final, the date the period of limitation commenced running under
§ 2244(d)(1)(A), or the date it expired.
Petitioner filed his application on November 9, 2022. Obviously, to the extent the period
of limitation is measured with respect to the date the judgment became final, he filed more than
one year after the period of limitations began to run.
Petitioner’s response, however, invites the Court to look to a different subsection of
§ 2244(d)(1) for the appropriate commencement date for the period of limitation. Petitioner argues
that the state created an impediment to Petitioner’s filing for habeas relief. That argument
implicates the limitations period “start” date set forth in § 2244(d)(1)(B). Under that provision, if
Petitioner was prevented from filing by unconstitutional state action, the period beings to run when
the impediment is removed. The impediment that prevented Petitioner from filing is “the State of
Michigan’s failure to grant Petitioner access to the [Legal] Writer Program . . . [b]ecause Petitioner

1

See Rules of the Supreme Court of the United States-Miscellaneous Order addressing the
Extension of Filing Deadlines [COVID-19], 334 F.R.D. 801 (2020) (extending the period to file a
petition for certiorari from 90 days to 150 days for petitions due on or after March 19, 2020);
Miscellaneous Order Rescinding COVID-19 Orders, 338 F.R.D. 801 (2021) (rescinding the
extension for orders denying discretionary review issued on or after July 19, 2021).
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has a high school degree . . . .” (Pet’r’s Resp., ECF No. 7, PageID.25.) Petitioner claims that state
action violates the Constitution because it interferes with his access to the courts guaranteed by
the First Amendment.
The MDOC reports that “[t]he Legal Writer Program provides eligible prisoners in
Correctional Facilities Administration (CFA) institutions with legal assistance on matters relating
to their criminal conviction or conditions of confinement. Only prisoners not represented by
counsel who are unable to effectively help themselves by using the law library or other available
legal resources are eligible to receive Legal Writer Program services.” MDOC Policy Directive
05.03.116 ¶ S (eff. Apr. 5, 2021). The directive indicates that a prisoner is eligible to receive Legal
Writer Program services if he or she meets any of the following criteria:
1. Does not have a verified GED or high school diploma.
2. Does not speak, read, or write English.
3. Has a documented physical or mental impairment or a learning disability that may affect
their ability to use the law library to prepare and file a legible and coherent pleading.
4. Is undergoing reception center processing.
5. Is housed in any form of segregation other than temporary segregation.
6. Is housed in a Department operated inpatient medical unit.
7. Is housed in protective housing, or other non-traditional general population housing, that
does not allow for direct access to legal research materials as approved by the Deputy
Director or designee.
Id. ¶ T.
Petitioner does not offer any reason that he, specifically, required access to the legal writer
program to adequately access the habeas remedies afforded by this Court. Petitioner does not
suggest that he is somehow less able to read and understand library material because of some
limitation unique to him. Instead he argues, apparently, that inmates who cannot access the legal

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writer program, cannot meaningfully access the courts. Essentially, Petitioner contends that the
State of Michigan’s failure to provide legal writers for the prison population is always a violation
of the First Amendment right to access the courts.
Petitioner cites no federal authority supporting a constitutional requirement that all
prisoners be provided access to a prison legal writer program. The Court concludes, therefore, that
Petitioner has failed to show a state-created impediment that violates the Constitution.
Moreover, Petitioner has failed to show that the lack of access to the legal writer program
prevented him from timely filing his petition. He claims that he would have been able to timely
file if he had been allowed access to the legal writer program. (Pet’r’s Aff., ECF No. 8, PageID.32.)
It does not appear that Petitioner was ever granted access to the program, yet Petitioner was able
to file his petition and he was able to promptly respond to the Court’s order to show cause. He
apparently filed all of his pleadings in this case without legal writer program assistance. The
absence of that assistance, therefore, does not appear to have prevented his filing.
In short, Petitioner has failed to show that the State of Michigan’s exclusion of Petitioner
from the legal writer program was an impediment to the filing of the instant petition, he has failed
to show that the exclusion violated his constitutional rights, and he has failed to show that the
exclusion prevented him from filing the petition. The Court concludes, therefore, that the
alternative period of limitation provided by 28 U.S.C. § 2244(d)(1)(B) does not apply.
Petitioner suggests alternatively that he is entitled to tolling of the period of limitation.
(Pet’r’s Resp., ECF No. 7, PageID.27.) There are at least two types of tolling: statutory tolling and
equitable tolling.
The running of the statute of limitations is tolled by statute when “a properly filed
application for State post-conviction or other collateral review with respect to the pertinent

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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”). Petitioner does not claim that he filed
any applications for post-conviction review. (See Pet., ECF No. 1, PageID.3.)
The one-year limitations period is also subject to equitable tolling. See Holland v. Florida,
560 U.S. 631, 645 (2010). 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, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
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))).
Petitioner offers a couple of other considerations: at some point he tested positive for
COVID-19 (he does not identify the date), and he claims to suffer “recently . . . from symptoms
associated with ‘Long COVID’ i.e. cogn[i]tive issues/difficulties, memory los[s], brain-fog etc.”
(Pet’r’s Aff., ECF No. 8, PageID.31.) But he does not offer that as an extraordinary circumstance

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that hindered him during the limitations period; rather, he offers it to explain why it “is very
difficult to clearly recall” now what happened before, presumably during the period of limitation.
(Id., PageID.31–32.) The Court notes, however, that Petitioner has succeeded in overcoming his
recent cognitive difficulties, memory loss, and brain-fog sufficiently to file his petition and respond
to the order to show cause. No matter how extraordinary the COVID-19 pandemic or Petitioner’s
present struggles with long-COVID might be, the Court concludes that Petitioner has failed to
demonstrate that he was pursuing his rights diligently or that it was the pandemic or the recent
long-COVID symptoms that prevented timely filing of the petition. Accordingly, the Court
determines that Petitioner is not entitled to equitable tolling.
Finally, in McQuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court held that a
habeas petitioner who can show actual innocence under the rigorous standard of Schlup v. Delo,
513 U.S. 298 (1995), is excused from the procedural bar of the statute of limitations under the
miscarriage-of-justice exception. In order to make a showing of actual innocence under Schlup, a
Petitioner must present new evidence showing that “it is more likely than not that no reasonable
juror would have convicted [the petitioner.]” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513
U.S. at 327) (addressing actual innocence as an exception to procedural default). Because actual
innocence provides an exception to the statute of limitations rather than a basis for equitable
tolling, a petitioner who can make a showing of actual innocence need not demonstrate reasonable
diligence in bringing his claim, though a court may consider the timing of the claim in determining
the credibility of the evidence of actual innocence. Id. at 399–400.
In the instant case, even if Petitioner baldly claimed that he is actually innocent, he has
proffered no new evidence of his innocence, much less evidence that makes it more likely than not
that no reasonable juror would have convicted him. Schlup, 513 U.S. at 327, 329. Additionally, at

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trial, Petitioner did not claim that he was actually innocent. Instead, he argued that the shot that
killed the victim was accidental, such that he was guilty of involuntary manslaughter rather than
murder. People v. Mahaffey, Nos. 341267, 342112, 2019 WL 7206035, at *13 (Mich. Ct. App.
Dec. 26, 2019). Because Petitioner has wholly failed to provide evidence of his actual innocence,
he would not be excused from the statute of limitations under 28 U.S.C. § 2244(d)(1). His petition
therefore is time-barred.
III.

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, [1] that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and [2] 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 timely.
Petitioner does not contest the Court’s recounting of the procedural history and the relevant time
periods. Petitioner does not claim that he is actually innocent. Petitioner’s only contention is that
the state impeded his timely filing of a habeas petition by excluding him from the legal writer
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program, and he suggests that the impediment might warrant equitable tolling. For the reasons set
forth above, the Court concludes that Petitioner’s claim is simply wrong. Therefore, a certificate
of appealability will be denied. Nonetheless, 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).
The Court will enter an order denying a certificate of appealability and judgment denying
the petition with prejudice as untimely.

Dated:

/s/ Robert J. Jonker
Robert J. Jonker
United States District Judge

January 17, 2023

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