Davidson #458405 v. Macauley
Filing
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OPINION; signed by Magistrate Judge Ray Kent (fhw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
BRIAN LEE DAVIDSON,
Petitioner,
v.
Case No. 1:24-cv-912
Honorable Ray Kent
MATT MACAULEY,
Respondent.
____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. As part
of a preliminary review of the petition under Rule 4 of the Rules Governing § 2254 Cases, the
Court noted that it appeared that Petitioner had failed to timely file his petition. (Op., ECF No. 5.)
The Court therefore entered an order directing Petitioner to show cause within 28 days why his
petition should not be dismissed as untimely. (Order, ECF No. 6.) More than 28 days have passed,
and Petitioner has not responded.
Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure,
Petitioner consented to proceed in all matters in this action under the jurisdiction of a United States
magistrate judge. (ECF No. 4.) Section 636(c) provides that “[u]pon the consent of the parties, a
full-time United States magistrate judge . . . may conduct any or all proceedings in a jury or nonjury
civil matter and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c).
This case is presently before the Court for preliminary review pursuant to 28 U.S.C. § 2253
and Rule 4 of the Rules Governing § 2254 Cases. The Court is required to conduct this initial
review prior to the service of the petition. Rule 4, Rules Governing § 2254 Cases.
Service of the petition on the respondent is of particular significance in defining a putative
respondent’s relationship to the proceedings. “An individual or entity named as a defendant is not
obliged to engage in litigation unless notified of the action, and brought under a court’s authority,
by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999).
“Service of process, under longstanding tradition in our system of justice, is fundamental to any
procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and
is required to take action in that capacity, only upon service of a summons or other authorityasserting measure stating the time within which the party served must appear and defend.” Id.
(citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons
continues to function as the sine qua non directing an individual or entity to participate in a civil
action or forgo procedural or substantive rights.” Id. at 351.
Rule 4, by requiring courts to review and even resolve the petition before service, creates
a circumstance where there may only be one party to the proceeding—the petitioner. Because
Respondent has not yet been served, the undersigned concludes that Respondent is not presently a
party whose consent is required to permit the undersigned to conduct a preliminary review of the
petition. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a
consent from the defendants[; h]owever, because they had not been served, they were not parties
to th[e] action at the time the magistrate entered judgment.”).1 Petitioner’s consent is sufficient to
permit the undersigned to conduct the Rule 4 review.
1
But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017)
(concluding that, when determining which parties are required to consent to proceed before a
United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the
United States Supreme Court considered in Murphy Bros. was nothing like the context of a
2
The Court conducts a preliminary review of the petition under Rule 4 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 also 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).
As noted above, the Court afforded Petitioner an opportunity to demonstrate why his
petition should not be dismissed as untimely. Petitioner failed to respond. Accordingly, the Court
will dismiss the § 2254 petition as untimely.
Discussion
I.
Factual Allegations
Petitioner Brian Lee Davidson is incarcerated with the Michigan Department of
Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan.
Petitioner is serving a life sentence, imposed on July 22, 2003, following his Kent County Circuit
screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c));
Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for
the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207
n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning
in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”).
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Court jury conviction for first-degree murder.2 See Offender Tracking Information System (OTIS),
https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=458405 (last visited Oct. 24,
2024).
Petitioner’s § 2254 petition is handwritten. In it, he appears to assert that the trial court
erroneously instructed the jury, “which caused [an] issue of double jeopardy.” (Pet., ECF No. 1,
PageID.2.) Petitioner also suggests that he is actually innocent, and that the trial court “skipped
over charging [procedures] of Petitioner’s case.” (Id., PageID.3.) Specifically, Petitioner avers that
the trial court never held a probable cause conference for his case. (Id., PageID.7.)
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 signed his petition on August 30, 2024. (Pet., ECF No. 1, PageID.10.) The petition was
received by the Court on September 6, 2024. Giving Petitioner the benefit of the earliest possible
filing date, see Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (citing Goins v. Saunders, 206
F. App’x 497, 498 n.1 (6th Cir. 2006)) (holding that the date the prisoner signs the document is
deemed under Sixth Circuit law to be the date of handing to officials), the Court will deem August
30, 2024, as the date Petitioner filed his habeas corpus petition.
2
The jury also convicted Petitioner of two counts of assault with a dangerous weapon (felonious
assault), and one count of unarmed robbery. Petitioner was sentenced to 2–4 years of imprisonment
for each of the felonious assaults, and 7 ½ years to 15 years of imprisonment for the unarmed
robbery. See OTIS, https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=458405
(last visited Oct. 27, 2024). Petitioner, however, is no longer in custody pursuant to those
sentences, as they were discharged on November 18, 2006, and November 18, 2017, respectively.
See id.
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II.
Statute of Limitations
Petitioner’s application appears to be 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). 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).
A.
Timeliness Under § 2244(d)(1)(A)
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.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed the judgment
of conviction to the Michigan Court of Appeals, and the court of appeals affirmed his convictions
and sentences on February 15, 2005. See People v. Davidson, No. 251205, 2005 WL 356325, at
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*1 (Mich. Ct. App. Feb. 15, 2005). Public dockets reflect that the Michigan Supreme Court rejected
Petitioner’s untimely application for leave to appeal on April 19, 2005. See Register of Actions,
People v. Davidson, No. 251205, https://www.courts.michigan.gov/c/courts/coa/case/251205 (last
visited Oct. 24, 2024). Therefore, Petitioner did not properly seek leave to appeal to the Michigan
Supreme Court.
Where a petitioner has failed to 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) (stating that the 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)). However, such a petitioner is not entitled to also count
the 90-day period during which he could have filed a petition for certiorari to the United States
Supreme Court. See Gonzalez v. Thaler, 565 U.S. 134, 152–53 (2012) (holding that, because the
Supreme Court can review only judgments of a state’s highest court, where a petitioner fails to
seek review in the state’s highest court, the judgment becomes final when the petitioner’s time for
seeking that review expires).
Under Michigan law, a party has 56 days in which to apply for leave to appeal to the
Michigan Supreme Court. See Mich. Ct. R. 7.305(C)(2). Accordingly, Petitioner’s conviction
became final on Tuesday, June 14, 2005. Petitioner had one year from that date,3 until June 14,
2006, to file his habeas application. Petitioner filed on August 30, 2024. Obviously, absent tolling,
Petitioner filed more than one year after the time for direct review expired.
3
The Sixth Circuit recently confirmed that the one-year period of limitation runs to and includes
the anniversary of the finality date. See Moss v. Miniard, 62 F.4th 1002, 1009–10 (6th Cir. 2023).
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B.
Statutory Tolling
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”). In his handwritten § 2254 petition, Petitioner does not
reference that he filed any applications for state post-conviction review. Moreover, the Michigan
appellate courts public dockets indicate that the only appeal Petitioner has ever pursued is the
direct appeal of his convictions and sentences. Thus, Petitioner is not entitled to statutory tolling
under § 2244(d)(2), and the limitations period expired on June 14, 2006.
C.
Equitable Tolling
The one-year limitations period applicable to § 2254 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)).
Petitioner does not raise any arguments regarding equitable tolling. The fact that Petitioner
is untrained in the law, is proceeding without an attorney, or may have been unaware of the statute
of limitations also does not warrant tolling. See Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d
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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 v. Yukins,
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)). Accordingly, Petitioner is not entitled
to equitable tolling of the statute of limitations.
D.
Actual Innocence
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 miscarriageof-justice exception. “’[A]ctual innocence’ is factual innocence.” Bousley v. United States, 523,
U.S. 614, 624 (1998).
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, although Petitioner baldly claims that he is actually innocent, he proffers
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. Moreover, Petitioner’s
present challenges to his conviction are based on an alleged lack of jurisdiction because the trial
court never conducted a probable cause conference. Such a claim does not relate to factual
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innocence. See, e.g., Logan v. Kelley, No. 15-3879, 2016 WL 11786288, at *2 (6th Cir. Apr. 4,
2016) (stating “the state court’s alleged lack of jurisdiction to try him does not . . . establish his
actual innocence”); Casey v. Tenn., 399 F. App’x 47, 48–49 (6th Cir. 2010) (holding that the
petitioner’s challenge to the trial court’s jurisdiction could not establish factual innocence, only
legal sufficiency, which does not justify relief under Schlup). 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).
E.
Timeliness Under § 2244 (d)(1)(B)–(D)
While Petitioner’s § 2254 petition is untimely under § 2244(d)(1)(A), that “subsection . . .
provides one means of calculating the limitation with regard to the ‘application’ as a whole . . .
judgment, but three others . . . require claim-by-claim consideration.” Pace, 544 U.S. at 416 n.6.
Petitioner does not allege that he was impeded from filing his § 2254 petition by State action, nor
does he rely upon a new right made retroactively applicable to cases on collateral review. Thus,
§§ 2244(d)(1)(B) and 2244(d)(1)(C) do not apply.
Petitioner also does not set forth any facts suggesting that § 2244(d)(1)(D) renders his
§ 2254 petition timely filed. As set forth above, that subsection provides that the limitations period
commences on “the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.” Under § 2244(d)(1)(D), the time
under the limitations period begins to run is when a petitioner knows, or through due diligence,
could have discovered, the important facts for his claims, not when the petitioner recognizes the
legal significance of the facts. See Redmond v. Jackson, 295 F. Supp. 2d 767, 771 (E.D. Mich.
2003) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). “The question under the provision
is not when prisoners first learned of the new evidence; it is when they should have learned of the
new evidence had they exercised reasonable care.” Townsend v. Lafler, 99 F. App’x 606, 608 (6th
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Cir. 2004). Section 2244(d)(1)(D) “does not convey a statutory right to an extended delay while a
petitioner gathers every possible scrap of evidence that might support his claim. Id. (quoting Sorce
v. Artuz, 73 F. Supp. 2d 292, 294-95 (E.D.N.Y. 1999)).” Id. “Rather, it is the actual or putative
knowledge of the pertinent facts of a claim that starts the clock running on the date on which the
factual predicate of the claim could have been discovered through due diligence, and the running
of the limitations period does not await the collection of evidence which supports the facts,
including supporting affidavits.” Id. (citing Tate v. Pierson, 177 F. Supp. 2d 792, 800 (N.D. Ill.
2001), and Flanagan v. Johnson, 154 F.3d 196, 198–99 (5th Cir. 1998)).
Furthermore, a habeas petitioner has the burden of proof in establishing that he exercised
due diligence in searching for the factual predicate of the habeas claims. Stokes v. Leonard, 36
Fed. Appx. 801, 804 (6th Cir. 2002). Unsupported and conclusory arguments are insufficient to
warrant application of § 2244(d)(1)(D). Redmond, 295 F. Supp. 2d at 772; Grayson v. Grayson,
185 F. Supp. 2d 747, 750-51 (E.D. Mich. 2002) (holding that a petitioner does not show how the
factual predicate could not have been discovered earlier if he fails to indicate the steps he took to
discover the claims). The key to deciding whether evidence is ‘newly discovered’ or only ‘newly
available’ is to ascertain when the defendant found out about the information at issue.” United
States v. Turns, 198 F.3d 584, 587 (6th Cir. 2000).
Here, Petitioner does not set forth any facts suggesting when he discovered the factual
predicate for his habeas claims. Petitioner, however, would have been well aware of the lack of
any probable cause conference while his criminal charges were still pending before the trial court.
Thus, based on the allegations set forth in Petitioner’s § 2254 petition, the limitations period
expired as of June 14, 2006.
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Petitioner has failed to show cause to excuse the tardy filing of his § 2254 petition. The
Court, therefore, will issue a judgment dismissing the petition with prejudice.
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.
It is filed more than one year after the underlying judgment became final and he offers neither
reason nor excuse why it is late. 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).
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Conclusion
The Court will enter an order denying a certificate of appealability and a judgment
dismissing the petition with prejudice as untimely.
Dated:
October 25, 2024
/s/ Ray Kent
Ray Kent
United States Magistrate Judge
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