Anderson #434334 v. Davis

Filing 2

REPORT AND RECOMMENDATION re 1 that the action be dismissed; objections to R&R due within 10 days; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, cpl)

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

CHRISTOPHER ANDERSON, Petitioner, v. BARRY DAVIS, 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. 2:09-cv-104 Honorable Gordon J. Quist

Discussion I. Factual Allegations

Petitioner was convicted of one count of possession with intent to deliver, MICH. CO M P . LAWS § 333.7401, and one count of conspiracy to commit the same offense, MICH. COMP. LA W S § 750.157a, after a jury trial in Berrien County Circuit Court. On November 19, 2002, Petitioner was sentenced to concurrent terms of incarceration of 20 to 60 years and 20 to 30 years. (Pet. at 1.) Petitioner appealed his sentence to the Michigan Court of Appeals and it was affirmed on June 17, 2004. He then sought leave to appeal to the Michigan Supreme Court and was denied on May 31, 2005. On July 17, 2006, Petitioner filed a motion for relief from judgment with the Berrien County Circuit Court. It was denied on April 20, 2007. Petitioner then sought leave to appeal from the Michigan Court of Appeals and Michigan Supreme Court. His applications were denied on August 13, 2008 and January 27, 2009, respectively. Petitioner filed this application on May 4, 2009 and raised eight grounds for relief as follows: I. II. Petitioner's conviction is in violation of [the] double jeopardy clause Due Process [was] denied where state courts applied wrong standard of review Ineffective assistance of appellate counsel Ineffective assistance of [trial] counsel Prosecutorial misconduct denied Petitioner a fair trial Improper Drug Profile evidence violated [Petitioner's] right to [a] fair trial Petitioner [was] denied confrontation rights and [a] fair trial by [the] introduction of codefendant['s] hearsay statements

III. IV. V. VI. VII.

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VIII.

[A] fair trial and due process [was] denied by misleading, incorrect and prejudicial jury instructions.

(Pet. at 6, 7, 9, 10, 12-15.) 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

P r e v io u s l y, the only time limit was provided in Rule 9 of the Rules Governing § 2254 Cases, which allows d is m is s a l of a petition only under circumstances where the state has been prejudiced by the delay in filing.

1

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(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 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). According to paragraph nine of Petitioner's application, Petitioner appealed his conviction to the Michigan Court of Appeals and Michigan Supreme Court. The Michigan Supreme Court denied his application on May 31, 2005. Petitioner did not petition for certiorari to the United States Supreme Court. The one-year limitations period, however, did not begin to run until the 90day 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). The 90-day period expired on August 29, 2005. Therefore, absent tolling, Petitioner had one year to file his habeas application, or until August 29, 2006. Petitioner filed a motion for relief from judgment in the Berrien County Circuit Court on July 17, 2006. A properly filed application for state post-conviction review or other state collateral review tolls the statute of limitations during the period the application is pending. See 28 U.S.C. § 2244(d)(2). 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 writ of certoriari in the United States Supreme Court. Petitioner's motion for relief from judgment was filed after 321 days of the one-year habeas limitation period had passed. Petitioner's motion for relief from judgment was denied by the Circuit Court and he sought leave -4-

to appeal from both the Michigan Court of Appeals and Michigan Supreme Court. The statute of limitations began to run again on January 27, 2009, when the Michigan Supreme Court denied his application for leave to appeal. At that time, Petitioner had 44 days remaining in his limitations period. The statute expired on March 12, 2009. Petitioner filed his habeas petition on May 4, 2009. Thus, his application is time-barred. 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). 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 1008-09. 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. at 335 (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)); -5-

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 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).

/s/ Timothy P. Greeley TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE Dated: May 29, 2009

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).

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