Burrell #383328 v. Mackie
OPINION AND ORDER denying petition ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
JEREMY L. BURRELL, 383328,
Hon R. Allan Edgar
United States District Judge
OPINION AND ORDER
Petitioner Jeremy Burrell is incarcerated at the Baraga Maximum Correctional Facility
(AMF). Petitioner is challenging his August 10, 2007, jury convictions for assault with intent to
commit murder, felon in possession of a firearm, and possession of a firearm during the
commission of a felony. The Michigan Court of Appeals denied Petitioner=s appeal on March 17,
2009, as did the Michigan Supreme Court on September 11, 2009. Petitioner filed a motion for
relief from judgment on September 10, 2010, which the state trial court denied on September 30,
2011. Petitioner=s subsequent appeal was denied by the Michigan Court of Appeals on September
5, 2012, and by the Michigan Supreme Court on April 29, 2013. Petitioner took no further action
until he filed his habeas corpus application on or about April 29, 2014.1
On May 26, 2015, Respondent Thomas Mackie filed a motion for summary judgement,
arguing that Petitioner’s application is barred by the one-year statute of limitations. Docket #14.
Petitioner has not responded to this motion. After reviewing the motion and amended petition,
this Court concludes that 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). Section 2244(d)(1) provides:
For purposes of this opinion, I have given Petitioner the benefit of the earliest possible filing date. See
Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed
under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 F. App=x 497, 498 n.1 (6th
(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
(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 Aa 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 Aproperly filed@).
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
Athe 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 Petitioner’s
amended petition, he appealed his conviction to the Michigan Court of Appeals and the Michigan
Supreme Court. The Michigan Supreme Court denied his application on September 11, 2009.
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 ninety-day 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). Here,
the ninety-day period expired on December 11, 2009, which is when the one-year limitations
period started to run.
On September 14, 2010, Petitioner signed his motion for relief from judgment, which
started to toll the one-year limit. When Petitioner signed his motion for relief, he used 277 days,
leaving him with eighty-eight days to file his petition after tolling stops. Tolling stopped on April
29, 2013, when the Michigan Supreme Court denied Petitioner’s delay application for leave to
appeal Petitioner’s motion for reconsideration. Plaintiff had until July 26, 2013, to file his
petition for habeas relief. However, Petitioner took no further action to challenge the above
convictions until he filed the instant habeas corpus action on April 29, 2014, well after the
limitations period expired.
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. Petitioner had fair notice and an adequate opportunity to respond to this motion.
The Court reviewed the amended complaint and attachments, and concludes that Petitioner 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; see also Craig v. White, 227 F. App=x 480, 482 (6th Cir. 2007); Harvey
v. Jones, 179 F. App=x 294, 299-300 (6th Cir. 2006); Martin v. Hurley, 150 F. App=x 513, 516 (6th
Cir. 2005); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (A[I]gnorance 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.
In McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (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 A>it is more likely than not that no reasonable
juror would have convicted [the petitioner].=@ McQuiggin, 133 S. Ct. at 1935 (quoting Schlup, 513
U.S. at 329 (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 1936.
In the instant case, Petitioner fails to provide evidence that he is actually innocent.
Schlup, 513 U.S. at 329. Therefore, Petitioner is not excused from the statute of limitations under
28 U.S.C. ' 2244(d)(1). His habeas petition therefore is time-barred.
In summary, the Court finds that Petitioner’s habeas petition is time-barred and will be
dismissed with prejudice. In addition, if Petitioner should choose to appeal this action, the Court
must 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 (6th Cir. Aug.27, 2001).
Each issue must be considered under the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” 529 U.S. at 484. The Court concludes that reasonable
jurists could not find that a dismissal of each of Petitioner's claims was debatable or wrong. This
Court DENIES Petitioner a certificate of appealability as to each of the issues presented in this
For the same reasons that the Court has dismissed this action, the Court will certify
pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24 that any appeal by petitioner from the
Court’s decision and judgment would be frivolous and not taken in good faith. Therefore, any
application by Petitioner for leave to proceed in forma pauperis on appeal is hereby DENIED.
Petitioner’s request for post-conviction relief pursuant to 28 U.S.C. § 2254 is DENIED
AND DISMISSED WITH PREJUDICE. Docket #5. A judgment consistent with this
Opinion and Order will be entered.
/s/ R. Allan Edgar
R. Allan Edgar
United States District Court Judge
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