Bryant #463608 v. Woods

Filing 10

OPINION AND ORDER - denying and dismissing the petition ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
___________
REO BRYANT, 463608,
Petitioner,
vs.

No. 2:14-cv-225
Hon R. Allan Edgar
United States District Judge

JEFFREY WOODS,
Respondent.
_______________________________/
OPINION AND ORDER
Petitioner Reo Bryant is incarcerated at the Chippewa Correctional Facility (URF).
Petitioner pleaded guilty to the second-degree murder of his 9-month old son. On September 30,
2003, Bryant was sentenced to a prison term of twenty-five to fifty years. Petitioner filed a
motion for relief from judgment on October 14, 2013, which the state trial court denied on
November 4, 2013. Petitioner=s subsequent appeal was denied by the Michigan Court of Appeals
on January 30, 2014, and by the Michigan Supreme Court on September 5, 2014. Petitioner then
filed his habeas corpus application on or about October 23, 2014.1
On May 12, 2015, Respondent Jeffrey Woods filed a motion for summary judgement,
arguing that Petitioner’s application is barred by the one-year statute of limitations. Docket #8.
Petitioner has not responded to this motion. After reviewing the motion and 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:
(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
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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
Cir. 2006)).
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(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 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). Petitioner’s judgment of
conviction occurred on September 30, 2003, but he did not file a direct appeal. Accordingly,
Petitioner’s judgment of conviction starts to run when the time for review in the Michigan Court of
Appeals expires. In this case, because the judgment of conviction was dated before September 1,
2011, Petitioner had one year to file his delayed application for leave to appeal to the Michigan
Court of Appeals. Mich. Ct. R. 7.205(G)(3) (amended 2011). This means that the one-year
limitations period started to run on October 1, 2004, and he had until October 1, 2005, to file his
habeas petition. However, Bryant took no action until he filed his motion for relief from
judgement on October 14, 2013. The motion for relief does not toll or otherwise excuse Bryant’s
late habeas petition. Bryant signed his petition on September 8, 2014, almost nine years after his
limitations period expired.
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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 petition and concludes that Petitioner failed to raise equitable tolling or
allege any facts or circumstances that would warrant its application in this case. Petitioner states
that he is excused from the one-year statute of limitations because “the Supreme Court has
recognized the constitutional issue” and “the date on which the Judgment became final by the
conclusion of direct review.” Docket #1 at 13. These claims, without more, are not sufficient to
overcome the one-year statute of limitations. 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). Accordingly, Petitioner is not entitled to equitable tolling.
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 argue or 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.
CONCLUSION
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
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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
petition.
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 #1. A judgment consistent with this
Opinion and Order will be entered.
SO ORDERED.

Dated:

10/9/2015

/s/ R. Allan Edgar
R. Allan Edgar
United States District Court Judge

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