UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION JAMES SIMPSON, Petitioner, v. Case No. 01-10307-BC Honorable David M. Lawson CAROL HOWES, Respondent. / OPINION AND ORDER GRANTING RESPONDENT S MOTION AND DISMISSING THE HABEAS CORPUS PETITION The petitioner, James Simpson, has filed a petition for writ of habeas corpus, to which the respondent, Carol R. Howes, has responded with a motion for summary judgment or alternatively for dismissal. The Court finds that the petition is time-barred and that the petitioner has not demonstrated any entitlement to equitable tolling. The Court will therefore grant the respondent s motion and dismiss the petition with prejudice. I. In 1992, the petitioner was convicted in Wayne County, Michigan of second-degree murder, Mich. Comp. Laws 750.317, two counts of assault with intent to commit murder, Mich. Comp. Laws 750.83, and possession of a firearm while committing a felony (felony-firearm), Mich. Comp. Laws 750.227b. The trial court sentenced the petitioner to twenty-five to forty years in prison for the murder conviction, twenty to thirty-five years in prison for the assault convictions, and a consecutive term of two years in prison for the felony-firearm conviction. The Michigan Court of
Appeals affirmed the petitioner s convictions in an unpublished, per curiam opinion. See People v. Simpson, No. 155093 (Mich. Ct. App. June 2, 1994). On November 30, 1994, the Michigan Supreme Court denied leave to appeal. See People v. Simpson, No. 99893 (Mich. Sup. Ct. Nov. 30, 1994). On or about March 31, 1995, the petitioner filed a motion for relief from judgment, which the trial court denied on May 22, 1995. The petitioner moved for reconsideration, but the trial court denied his motion on June 30, 1995. The petitioner did not appeal the trial court s decision. On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ( AEDPA ), became effective. The AEDPA established a one-year period of limitation for federal habeas corpus petitions filed under 28 U.S.C. 2254. On January 20, 1998, the petitioner filed a second motion for relief from judgment. The trial court denied the motion, and the Michigan Court of Appeals denied the petitioner s application for leave to appeal the trial court s decision. See People v. Simpson, No. 222311 (Mich. Ct. App. May 3, 2000). On February 26, 2001, the Michigan Supreme Court likewise denied leave to appeal. See People v. Simpson, No. 117533 (Mich. Sup. Ct. Feb. 26, 2001). On August 13, 2001, the petitioner signed and dated his pro se habeas petition filed pursuant to 28 U.S.C. 2254. The petition alleges the following: 1. Defendant Simpson was denied due process of law under the federal and state constitutions when the trial court convicted him of two (2) counts of assault with intent to murder under a lesser [st]andard of proof on an essential element, than required by law. 2. Defendant Simpson was denied due process and his right to counsel when the police showed a single photograph to an eyewitness for identification purposes. -2-
3. Defendant Simpson was deprived of his right to effective assistance of counsel, guaranteed by the United States and Michigan Constitutions when his trial attorney failed to (A) produce three alibi witnesses he was aware of, and (B) file and argue a pretrial motion to suppress an unlawful identification procedure. 4. Defendant Simpson has established an entitlement to relief from the judgment of his conviction and sentence by demonstrating good cause for the failure to raise his present claims on direct appeal or in a prior motion, [as well as] actual prejudice from the alleged irregularities in this criminal process. The respondent argues that the petitioner s claims are time-barred because the statute of limitations expired on April 24, 1997, long before the petitioner filed his second motion for relief from judgment. The petitioner replies that he lacked notice and constructive knowledge of the statute of limitations and that he is entitled to equitable tolling of the one-year period of limitation, which would permit consideration of his tardy petition on the merits. II. Courts may dismiss an action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). What that means in the statute of limitations context is that dismissal is appropriate only if a complaint clearly shows the claim is out of time. Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence of a genuine issue of material fact for trial. See Fonseca v. Consol. Rail Corp., 246 F.3d 585, 590-91 (6th Cir. 2001) (holding that summary judgment may not be granted when facts material to determination of -3-
proper limitations period remain disputed). The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The [s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted). The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not rely on the hope that the trier of fact will disbelieve the movant s denial of a disputed fact but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23. The AEDPA has established a one-year statute of limitations for habeas corpus petitions filed under 28 U.S.C. 2254. See 28 U.S.C. 2244(d). Section 2244(d) provides: -4-
(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. (2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. 2244(d) (West 2000). The petitioner s conviction became final in 1995 before the AEDPA became effective on April 24, 1996. Therefore, he had until April 24, 1997 to file his habeas petition. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001), cert. denied, 112 S. Ct. 1081 (2002); Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.), cert denied, 122 S. Ct. 237 (2001); Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001); Brown v. O Dea, 187 F.3d 572, 577 (6th Cir. 1999), rev d on other grounds, 530 U.S. 1257 (2000). The petitioner did not sign and date his habeas petition until August 13, 2001. The habeas petition is untimely, absent tolling. -5-
A. The period of limitation generally is tolled for the entire time that a prisoner s postconviction motion is under consideration in state court. 28 U.S.C. 2244(d)(2); Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); Swartz v. Meyers, 204 F.3d 417, 420 (3d Cir. 2000). Section 2244 (d)(2) had no impact in this case, however, because the petitioner s first postconviction motion was filed and decided before the AEDPA became effective, and his second motion for relief from judgment was filed after the one-year period of limitation expired. [T]he limitation period is not reset upon the conclusion of state collateral review. Neal v. Bock, 137 F. Supp. 2d 879, 884 (E.D. Mich. 2001); see also Searcy, 246 F.3d at 519. B. The remaining question is whether equitable tolling is appropriate. The doctrine of equitable tolling may apply to the one-year limitation period for habeas corpus petitions. Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir.), cert. denied, 122 S. Ct. 649 (2001). However, [t]he federal courts sparingly bestow equitable tolling. Typically, equitable tolling applies only when a litigant s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant s control. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000) (citations omitted). When determining whether equitable tolling is appropriate, courts must consider: (1) the petitioner s lack of notice of the filing requirement; (2) the petitioner s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one s rights; (4) absence of prejudice to the respondent; and (5) the petitioner s reasonableness in remaining ignorant of the legal requirement for filing his claim. Dunlap, 250 F.3d at 1008. -6-
1. Although the petitioner alleges that respondent will suffer no prejudice if the court litigates the petitioner s claims, prejudice to the respondent is not an independent basis for invoking equitable tolling when there is no other factor that justifies tolling. Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988) (quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)). Accordingly, the Court must look beyond the absence of prejudice to the respondent to the other factors to answer whether the limitation period may be tolled under equitable principles. Id. The petitioner maintains that he lacked notice and constructive knowledge of the statute of limitations until the middle of last year when he acquired the assistance of a paralegal. The question, therefore, is whether the petitioner s ignorance of the legal requirement was reasonable and whether he was diligent in pursuing his claims. The Court finds it unlikely that the petitioner was unaware of the statute of limitations until five years after the statute became effective. The petitioner s exhibits indicate that he was actively involved in the pursuit of post-conviction remedies as early as April, 1993 when he asked his courtappointed attorney why she had not federalized his appellate issues. Pl. s Ans. to Resp. s Motion, Ex. 4. Moreover, ignorance of the law alone does not justify equitable tolling, Graham-Humphreys, 209 F.3d at 561 (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)), even for an incarcerated pro se petitioner with limited access to outside information. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999). The one-year grace period from the effective date of AEDPA is a reasonable period of time, regardless of the delay in notice to prisoners of the change in the law. Id. -7-
The petitioner also has not shown that he was diligent in pursuing his claims. On November 4, 1996, attorney Craig A. Daly wrote to the petitioner after reviewing the petitioner s transcripts and pro se motion for relief from judgment. Daly identified several potential issues and asked the petitioner to review his pre-sentence report. Daly also asked the petitioner to respond to the letter, to provide input, and to decide whether he wanted to retain Daly and pursue the issues identified in Daly s letter. Pl. s Ans. to Resp t s M., Ex. 2, unnumbered pages 1-2. Daly ultimately filed a motion for relief from judgment on the petitioner s behalf on January 20, 1998. The petitioner has neither documented nor explained what occurred between November 4, 1996, when Daly wrote to him, and April 24, 1997, when the period of limitation expired. 1 He has not explained his failure to file his second motion for relief from judgment sooner, nor shown that he acted with reasonable diligence throughout the period he seeks to toll. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). 1 The petitioner does allege that Daly concluded his work in February 2001, and did not inform him of the statute of limitations until March 16, 2001. Pl. s Ans. to Resp t M. at 4 & Exhibit 3, unnumbered page 1. On September 14, 2001, the petitioner wrote to Daly, explaining that he was pursuing a complaint for writ of habeas corpus in federal court. Because the petitioner anticipated that the State would raise a procedural default defense, he asked Daly for a copy of their correspondence so that he could attempt to show diligence in pursuing appellate relief. Id., unnumbered page 2. Daly responded on November 1, 2001, saying that no procedural default existed and that his correspondence with the petitioner could not cure the fact that the -8-
The petitioner attempts to blame his appellate attorneys for not advising him of the statute of limitations. The attorney assigned to represent him on his appeal of right cannot be blamed for the omission because the AEDPA had not been enacted at the time. Whether the petitioner s retained attorney, who also represented him during collateral challenges, was at fault is largely immaterial. The petitioner had no federal constitutional right to the assistance of counsel on collateral review of his conviction and therefore the quality (or lack of it) of representation cannot provide a basis for a constitutional deprivation at this stage of the proceedings. Coleman v. Thompson, 501 U.S. 722, 752-57 (1991). Furthermore, an attorney s error or lack of due diligence in preserving a claimant s rights generally does not warrant equitable tolling of the statute. Smaldone v. Senkowski, 273 F.3d 133, 138 (2nd Cir. 2001) (collecting cases); Hutchinson, 209 F.3d at 330-31. III. The Court concludes that the petitioner has not been diligent in pursuing his rights and that his alleged ignorance of the statute of limitation was unreasonable. Therefore, equitable tolling is not appropriate here. Accordingly, it is ORDERED that the respondent s motion for summary judgment or dismissal [dkt #9] is GRANTED. The petition for a writ of habeas corpus is DISMISSED, and the petitioner s motion for an evidentiary hearing [dkt #13] is DENIED. petitioner had failed to raise certain issues in his appeal of right. Id., unnumbered page 3. -9-
/s/ DAVID M. LAWSON United States District Judge Dated: June 10, 2002 Copies sent to: James Simpson #165015 Brenda E. Turner, Esquire
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION JAMES SIMPSON, Petitioner, v. Case No. 01-CV-10307-BC Honorable David M. Lawson CAROL HOWES, Respondent. / JUDGMENT In accordance with the Opinion and Order granting respondent s Motion for Summary Judgment and dismissing the Petition for Writ of Habeas Corpus, IT IS ADJUDGED that the Petition for Writ of Habeas Corpus is DISMISSED. DAVID M. LAWSON United States District Judge Dated: June 10, 2002 Copies sent to: James Simpson #165015 Brenda E. Turner, Esquire