Bass v. Rewarts

• Decision Date: 22 October 2018
• Docket Number: Civil No. 2:18-CV-13149
• Parties: AMOR DEJEAN BASS, Petitioner, v. RANDEE REWARTS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

AMOR DEJEAN BASS, Petitioner, v. RANDEE REWARTS, Respondent.

Civil No. 2:18-CV-13149

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

October 22, 2018

HON. GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR EQUITABLE TOLLING AND FOR AN EVIDENTIARY HEARING, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE APPEAL IN FORMA PAUPERIS

Amor Dejean Bass, ("Petitioner"), confined at the Carson City Correctional Facility in Carson City, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for first-degree murder, assault with intent to rob while armed, and felony-firearm. Petitioner has also filed a motion for equitable tolling and for an evidentiary hearing. The Court summarily dismisses the petition for writ of habeas corpus, because it was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1) and the late petition cannot be saved by the doctrine of equitable tolling.

I. Background

Petitioner pleaded guilty to the above charges in the Genesee County Circuit Court and was sentenced to life imprisonment on the first-degree murder conviction, ten to twenty years on the assault with intent to rob while armed conviction, and received a two year sentence on the felony-firearm conviction.

The Michigan Court of Appeals affirmed petitioner's conviction on direct appeal. People v. Bass, No. 167881 (Mich.Ct.App. Apr. 10, 1995). Petitioner indicates that the Michigan Supreme Court rejected his application for leave to appeal as being untimely. See ECF 1, Pg ID 3.¹

On April 1, 2002, petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. Seq., which was denied. People v. Bass, No. 92-46451 (Genesee Cty.Cir.Ct., June 28, 2002). The Michigan appellate courts denied petitioner leave to appeal. People v. Bass, No. 249931 (Mich.Ct.App. Sept. 24, 2003); lv. den. 470 Mich. 857, 679 N.W. 2d 697 (2004).

Petitioner filed a successive motion for relief from judgment on November 2, 2005, which was rejected for filing on December 19, 2005,pursuant to M.C.R. 6.502(G), which prohibits the filing of successive motions for relief from judgment unless the claim is based on newly discovered evidence or a retroactive change in the law. Petitioner then filed a third motion for relief from judgment on September 17, 2008, which was likewise rejected on September 22, 2008 pursuant to M.C.R. 6.502. Petitioner filed a "Motion for Summary Disposition" on October 3, 2013, which was rejected pursuant to M.C.R. 6.502 on November 12, 2013. Petitioner finally filed a fourth motion for relief from judgment on July 21, 2016, which was likewise rejected under M.C.R. 6.502(G) because petitioner's claims were not based on newly discovered evidence or a retroactive change in the law. The only post-conviction order from the trial court that petitioner provided to this Court was from the order rejecting the last motion but the order references petitioner's prior successive post-conviction motions. People v. Bass, No. 92-46451 (Genesee Cty.Cir.Ct., Aug. 3, 2016); reconsideration den. August 31, 2016. See ECF 1, 31-33.

Petitioner appealed the denial of his fourth motion for relief from judgment, which was denied pursuant to M.C.R. 6.502(G). People v. Bass, No. 335186 (Mich.Ct.App. Feb. 23, 2017); lv. den. 501 Mich. 925, 903 N.W.2d 595 (2017).

Petitioner filed his petition on October 2, 2018.² Petitioner also filed a motion for equitable tolling and for an evidentiary hearing.

II. Discussion

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts "provides that district courts 'must promptly examine' state prisoner habeas petitions and must dismiss the petition '[i]f it plainly appears ... that the petitioner is not entitled to relief.'" Day v. McDonough, 547 U.S. 198, 207 (2006). This Court must determine whether the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U.S.C. § 2244(d)(1), bars substantive review of the petitioner's claims. This Court is "permitted ... to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 547 U.S. at 209. Before acting on its own initiative to dismiss a state prisoner's habeas petition as untimely, a federal district court must give the parties fair notice and an opportunity to present their positions regarding the timeliness issue. Id., at 210. The petitioner acknowledged the statute of limitations issue in his habeas corpus petition, admitting that the petition was untimely, but arguing that he was entitled to equitable tolling of the statute oflimitations. The petitioner has thus been given an opportunity to address the limitations issue. See Stewart v. Harry, No. 17-1494, 2017 WL 9249946, at * 1 (6th Cir. Nov. 21, 2017).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996, and it governs the filing date for the habeas application in this case because the petitioner filed his petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA amended 28 U.S.C. § 2244 to include a new, one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. See Vroman v. Brigano, 346 F. 3d 598, 601 (6th Cir. 2003). The one-year statute of limitations runs 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). Although not jurisdictional, the AEDPA's one year limitations period "effectively bars relief absent a showing that the petition's untimeliness should be excused based on equitable tolling and actual innocence." See Akrawi v. Booker, 572 F. 3d 252, 260 (6th Cir. 2009). A habeas petition filed outside the time period prescribed by this section must be dismissed. See Isham v. Randle, 226 F. 3d 691, 694-95 (6th Cir. 2000), overruled on other grounds, Abela v. Martin, 348 F. 3d 164, 172-73 (6th Cir. 2003)(dismissing a habeas case filed thirteen days after the limitations period expired as untimely); Neal v. Bock, 137 F. Supp. 2d 879, 885 (E.D. Mich. 2001)(dismissing a habeas petition filed over one month after the limitations period had expired as untimely).

The Michigan Court of Appeals affirmed petitioner's conviction on April 10, 1995. Petitioner's application for leave to appeal was rejected as untimely by the Michigan Supreme Court.

If a habeas petitioner appeals to the Michigan Supreme Court, but does not petition the United States Supreme Court for a writ of certiorari, his or her judgment of conviction is finalized when the time for taking an appeal to the United States Supreme Court expires. The one-year statute of limitations does not begin to run until the day after the petition for a writ ofcertiorari was due in the United States Supreme Court. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009).

However, when, as in this case, a habeas petitioner only appeals his or her judgment of conviction to the Michigan Court of Appeals and fails to properly or timely file an application for leave to appeal to the Michigan Supreme Court, the additional ninety days for filing an appeal to the United States Supreme Court is not taken into account. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012)(clarifying that when a petitioner does "not appeal to the State's highest court, his judgment [becomes] final when his time for seeking review with the State's highest court expire[s]").

Under M.C.R. 7.302, which was in effect at the time of petitioner's direct appeal, petitioner had fifty-six days to file an appeal in the Michigan Supreme Court, the highest court in the State.³ The expiration of the fifty-six days represents the expiration of the time for seeking direct review of petitioner's judgment of conviction, therefore, the one-year statute of limitations began to run at that time. Gonzalez, 565 U.S. at 150.

Because petitioner did not file a timely application for leave to appeal to the Michigan Supreme Court, his conviction became final, for purposes of§ 2244(d)(1)(A), on June 6, 1995, when the time for seeking leave to appeal with the Michigan Supreme Court expired. See Brown v. McKee, 232 F. Supp. 2d 761, 765 (E.D. Mich. 2002); Erwin v. Elo, 130 F. Supp. 2d 887, 889 (E.D. Mich. 2001). The petitioner's conviction became final prior to the April 24, 1996 enactment date of the AEDPA, thus, the petitioner had a one year grace period from this date to timely file a petition for habeas relief with the federal court. See Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). Absent state collateral review, petitioner would have been required to file his petition for writ of habeas corpus with this Court no later than April 24, 1997 in order for the petition to be timely filed. See Corbin v. Straub, 156 F. Supp. 2d 833, 836 (E.D. Mich. 2001).

Petitioner filed his first post-conviction motion on April 1, 2002, long after the one year limitations period had already expired. A state court post-conviction motion that is filed following the expiration of the...