Brown v. McKee
| Decision Date | 20 November 2002 |
| Docket Number | No. CIV.02-CV-72879-DT.,CIV.02-CV-72879-DT. |
| Citation | 232 F.Supp.2d 761 |
| Parties | Michael BROWN, Petitioner, v. Kenneth McKEE, Respondent, |
| Court | U.S. District Court — Eastern District of Michigan |
Michael Brown, Ionia, MI, for Pro se.
Michael Brown ("Petitioner"), an inmate at the Bellamy Creek Correctional Facility in Ionia, Michigan, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction on one count of use of a credit card without cardholder's consent, M.C.L.A. 750.157q; M.S.A. 28.354(16), and being a third felony habitual offender, M.C.L.A. 769.11; M.S.A. 28.1083. For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DISMISSED pursuant to 28 U.S.C. § 2244(d)(1).
Petitioner pleaded guilty to the above offenses in the Oakland County Circuit Court on February 22, 1988 and was sentenced to three to eight years in prison on December 6, 1988. Petitioner's conviction was affirmed on direct appeal. People v. Brown, 149874 (Mich.Ct.App. September 24, 1992). Petitioner does not appear to have sought leave to appeal with the Michigan Supreme Court.
On August 21, 1998, petitioner filed a state petition for writ of habeas corpus with the Oakland County Circuit Court, which was denied. People v. Brown, 87-081154-FH (Oakland County Circuit Court, November 16, 1998). Petitioner also filed a motion for a Ginther hearing and a motion to withdraw his guilty pleas and for reconsideration, which were denied. Id. After the Michigan Court of Appeals denied petitioner leave to appeal, People v. Brown, 225260 (Mich.Ct.App. December 7, 2000), the Michigan Supreme Court denied leave to appeal on June 26, 2001. People v. Brown, 464 Mich. 869, 630 N.W.2d 621 (2001). The instant petition was signed and dated June 21, 2002.1
On July 18, 2002, petitioner was ordered to show cause why his habeas petition should not be dismissed for failing to comply with the one year statute of limitations contained in 28 U.S.C. § 2244(d)(1). On November 6, 2002, petitioner filed a response to the order to show cause.
The petition for writ of habeas corpus must be dismissed because it has not been filed within the one year statute of limitations.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which was signed into law on April 24, 1996, amended the habeas corpus statute in several respects, one of which was to mandate a statute of limitations for habeas actions. 28 U.S.C. § 2244(d) imposes a one-year statute of limitations upon petitions for habeas relief:
(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 originally 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.
A federal court will dismiss a case where a petitioner for a writ of habeas corpus does not comply with the one year statute of limitations. Wilson v. Birkett, 192 F.Supp.2d 763, 765 (E.D.Mich.2002).
In the present case, the Michigan Court of Appeals denied petitioner's direct appeal on September 24, 1992. In his response to the order to show cause, petitioner claims for the first time that he filed an application for leave to appeal with the Michigan Supreme Court following the affirmance of his appeal by the Michigan Court of Appeals, but has presented no evidence to this Court to support this allegation, nor has this Court been able to find any evidence that petitioner ever filed an application for leave to appeal with the Michigan Supreme Court. The Court does note that in its opinion denying petitioner's application for state habeas relief, the trial court indicated that petitioner did not appear to seek appellate review of his conviction with the Michigan Supreme Court. People v. Brown, 87-081154-FH, * 2 (Oakland County Circuit Court, November 16, 1998).2
Because there is insufficient evidence that petitioner ever sought further appellate review of his case with the Michigan Supreme Court after the Michigan Court of Appeals affirmed his conviction, this Court assumes that petitioner's conviction became final, for purposes of § 2244(d)(1)(A), on November 19, 1992, when the fifty six day time period for seeking leave to appeal with the Michigan Supreme Court pursuant to M.C.R. 7.302(C)(3) expired. Erwin v. Elo, 130 F.Supp.2d 887, 889 (E.D.Mich.2001). However, because petitioner's conviction became final prior to the April 24, 1996 enactment date of the AEDPA, petitioner had one year from this date to timely file a petition for habeas relief with the federal court. Porter v. Smith, 126 F.Supp.2d 1073, 1074-1075 (E.D.Mich.2001). Absent state collateral review or other tolling, 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. Id. at 1075.
In this case, petitioner filed a state petition for a writ of habeas corpus on August 21, 1998, well after the one year limitations period had expired. Although the time during which a properly filed application for collateral review is pending in the state courts is excluded from the one year limitations period pursuant to 28 U.S.C. § 2244(d)(2), the limitations period is not reset upon the conclusion of state collateral review. Neal v. Bock, 137 F.Supp.2d 879, 884 (E.D.Mich.2001). By the time that petitioner filed his state petition for writ of habeas corpus, the one year limitations period had already expired. A state court post-conviction motion that is filed following the expiration of the limitations period for seeking federal habeas relief cannot toll that period because there is no period remaining to be tolled. Grayson v. Grayson, 185 F.Supp.2d 747, 750 (E.D.Mich.2002). If the one year limitations period has already expired, filing a motion for state post-conviction relief will not add new time to the limitations period. Id. at 750. Therefore, petitioner did not have one year following the denial of his post-conviction motion to file his petition with this Court.
In his response to the order to show cause, petitioner argues that this current habeas petition should be considered a pre-AEDPA petition because he previously filed a habeas petition with the U.S. District Court for the Eastern District of Michigan on September 18, 1995. In that prior habeas petition, petitioner challenged the constitutionality of a 1976 or 1977 conviction which had been used to enhance the sentence that he is currently challenging in this instant petition. The federal habeas court dismissed petitioner's prior application for habeas relief pursuant to Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), on the ground that petitioner was no longer in custody for this 1977 conviction, for purposes of seeking habeas relief. Brown v. Prelesnik, U.S.D.C. 95-10292 (E.D.Mich. July 29, 1996)(Cleland, J.).
Once a federal habeas petition which has been filed prior to the adoption of the AEDPA has been dismissed, a subsequent petition filed after the enactment of the AEDPA is considered a new petition and is governed by the AEDPA's requirements, including the statute of limitations. See Banks v. Horn, 271 F.3d 527, 533 (3rd Cir.2001)( argument that habeas petitioner's current habeas petition, which reasserted the same claims as a pre-AEDPA petition which had been dismissed, should relate back to the original filing date of the pre-AEDPA petition). Because this current application for habeas relief was filed after the enactment of the AEDPA, the Court considers it a new petition that would not relate back to the previous habeas petition filed by petitioner. This is especially true in light of the fact that petitioner is challenging a completely separate conviction and raising different claims for relief in his current application for habeas relief than he did in his prior habeas petition. An amended pleading relates back to a prior, timely complaint, if the claims asserted "arose out of the same conduct, transaction, or occurrence" as the original claims. McKay v. Puckett, 255 F.3d 660, 661 (8th Cir.2001); cert. den. ___ U.S. ___, 122 S.Ct. 672, 151 L.Ed.2d 585 (2001)(internal quotation omitted); Fed.Rules Civ.Proc.Rule 15(c)(2). New claims for relief which are raised in an amended habeas petition cannot relate back to the date of an original habeas petition, for limitations purposes. See Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.2001); cert. den. ___ U.S. ___, 122 S.Ct. 1442, 152 L.Ed.2d 385 (2002). Because petitioner is challenging an entirely different conviction in this current habeas petition and raises new and different claims than the ones which he raised in his prior habeas petition, his current application for habeas relief cannot "relate back" to his 1995 habeas petition.
Petitioner also claims that the statute of limitations should be equitably tolled for several reasons. The one year limitations period under the AEDPA is considered a statute of limitations which is subject to equitable tolling, and is...
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