Grayson v. Grayson

• Citation: 185 F.Supp.2d 747
• Decision Date: 03 January 2002
• Docket Number: No. 01-71813-DT.,01-71813-DT.
• Parties: Tony GRAYSON, Petitioner, v. Henry N. GRAYSON, Respondent,
• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

Page 747

185 F.Supp.2d 747

Tony GRAYSON, Petitioner, v. Henry N. GRAYSON, Respondent,

No. 01-71813-DT.

United States District Court, E.D. Michigan, Southern Division.

January 3, 2002.

Tony Grayson, Jackson, MI, Pro se.

Brenda E. Turner, Debra M. Gagliardi, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent.

OPINION AND ORDER OF SUMMARY DISMISSAL

ROBERTS, District Judge.

Tony Grayson, ("petitioner"), presently confined at the Parnall Correctional Facility in Jackson, Michigan, has filed a pro se petition for a writ of habeas corpus, in which he seeks to challenge his convictions for one count of armed robbery, M.C.L.A. 750.529; M.S.A. 28.797; one count of unlawfully driving away an automobile, M.C.L.A. 750.413; M.S.A. 28.645; and being a fourth felony habitual offender. M.C.L.A. 769.12; M.S.A. 28.1084. Respondent has filed a motion for summary judgment, contending that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). Petitioner has filed a response to the motion for summary judgment. For the reasons stated below, petitioner's application for a writ of habeas corpus is DISMISSED WITH PREJUDICE.

I. Background

Petitioner was found guilty of armed robbery and unlawfully driving away an automobile on April 30, 1991, after a bench trial in the Detroit Recorder's Court. Petitioner thereafter pleaded guilty to the supplemental information which charged him with being a fourth felony habitual offender. On May 29, 1991, petitioner was sentenced to ten to twenty five years on the armed robbery conviction and two to five years on the unlawfully driving away an automobile conviction. These sentences were vacated and petitioner was sentenced to twelve to twenty five years on the fourth felony habitual offender charge.

Petitioner's conviction was affirmed on appeal, but his case was remanded to the trial court for re-sentencing. People v. Grayson, 144392 (Mich.Ct.App. October 11, 1993); lv. den. 444 Mich. 983, 518 N.W.2d 483 (1994). Petitioner was re-sentenced on December 10, 1993 to the same term of imprisonment. After the re-sentencing in the trial court, petitioner's conviction and sentence were again affirmed. People v. Grayson, 172489 (Mich.Ct.App. July 10, 1995); lv. den. 451 Mich. 879, 549 N.W.2d 569 (1996).

On January 15, 1999, petitioner filed a post-conviction motion for relief from judgment with the trial court, which was denied. People v. Grayson, 90-10554-01 (Wayne County Circuit Court, August 12, 1999). The Michigan appellate courts affirmed the denial of the motion for relief from judgment. People v. Grayson, 224311 (Mich.Ct.App. August 21, 2000); lv. den. ___ Mich. ___, 623 N.W.2d 598 (2001). The instant petition was filed on May 3, 2001.

II. Discussion

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir.2000)(quoting Fed.R.Civ.P. 56(c)). To defeat a motion for summary judgment, the non-moving party must set forth specific facts sufficient to show that a reasonable factfinder could return a verdict in his favor. Sanders, 221 F.3d at 851. The summary judgment rule applies to habeas proceedings. Harris v. Stegall, 157 F.Supp.2d 743, 746 (E.D.Mich.2001)(Steeh, J.).

In the present case, summary judgment is appropriate, because the petition for writ of habeas corpus was not filed within the one year statute of limitations. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year statute of limitations shall apply to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. The one year statute of limitation 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.

28 U.S.C. § 2244(d)(1).

Because petitioner filed this petition after the effective date of the habeas reform law, the requirements of the AEDPA, including the statute of limitations, would be applicable to his case. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). 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. Thomas v. Straub, 10 F.Supp.2d 834, 835 (E.D.Mich.1998)(Duggan, J.).

In the present case, petitioner's direct appeals in the Michigan courts ended on April 29, 1996, when the Michigan Supreme Court denied him leave to appeal from his re-sentencing. Petitioner's conviction became final, for purposes of § 2244(d)(1), when the ninety day time period for filing a petition for writ of certiorari in the United States Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000). Petitioner's judgment therefore became final on July 29, 1996, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas v. Straub, 10 F.Supp.2d at 835. Petitioner had until July 29, 1997 to timely file his petition with the federal court, unless the limitations period was somehow tolled.

In the present case, petitioner filed a post-conviction motion for relief from judgment with the state trial court on January 15, 1999, which was over seventeen months after the one year limitations period had expired. 28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute. Corbin v. Straub, 156 F.Supp.2d 833, 836 (E.D.Mich.2001)(Edmunds, J.). However, 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, 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)(Lawson, J.). Thus, although the filing of the motion for relief from judgment may have tolled the running of the one-year statute, it would not cause the statute to begin running anew when the state court denied the motion. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.2001). However, by the time that petitioner filed this motion for relief from judgment, 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. Smith v. Stegall, 141 F.Supp.2d 779, 782-783 (E.D.Mich.2001)(Gadola, J.). 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. Therefore, petitioner did not have one year following the denial of his motion for relief from judgment to file his petition with this Court.

In his "Brief in Support of Motion to Grant Writ of Habeas Corpus Petition", petitioner claims that the factual predicate of his claims could not have been discovered previously through the exercise of due diligence. Under 28 U.S.C. § 2244(d)(1)(D), the one year limitations period under the AEDPA begins to run from the date upon which the factual predicate for a claim could have been discovered through due diligence. However, the time commences under § 2244(d)(1)(D) when the factual predicate for a petitioner's claim could have been discovered through the exercise of due diligence, not when it was actually discovered by a given prisoner. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000). In the present case, petitioner does not specify how the factual predicate of his claims could not have been discovered earlier, nor does he indicate what steps, if any, he took to discover these claims. Petitioner does not even indicate when he discovered the factual predicate of his claims, thus preventing this Court from determining when the one year limitations period would commence pursuant to § 2244(d)(1)(D). This Court rejects petitioner's contention that the factual predicate for his claims could not have been discovered sooner because his argument is unsupported and conclusory. See Neuendorf v. Graves, 110 F.Supp.2d 1144 1154-1155 (N.D.Iowa 2000)(rejecting claim that habeas petitioner's limitations period ran from the discovery of new evidence by petitioner, where petitioner's contention that the new evidence could not be discovered sooner with due diligence was "unsupported and conclusory").

In the present case, petitioner has failed to offer any reasons that would support the equitable tolling of the limitations period. The one year limitations period under the AEDPA is considered a statute of limitations which is subject to equitable tolling, and is not a jurisdictional prerequisite which would bar review by the federal courts if not met. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir.2001). In Dunlap, the Sixth Circuit adopted the test for equitable tolling set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir.1988) and indicated that five...