Holloway v. Jones

• Decision Date: 28 September 2001
• Docket Number: No. CIV. 00-73864-DT.,CIV. 00-73864-DT.
• Citation: 166 F.Supp.2d 1185
• Parties: Spencer Tracy HOLLOWAY, Petitioner, v. Kurt JONES, Respondent,
• Court: U.S. District Court — Eastern District of Michigan

166 F.Supp.2d 1185

Spencer Tracy HOLLOWAY, Petitioner, v. Kurt JONES, Respondent,

No. CIV. 00-73864-DT.

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

September 28, 2001.

COPYRIGHT MATERIAL OMITTED

Sheldon Halpern, Royal Oak, MI, for petitioner.

Brad H. Beaver, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, Vincent J. Leone, Lansin, MI, for respondent.

OPINION AND ORDER OF SUMMARY DISMISSAL¹

TARNOW, District Judge.

Spencer Tracy Holloway, ("petitioner"), presently confined, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application petitioner challenges his conviction on one count of first degree murder, M.C.L.A. 750.316; M.S.A 28.548, and one count of possession of a firearm in the commission of a felony. M.C.L.A. 750.227b; M.S.A. 28.424(2). 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 two responses to the motion for summary judgment. For the reasons stated below, petitioner's application for a writ of habeas corpus is dismissed.

I. Background

Petitioner was convicted of the above offenses following a jury trial in 1986. Petitioner's direct appeals ended when the Michigan Supreme Court denied his application for leave to appeal following his appeal of right on June 27, 1989. People v. Holloway, 432 Mich. 917 (1989). On February 24, 1997, petitioner, through his current attorney, filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et seq. After the trial court denied his motion for relief from judgment, the Michigan Court of Appeals denied leave to appeal. People v. Holloway, (No. 213526, December 30, 1998). The Michigan Supreme Court denied leave to appeal on August 31, 1999. People v. Holloway, 461 Mich. 858, 601 N.W.2d 389 (1999). The instant petition was filed with this Court on August 30, 2000.²

II. Discussion

The petition for writ of habeas corpus must be dismissed because it has not been 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).

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).

In the present case, petitioner's direct appeal of his conviction ended when the Michigan Supreme Court denied leave to appeal on June 27, 1989. Petitioner's conviction would become final, for the purposes of the AEDPA's limitations period, on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000). Petitioner's judgment therefore became final on September 27, 1989, 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. Because petitioner's conviction became final prior to the April 24, 1996 enactment date of the AEDPA, petitioner had one year from April 24, 1996 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, 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.

Petitioner filed a state post-conviction motion for relief from judgment on February 24, 1997, after three hundred and six (306) days had elapsed. 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. Matthews v. Abramajtys, 39 F.Supp.2d 871, 874 (E.D.Mich.1999). This tolling provision is applicable to state prisoners, whose one year limitations period for seeking federal habeas relief began to run on the AEDPA's enactment date. Lucas v. Carter, 46 F.Supp.2d 709, 711 (N.D.Ohio 1999). The tolling of the one year statute of limitations did not end until at the latest ninety days after the Michigan Supreme Court completed collateral review by denying the petitioner's application for leave to appeal on August 31, 1999. Cf., Hudson v. Jones, 35 F.Supp.2d 986, 988-989 (E.D.Mich.1999) that would be November 29, 1999. However, petitioner's motion for relief from judgment did not cause the one year limitations period to begin to run anew after the post-conviction motion was denied. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.2001). Thus, petitioner had, at most, fifty nine days remaining to timely file his petition for writ of corpus with this Court, meaning that he had until January 27, 2000 to file his petition in compliance with the AEDPA's one year limitations period. The petition was not filed with this Court until August 30, 2000. Thus, the petition was untimely.

Petitioner acknowledges that his petition was not filed within the AEDPA's one year limitations period. However, petitioner argues that the limitations period should be equitably tolled for two reasons. First, petitioner claims that he is actually innocent. Second, petitioner argues that the limitations period should be tolled because his financial resources precluded him from retaining counsel in a timely fashion to file his habeas petition.³

The one year limitations period under the AEDPA is considered a statute of limitations which is subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir.2001).

The Sixth Circuit also noted that the doctrine of equitable tolling should be used "sparingly." Dunlap, 250 F.3d at 1008-1009. Absent a satisfactory explanation by a petitioner for failing to timely file a habeas petition, a petitioner would fail to exercise due diligence in pursuing his or her claim, and thus would not be entitled to equitable tolling of the limitations period. Id. at p. 1010.

The Court will address petitioner's second argument in support of equitable tolling first. Petitioner argues that because of his indigency, he was unable to timely retain an attorney to file a habeas petition on his behalf. Claims that a petitioner did not have professional legal assistance are not an extraordinary circumstance which would toll the statute of limitations. Henderson v. Johnson, 1 F.Supp.2d 650, 656 (N.D.Tex.1998); See also Bilodeau v. Angelone, 39 F.Supp.2d 652, 659 & n. 1 (E.D.Va.1999)(petitioner's claim that the delay in filing the petition resulted, because he was seeking legal assistance would neither establish excusable neglect, so as to warrant an enlargement of time to file the petition, or support the equitable tolling of the statute of limitations). Thus, the fact that petitioner was unable to retain counsel in a timely fashion to file his habeas petition is not a circumstance that would justify the equitable tolling of the statute of limitations.

The primary argument offered by petitioner to support the equitable tolling of the statute of limitations is his claim that he is actually innocent of these crimes. Petitioner's argument "raises concerns because of the inherent injustice that results from the conviction of an innocent person, and the technological advances that can provide compelling evidence of a person's innocence." Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1218 (11th Cir.2000). This Court is also mindful of the fact that: "[D]ismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996).

Some circuit courts have indicated that equitable tolling of the limitations period would be appropriate when a petitioner was actually innocent. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000). Other circuit courts have ruled that a claim of actual innocence would not constitute a "rare and exceptional" circumstance which would justify the equitable tolling of the limitations period, given that most prisoners maintain that they are innocent. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.2000). The Sixth Circuit has appeared to suggest in the dicta of one of their recent decisions that, if a prisoner purposefully or by inadvertence let the time run under which he could have filed his habeas petition, he cannot file a petition beyond the statutory time, even if he claims actual innocence. See Workman v. Bell, 227 F.3d 331, 342 (6th Cir.2000); cert. den. ___ U.S. ___, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001)(Per Opinion of Siler, J., joined by six judges, voting to deny petition for rehearing en banc).

Several district courts have addressed the...