Johnson v. Birkett

• Decision Date: 10 October 2011
• Docket Number: CASE NO. 2:10-cv-14347
• Parties: RONALD ALLEN JOHNSON, Petitioner, v. THOMAS BIRKETT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

RONALD ALLEN JOHNSON, Petitioner,

v.THOMAS BIRKETT, Respondent.

CASE NO. 2:10-cv-14347

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: September

Dated: October 10, 2011

JUDGE GEORGE CARAM STEEH

MAGISTRATE JUDGE PAUL KOMIVES

REPORT AND RECOMMENDATION ON PETITIONER'S HABEAS APPLICATION

(docket #1) and RESPONDENT'S MOTION FOR SUMMARY JUDGMENT (docket #8)

I. RECOMMENDATION: The Court should conclude that petitioner's habeas application is untimely pursuant to 28 U.S.C. § 2244(d). Accordingly, the Court should grant respondent's motion for summary judgment and dismiss the petition. If the Court accepts this recommendation, the Court should also deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural Background

Petitioner Ronald Allen Johnson is a state prisoner, serving various concurrent sentences (the most severe of which involve terms of 18-40 years' imprisonment) imposed as a result of his 2003 state court convictions for assault with intent to rob, conspiracy to commit armed robbery, home invasion, and firearms offenses. Petitioner's application and the state court record reveal the following time line of the state court proceedings:

• Petitioner was convicted in November 2003, following a jury trial in the Saginaw County Circuit Court. On February 9, 2004, he was sentenced by the court.

• Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, claims of improper joinder, denial of a lesser offense instruction, andimproper sentencing. On March 10, 2005, the court of appeals affirmed petitioner's convictions but remanded for resentencing or for the trial court to articulate substantial and compelling reasons for departing from the sentencing guidelines. See People v. Johnson, No. 253943, 2005 WL 562814 (Mich. Ct. App. Mar. 10, 2005) (per curiam).

• The trial court resentenced petitioner on April 18, 2005. Petitioner again appealed as of right to the Michigan Court of Appeals, challenging the trial court's new sentences. On September 28, 2006, the court of appeals affirmed petitioner's sentences. See People v. Johnson, No. 262415, 2006 WL 2787875 (Mich. Ct. App. Sept. 28, 2006) (per curiam).

• Petitioner filed a pro se application for leave to appeal in the Michigan Supreme Court, raising a number of claims challenging both his convictions and sentences, including claims that had not been raised in the court of appeals. On February 27, 2007, the Supreme Court denied leave to appeal in a standard order. See People v. Johnson, 477 Mich. 1033, 727 N.W.2d 612.

• On April 16, 2008, petitioner filed a motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.500-.508. The trial court denied the motion on November 14, 2008.

• Petitioner filed an application for leave to appeal the trial court's decision. On October 16, 2009, the court of appeals denied petitioner's application in a standard order. See People v. Johnson, No. 292019 (Mich. Ct. App. Oct. 16, 2009).

Petitioner did not appeal this decision to the Michigan Supreme Court. On October 18, 2010, petitioner filed this application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ Respondent filed a motion for summary judgment on May 6, 2011, arguing that petitioner's habeas application is untimely. Petitioner filed a response to the motion on July 28, 2011. For the reasons that follow, the Court should grant respondent's motion for summary judgment and, accordingly, should deny petitioner's motions.B. Analysis

1. Statutory Timeliness and Tolling

Respondent argues that petitioner's application is barred by the one-year statute of limitations governing habeas petitions. On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1220 (Apr. 24, 1996). In relevant part, the AEDPA amended 28 U.S.C. § 2244 to provide a one year statute of limitations for habeas petitions. Specifically, the statute as amended by the AEDPA provides:

(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 of 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 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 post-conviction 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).²

As the language of the statute indicates, there are four possible dates on which the limitations period may begin to run. Assuming that the default commencement date established by subparagraph (A) applies here, petitioner's application is untimely. Under subparagraph (A) of §2244(d),

a judgment of conviction does not become "final" . . . until the Supreme Court affirms the conviction and sentence on the merits or denies a timely filed petition for certiorari.

In addition, if a defendant does not file a certiorari petition, the judgment of conviction does not become "final" until the time for seeking certiorari review expires.

Kapral v. United States, 166 F.3d 565, 570-71 (3d Cir. 1999); see also, United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997) (conviction became final upon denial of certiorari); Torres v. Irvin, 33 F. Supp. 2d 257, 271 (S.D.N.Y. 1998) ("[A] judgment of conviction only becomes final upon the expiration of the ninety days to seek a writ of certiorari from the United States Supreme Court."); United States v. Dorsey, 988 F. Supp. 917, 918 (D. Md. 1998) (same); cf. Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (for purpose of determining whether application of new rule of law would be an impermissible retroactive application to a case which has already become final, conviction becomes final upon denial of the defendant's petition for certiorari); Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987) ("By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.").

Here, petitioner's direct appeal concluded with the Michigan Supreme Court's denial of his application for leave to appeal on February 27, 2007. Petitioner's conviction became final 90 days later when the time for seeking certiorari in the United States Supreme Court expired, or on May 28, 2007. Thus, the one year limitation period began running on May 29, 2007, see FED. R. CIV. P. 6(a)(1)(A), and expired one year later on May 29, 2008. Because petitioner did not file his petition until October 18, 2010, it is untimely unless the limitations period was tolled for any reason.

Under § 2244(d)(2), the limitations period is tolled for "[t]he time during which a properlyfiled application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending[.]" Here, petitioner filed a motion for relief from judgment on April 16, 2008. By this time, 303 days on the limitations clock had elapsed, leaving 62 days remaining. The Michigan Court of Appeals denied his application for leave to appeal on October 16, 2009. Petitioner then had 56 days in which to file an application for leave to appeal in the Michigan Supreme Court. See MICH. CT. R. 7.302(C)(3). The clock therefore started to run again on December 12, 2009.³ It is well established that subsection (d)(2) is a tolling provision and therefore a post-conviction motion only pauses the limitations clock; it "does not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.2d 13, 17 (2d Cir. 2000); see also, Brooks v. McKee, 307 F. Supp. 2d 902, 905 (E.D. Mich. 2004) (Gadola, J.). Thus, petitioner then had 62 days in which to file his habeas application. However, petitioner did not file his application until over ten months later, on October 18, 2010. Thus, his application is untimelyby nearly eight months. Accordingly, the Court should conclude that petitioner's application is untimely.

C. Petitioner's Arguments

With the exception of claiming that he is entitled to tolling under § 2244(d)(2) for the time in which he could have appealed to the Michigan Supreme Court in connection with his motion for relief from judgment, an argument which as explained above does not render petitioner's application timely, petitioner does not contest the foregoing calculation of the limitation period. Rather, he contends that his petition should be deemed timely because he is entitled to a delayed starting of the limitations period, that he is entitled to equitable tolling, and that he is actually innocent. The Court should reject each of these arguments.

1. Delayed Commencement

Petitioner contends that he is entitled to a delayed commencement of the limitations period based both on a state created impediment to filing and based on the discovery of new evidence. The Court should conclude that petitioner is not entitled to delayed commencement on either basis. Importantly, in applying the delayed commencement provisions set forth in § 2244(d)(1)(B)-(D), a court must apply a claim-by-claim approach. See Souliotes v. Evans, 622 F.3d 1173, 1179-80 (9th Cir. 2010); Fielder v. Varner, 379 F.3d...