Jurado v. Burt

• Decision Date: 24 July 2003
• Docket Number: No. 02-1133.,02-1133.
• Citation: 337 F.3d 638
• Parties: Jose JURADO, Jr., Petitioner-Appellant, v. Sherry BURT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

337 F.3d 638

Jose JURADO, Jr., Petitioner-Appellant, v. Sherry BURT, Respondent-Appellee.

No. 02-1133.

United States Court of Appeals, Sixth Circuit.

Submitted June 11, 2003.

Decided and Filed July 24, 2003.

Sarah E. Hunter, (briefed), Birmingham, Michigan, for Petitioner-Appellant.

Debra M. Gagliardi (briefed) Asst. Atty. Gen. Office of Attorney General, Corrections Div., Lansing, MI, Brenda E. Turner, Office of Attorney General, Habeas Corpus Div., Lansing, MI, for Respondent-Appellee.

Before MOORE and GIBBONS, Circuit Judges; SCHWARZER, Senior District Judge.^*

OPINION

GIBBONS, Circuit Judge.

Jose Jurado, a Michigan prisoner, appeals from the order of the district court dismissing his petition for a writ of habeas corpus as time-barred under the applicable one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Jurado concedes that his petition was untimely under AEDPA. He argues, however, that equitable tolling should apply to the nineteen months during which he was investigating and preparing an application for state post-conviction relief, the filing of which would have tolled AEDPA's limitations period. For the following reasons, we reject this argument and affirm the district court's decision.

I.

On October 15, 1992, a jury convicted Jurado of criminal sexual conduct and assault with intent to do great bodily harm less than murder. Jurado then pled guilty to being a second felony offender. He was sentenced to concurrent prison terms of fifty to one hundred years for the criminal sexual conduct conviction and ten to fifteen years for the assault conviction. Jurado exhausted his direct appeals in Michigan's appellate courts as of December 27, 1995. For AEDPA purposes, Jurado's conviction became final on March 27, 1996, after the ninety-day period during which Jurado could have filed a petition for certiorari in the Supreme Court of the United States seeking direct review of his conviction. See, e.g., Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000).

AEDPA establishes a one-year statute of limitations period for § 2254 petitions. See 28 U.S.C. § 2244(d). The one-year period begins to run from the latest of four circumstances, one of which is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1). AEDPA became effective on April 24, 1996. Because Jurado's conviction became final before AEDPA was enacted, he had a one-year grace period, lasting until April 24, 1997, in which to file his habeas petition. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir.), cert. denied, 537 U.S. 1091, 123 S.Ct. 699, 154 L.Ed.2d 638 (2002).

The one-year period of limitations is tolled by the amount of time that "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" in state court. See 28 U.S.C. § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226-27 (10th Cir.1998) ("the one year grace period would be tolled by any time spent pursuing properly filed post-conviction proceedings"). Jurado did not, however, file an application for state post-conviction review within the one-year period.

Rather, he filed an application for state post-conviction review in November 1997, approximately one year and seven months after the one-year grace period began. Jurado retained his current counsel in the spring of 1996 to assist him in seeking state post-conviction relief under M.C.R. § 6.500 et seq. Through counsel, he filed a motion for relief from judgment on November 12, 1997. The trial court denied the motion on the merits and then denied Jurado's motion for reconsideration. Jurado's subsequent appeals to the state courts were denied, and the Michigan Supreme Court denied his delayed application for leave to appeal on February 29, 2000.

Almost one year later, on February 28, 2001, Jurado filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Michigan. In his habeas petition, Jurado argued that equitable tolling should apply to save his petition for habeas relief because he was investigating and researching claims for his request for state post-conviction relief during the approximately nineteen months that elapsed between April 24, 1996 (the start of the one-year grace period) and November 12, 1997 (the date he filed an application for state post-conviction relief). Alternatively, he argued that his request for state post-conviction relief was "pending" during that time under the meaning of the statute, such that the statute tolled the period for filing for habeas relief.

The district court disagreed. It dismissed Jurado's habeas petition with prejudice, holding that equitable tolling did not apply and that the petition was untimely under the statute. The district court held that an application for state post-conviction relief must be filed in order to be "pending" for the purposes of tolling under 28 U.S.C. § 2244(d)(2). Further, it noted that a motion for state post-conviction review that is filed following the limitations period for seeking federal habeas relief cannot toll that period because there is no period remaining to be tolled. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.2000). The district court declined to toll the statute during the period in which Jurado's counsel was investigating potential claims, attempting to discover facts to support his claims, and reviewing materials, because no application for state post-conviction relief had been filed during those time periods. The district court also noted that Jurado had failed to allege specific facts as to how he had "pursued" his state post-conviction relief claims during the nineteen-month period.

Jurado then filed a motion for reconsideration and attached an affidavit from his counsel, Sarah E. Hunter. Hunter described her work on Jurado's case. She asserted that she obtained Jurado's file from trial counsel on April 22, 1996, and "analyzed his case by looking at every issue my client identified." She "did legal research as to the viability of each issue, and spoke with witnesses and/or experts as needed." She made the following statements about her understanding of AEDPA's statute of limitations:

In preparing Mr. Jurado's case ... I understood that Michigan did not have a statute of limitations as to when a petition for post judgment relief under MCR 6.500 et seq[.] must be filed. However, Michigan did have a rule indicating that only one such motion could be filed. Accordingly, when issues came up that my client and I believed we should look into, we did so. I chose not to rush and file "anything" to stop the clock under AEDPA, as many of my colleagues did, because I was concerned that Mr. Jurado might fail to exhaust his constitutional claims and fail to try to develop the factual predicates for those claims in state court. At that time, I was not aware of the case law that would evolve as to the tolling of the statute of limitations under AEDPA.

At the time, I believed the AEDPA statue of limitations was ambiguous as to whether the state court petition was "properly filed" or "pending". I do know that I was confused as to whether I would be required to file the motion in April, and that I determined that I would not risk filing prematurely in state court just to stop the clock and risk defaulting federal issues that we had not yet analyzed as to their viability. However, I anticipated that so long as we were steadily preparing Mr. Jurado's bid for post conviction relief by investigating potential claims, we should not file prematurely in state court just to stop the federal clock, as this would not be in the best interests of my client and would not serve finality in state court.

Hunter's affidavit chronicled her activities related to Jurado's case during the nineteen-month period. She asserted that she located and arranged meetings with various expert witnesses (including a toxicologist, a neurologist, and a psychologist); sought an advisory opinion on an undisclosed ethical question; and attempted to obtain additional evidence, such as the nurses' notes from the victim's hospital stay. She indicated that she drafted and revised the motion for state post-conviction relief over a five-month period, from July to November 1997. She stated that it was her strategy to "investigate each and every claim or fact that the client indicates was not attended to at trial or on direct appeal," and that she and her client "honed the issues steadily... between April of 1997 and November of 1997." As noted, the one-year grace period expired on April 24, 1997.

The district court denied Jurado's motion for reconsideration, stating that "[t]he Court considered in its original opinion the discovery and research accomplished by counsel. The details of counsel's work does not modify the issues." It granted a certificate of appealability with respect to the issue of equitable tolling, and Jurado timely appealed.

II.

Jurado concedes that his habeas petition was untimely. He also now concedes that his motion for state post-conviction review was not "properly filed" and "pending" within the meaning of 28 U.S.C. § 2244(d)(2) during AEDPA's one-year grace period, such that it did not toll the grace period under the statute. Thus, his only claim on appeal is that the doctrine of equitable tolling should apply to his case. We review this claim de novo. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir.2001) (where the facts of the case are undisputed and the district court rules as a matter of law that equitable tolling is unavailable, this court reviews de novo).

Jurado bears the burden of demonstrating that he is entitled to equitable tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir.2002). The doctrine is used sparingly by federal courts....