Robinson v. McKee

• Decision Date: 12 March 2014
• Docket Number: CASE NO. 5:13-CV-13145
• Parties: LAMONT D. ROBINSON, Petitioner, v. KENNETH McKEE, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

LAMONT D. ROBINSON, Petitioner, v. KENNETH McKEE, Respondent.

CASE NO. 5:13-CV-13145

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: March 12, 2014

JUDGE JOHN CORBETT O'MEARA

MAGISTRATE JUDGE PAUL KOMIVES

REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION FOR SUMMARY

JUDGMENT (docket #9)

I. RECOMMENDATION: The Court should conclude that petitioner's application for the writ of habeas corpus is barred by the one year statute of limitations contained in 28 U.S.C. § 2244(d). Accordingly, the Court should grant respondent's motion for summary judgment. If the Court accepts this recommendation, the Court should also deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural Background

Petitioner Lamont D. Robinson is a state prisoner, currently confined at the Bellamy Creek Correctional Facility in Ionia, Michigan. Petitioner is serving a life sentence imposed following his 1993 conviction for felony murder. Petitioner's application and the state court record reveal the following time line of the state court proceedings:

• Petitioner was convicted following a jury trial in the Wayne County Circuit Court. In July 1993 the trial court imposed its sentence.

• Petitioner, through counsel, filed a delayed application for leave to appeal in the Michigan Court of Appeals. The court of appeals issued an opinion affirming petitioner's convictions on September 12, 1995. See People v. Robinson, No. 167818 (Mich. Ct. App. Sept. 12, 1995).

• Petitioner filed a delayed application for leave to appeal in the Michigan Supreme Court. On October 22, 1996, the court denied petitioner's application, and on January 28, 1997, the court denied petitioner's motion for reconsideration. See People v. Robinson, 453 Mich. 912, 554 N.W.2d 904 (1996), reconsideration denied, 558 N.W.2d 726 (1997).

• Several years later, petitioner filed a motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.500-.509.¹ The trial court denied the motion on January 14, 2011. See People v. Robinson, No. 92-007691-01 (Wayne County, Mich., Cir. Ct. Jan. 14, 2011).

• Petitioner sought leave to appeal in the Michigan Court of Appeals. The court of appeals denied petitioner's application in a standard order on December 8, 2011. See People v. Robinson, No. 305178 (Mich. Ct. App. Dec. 8, 2011).

• Petitioner thereafter sought leave to appeal in the Michigan Supreme Court. That court denied petitioner's application for leave to appeal in a standard order on July 24, 2012. See People v. Robinson, 492 Mich. 853, 817 N.W.2d 88 (2012).

• Meanwhile, petitioner filed a second motion for relief from judgment in the trial court on February 14, 2012. The trial court denied this motion on January 15, 2013. See People v. Robinson, No. 92-007691-01 (Wayne County, Mich., Cir. Ct. Jan. 15, 2013).

• Petitioner sought leave to appeal in the Michigan Court of Appeals. The court dismissed petitioner's appeal on July 2, 2013. See People v. Robinson, No. 316416 (Mich. Ct. App. July 2, 2013).

• Petitioner thereafter sought leave to appeal in the Michigan Supreme Court. The court denied petitioner's application on December 13, 2013. See People v. Robinson, 840 N.W.2d 349.

On July 17, 2013, while petitioner's second motion for relief from judgment was pending on appeal, petitioner filed this application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254.²Petitioner raises nine grounds for relief: four claims of instructional error; prosecutorial misconduct; improper expert testimony; ineffective assistance of trial counsel; ineffective assistance of appellate counsel; and lack of probable cause. Petitioner filed a supplement to the petition on January 30, 2014, raising claims of perjured testimony and actual innocence based on newly discovered evidence. Respondent filed a motion for summary judgment on February 3, 2014, arguing that petitioner's habeas application is untimely. On February 19, 2014, petitioner filed a response to the motion. For the reasons that follow, the Court should grant respondent's motion for summary judgment and 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).³

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 provision of subparagraph (A) applies, 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 forcertiorari finally denied.").

Here, petitioner's direct appeal concluded on January 28, 1997, when the Michigan Supreme Court denied his motion for reconsideration. Petitioner's conviction became final 90 days later, or on April 28, 1997, when his time for seeking certiorari in the United States Supreme Court expired. Thus, the limitations period commenced on April 29, 1997, and expired one year later on April 29, 1998, absent any tolling.

Under § 2244(d)(2), the limitations period is tolled for "[t]he 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[.]" Petitioner's first motion for relief from judgment was filed in the trial court, at the earliest, in January 2008. By this time, the limitations period had been expired for almost 10 years. 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, defendant's motion for relief from judgment had no tolling effect, and petitioner's application is untimely.

2. Petitioner's Arguments

Although petitioner does not challenge the foregoing calculation of the limitations period, he does explicitly raise one argument for denying respondent's motion. Specifically, he contends that he is entitled to a delayed starting or equitable tolling of the limitations period based on his attempts to obtain counsel to assist him in filing his first motion for relief from judgment. Further, although not explicitly asserted by petitioner, his response suggests that he is raising three additional arguments: an entitlement to equitable tolling based on his various attorneys' withdrawal from the case; delayed starting based on newly discovered evidence; and actual innocence.

a. Attempts to Obtain Counsel

Petitioner contends that he filed motions for appointment of counsel on February 18 and March 1, 1998, but these were lost by the clerk, requiring him to file another motion for counsel. He was ultimately appointed counsel on August 31, 1998. He further contends that three of his appointed attorneys withdrew, and his motion was therefore not filed until January 2008. He contends that the misplacement of his motions for appointment of counsel constituted a state created impediment to filing, entitling him to a delayed starting of...