Sitto v. Bock

• Decision Date: 18 June 2002
• Docket Number: No. 00-10267-BC.,00-10267-BC.
• Citation: 207 F.Supp.2d 668
• Parties: Omar SITTO, Petitioner, v. Barbara BOCK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

207 F.Supp.2d 668

Omar SITTO, Petitioner, v. Barbara BOCK, Respondent.

No. 00-10267-BC.

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

June 18, 2002.

COPYRIGHT MATERIAL OMITTED

N.C. Deday LaRene, LaRene & Kriger, Detroit, MI, for plaintiff.

Janet Van Cleve, Mich. Dept. of Atty. Gen., Lansing, MI, for defendant.

OPINION AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS, PERMITTING AMENDMENT TO PETITION, AND ADMINISTRATIVELY CLOSING CASE

LAWSON, District Judge.

The petitioner, Omar Sitto, is presently confined at the Saginaw Correctional Facility in Saginaw, Michigan. He has filed through counsel a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is in custody in violation of his federal constitutional rights. The Magistrate Judge entered an order on July 7, 2000 requiring the respondent to respond to the allegations in the petition, including filing pertinent portions of the state court record, by September 29, 2000, as required by Rule 5, Rules Governing Section 2254 Cases. On October 10, 2000, this Court enlarged the respondent's response time to December 29, 2000, pursuant to the respondent's request. Instead of answering the petition, the respondent filed on February 1, 2001 a motion to dismiss the petition for failure to comply with the applicable statute of limitations. The petitioner promptly filed a response to the motion. The respondent filed the Rule 5 materials on December 17, 2001, following the issuance of a show cause order by the magistrate judge on November 26, 2001.

The motion to dismiss presents the question whether the petitioner's post-conviction motion sufficiently alleged a federal claim, as required by the Sixth Circuit's decision in Austin v. Mitchell, 200 F.3d 391, 393-94 (6th Cir.1999), that triggered the statute-of-limitation tolling provisions of 28 U.S.C. § 2244(d)(2). The Court finds that the state post-conviction motion does not satisfy Austin's requirements, but that the doctrine of equitable tolling applies to the petition, saving it from a statute of limitations violation. However, the Court determines that the petition contains unexhausted claims which will require a return to state court, or the filing of an amended petition.

I.

The petitioner was convicted in 1993 after a jury trial in the Oakland County, Michigan Circuit Court of conspiracy to possess with intent to deliver 650 grams of cocaine. Mich. Comp. Laws § 750.157a & 333.7401(2)(a)(1). He was sentenced to a mandatory term of life imprisonment without possibility of parole. The petitioner's conviction was affirmed in his appeal of right, People v. Omar Sitto, No. 170049, 1997 WL 33354578 (Mich.Ct.App. Jan.10, 1997) (per curiam), and a motion for rehearing in the Michigan Court of Appeals was denied. People v. Omar Sitto, No. 170049 (Mich.Ct.App. Apr.3, 1997). The Michigan Supreme Court denied the petitioner's application for leave to appeal on November 7, 1997. People v. Omar Sitto, No. 109210, 1997 WL 696855 (Mich. Nov.7, 1997). The petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

On October 7, 1998, the petitioner filed a motion for relief from judgment pursuant to Mich. Ct. R. 6.500 in the state trial court. The sole ground for relief was the claim that the key witness that connected the petitioner to the drug conspiracy had recanted his testimony, and the petitioner was entitled to a new trial under state procedural rules. The state trial court denied the motion for relief from judgment on June 14, 1999, finding that although the recanting witness' testimony was important, and the petitioner satisfied the "cause" prong of the state rule for not raising the issue in his direct appeal, there was still sufficient evidence in the record to support the petitioner's conviction and therefore the petitioner could not meet the "prejudice" requirement of the state court rule. On October 8, 1999, the Michigan Court of Appeals denied the petitioner's application for leave to appeal "for lack of merit in the grounds presented." People v. Omar Sitto, No. 220635 (Mich.Ct.App. Oct. 8, 1999). On March 28, 2000, the Michigan Supreme Court denied the petitioner's application for leave to appeal "because the defendant has failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Omar Sitto, No. 115690, 2000 WL 374959 (Mich. Mar. 28, 2000). On April 12, 2000, the petitioner filed a timely motion for reconsideration in the Michigan Supreme Court. There is no evidence in the record as to the disposition of this motion, although the petitioner alleges in his response to the motion to dismiss that the state post-conviction proceedings terminated on June 26, 2000. As noted below, however, the amount of time between the initial leave denial by the Michigan Supreme Court and the disposition of the rehearing motion does not impact the timeliness of the habeas petition in this court.

Sitto filed his petition for writ of habeas corpus through counsel in this Court on July 20, 2000. Included among the claims for relief is the following allegation:

The Michigan courts' refusal to grant petitioner a hearing on his newly discovered evidence claims, or to set aside his conviction on the basis of evidence which established his innocence, denied him due process.

The petition also sets forth four other claims.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996, and governs the filing date for the habeas application in this case because petitioner filed his petition after the effective date of the Act. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Matthews v. Abramajtys, 39 F.Supp.2d 871, 873 (E.D.Mich.1999). The one year statute of limitations runs 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). If a habeas petition is filed outside the time period prescribed by this section, the petition must be dismissed. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir.2000), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001) (case filed thirteen days after the limitations period expired dismissed for failure to comply); Thomas v. Straub, 10 F.Supp.2d 834, 835 (E.D.Mich.1998).

Although prisoners whose direct appeals concluded prior to the AEDPA's effective date have a one-year grace period to file their habeas petitions, see Brown v. O'Dea, 187 F.3d 572, 576-577 (6th Cir. 1999), when the "finality date" of the conviction occurs after the effective date of the AEDPA, the commencement of the one-year filing period is measured by the criteria set forth in § 2244(d)(1)(A)-(D). A Michigan prisoner's conviction becomes "final" ninety days after the Michigan Supreme Court renders its decision denying leave to appeal or on the merits, accounting for the period within which the defendant may apply to the United States Supreme Court for a writ of certiorari. If a certiorari petition is actually filed, then the conclusion of Supreme Court proceedings establishes the finality date under § 2244(d)(1). 28 U.S.C. § 2244(d)(1)(A); Sup.Ct. R. 13(1); Allen v. Hardy, 478 U.S. 255, 258 n. 1, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986); see Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000).

Under this formula, Sitto's conviction became "final" on February 4, 1998, ninety days after the Michigan Supreme Court denied his leave application. He therefore had until February 4, 1999 to file his habeas petition, unless the statute was tolled.

Title 28, § 2244(d)(2) provides that: "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." According to Austin v. Mitchell, however, this section is ineffective to toll the statute unless the post-conviction papers are both "properly filed" and address "the pertinent judgment or claim." Austin, 200 F.3d at 394-95. An application for post-conviction relief is "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2) if it is submitted in accordance with the state's procedural requirements, meaning the rules governing the time and place for filing. Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). The application presents a "pertinent judgment or claim" if it "present[s] a federally cognizable claim" that is also raised in the federal habeas petition. Austin, 200 F.3d at 394-95. A post-conviction motion "remains pending" during all intervals between state court actions and until the Michigan Supreme Court decides or denies an appeal. Matthews, 39 F.Supp.2d at 874; Hudson v. Jones, 35 F.Supp.2d 986, 988-89 (E.D.Mich.1999). However, a petitioner is not allowed an additional ninety days—i.e., the time within which he could file a petition for writ of certiorari in the United States Supreme Court—of tolling in the case of post-conviction motions. See Isham, 226 F.3d at 694-95 (hold...