Wright v. Shaver

• Decision Date: 09 June 2022
• Docket Number: Case No. 1:21-cv-12010
• Citation: 606 F.Supp.3d 724
• Parties: Tabu WRIGHT, Petitioner, v. David SHAVER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

606 F.Supp.3d 724

Tabu WRIGHT, Petitioner,

v.David SHAVER, Respondent.

Case No. 1:21-cv-12010

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

Signed June 9, 2022

Tabu Wright, Jackson, MI, Pro Se.

Andrea M. Christensen-Brown, Scott Robert Shimkus, Michigan Department of Attorney General, Criminal Appellate Division, Lasnsing, MI, for Respondent.

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS, DENYING MOTION TO GRANT THE PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

THOMAS L. LUDINGTON, United States District Judge

Petitioner Tabu Wright, incarcerated at the Parnall Correctional Facility in Jackson, Michigan, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner pleaded nolo contendere in the Wayne County Circuit Court to one count of first-degree criminal sexual conduct (CSC), MICH. COMP. LAWS § 750.520(b)(1)(e). He was sentenced to 12 to 25 years in prison. He was denied parole on this conviction on April 23, 2021. Petitioner now argues that the sentencing judge used inaccurate information about two prior escape convictions, of which Petitioner claims he was never convicted, causing the presentence investigation report to contain inaccuracies. He also alleges the Michigan Parole Board denied parole based on the inaccuracies.

Respondent argues that any challenges to the underlying convictions are barred by the statute of limitations, are procedurally defaulted, or both, and that Petitioner's parole-denial claim is not cognizable.

The statute of limitations bars Petitioner's claims concerning his underlying convictions, and his parole-denial claim is not cognizable. Accordingly, the Petition will be denied with prejudice.

I.

Petitioner pleaded nolo contendere to one count of first-degree criminal sexual conduct and was sentenced on September 13, 2006, to 12 to 25 years in prison. ECF No. 18-1 at PageID.195–96.

Petitioner did not appeal his conviction. ECF No. 18-2 at PageID.203. On July 14, 2014, he filed a "Motion to Remand" in the Wayne County Circuit Court. ECF No. 18-1 at PageID.196.¹ The Judge construed the motion as a postconviction motion for relief from judgment filed under Michigan Court Rule 6.500, et. seq. and denied the motion on March 17, 2015. People v. Wright , No. 06-6477-01-FC (Mich. Cir. Ct. Wayne Cnty. Mar. 17, 2015); ECF No. 18-2 at PageID.203. Petitioner did not appeal the denial of this motion to the Michigan Court of Appeals or to the Michigan Supreme Court.

The Michigan Parole Board denied Petitioner parole on April 23, 2021. ECF Nos. 4 at PageID.30; 12 at PageID.127.

Petitioner signed and dated the instant Petition on August 3, 2021.² ECF No. 1 at PageID.11. In his original and supplemental pleadings, Petitioner argues that the sentencing judge violated Petitioner's right to due process by considering inaccurate information in imposing the sentence. Id. at PageID.2. Petitioner specifically alleges that the presentence investigation report stated that Petitioner has two prior escape convictions, which he denies having. Id. at PageID.2–3. He also alleges that the Parole Board has used this inaccurate information to deny him parole. Id.

II.

Petitioner's challenges to his underlying convictions are barred by the statute of limitations, and his parole-denial claim is not cognizable.

A.

1.

In the statute-of-limitations context, "dismissal is appropriate only if a complaint clearly shows the claim is out of time." Harris v. New York , 186 F.3d 243, 250 (2nd Cir. 1999) ; see also Cooey v. Strickland , 479 F.3d 412, 415–16 (6th Cir. 2007).

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 it governs the filing date for the habeas application in this case because Petitioner filed his Petition after AEDPA's effective date. See Lindh v. Murphy , 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA amended 28 U.S.C. § 2244 to include a one-year period of limitations for habeas petitions brought by prisoners challenging state-court judgments. See Vroman v. Brigano , 346 F.3d 598, 601 (6th Cir. 2003). 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).

Although not jurisdictional, AEDPA's one-year limitations period "effectively bars relief absent a showing that the petition's untimeliness should be excused based on equitable tolling and actual innocence." See Akrawi v. Booker , 572 F.3d 252, 260 (6th Cir. 2009). A habeas petition filed outside the times provided in § 2244(d) must be dismissed. See Isham v. Randle , 226 F.3d 691, 694–95 (6th Cir. 2000) (dismissing a habeas case filed thirteen days after the limitations period expired as untimely), abrogated on other grounds by Abela v. Martin , 348 F.3d 164, 172–73 (6th Cir. 2003) ; Neal v. Bock , 137 F. Supp. 2d 879, 885 (E.D. Mich. 2001) (dismissing as untimely a habeas petition filed more than one month after the limitations period had expired).

This Court must first determine when Petitioner's conviction became "final" to determine when the limitations period began running. See Williams v. Wilson , 149 F. App'x 342, 345 (6th Cir. 2005) (unpublished). Under § 2244(d)(1)(A), a state-court judgment becomes "final" when direct review by the state court ends or when the time to seek direct review expires, whichever comes later. See Wilberger v. Carter , 35 F. App'x 111, 114 (6th Cir. 2002) (unpublished).

At the time of Petitioner's conviction, he had 12 months from the date of sentencing to file a delayed application for leave to appeal with the Michigan Court of Appeals. See Mich. Ct. R. 7.205(F)(3). Therefore, Petitioner had until September 3, 2007, to seek direct review under 28 U.S.C. § 2244(d)(1)(A), which was one year after the trial court sentenced him on September 3, 2006. See, e.g., Williams v. Birkett , 670 F.3d 729, 731 (6th Cir. 2012). Accordingly, Petitioner had until September 3, 2008, to timely file his petition for a writ of habeas corpus with this Court.

Petitioner filed his postconviction motion with the trial court on July 14, 2014, which was nearly six years after the one-year limitations period expired. A state-court postconviction motion that is filed after the one-year limitations period does not toll that period under 28 U.S.C. § 2244(d)(2), as the limitations period has elapsed. See Jurado v. Burt , 337 F.3d 638, 641 (6th Cir. 2003) ; see also Hargrove v. Brigano , 300 F.3d 717, 718, n.1 (6th Cir. 2002).

For these reasons, the Petition is untimely.

2.

AEDPA's statute of limitations "is subject to equitable tolling in appropriate cases." Holland v. Florida , 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). A habeas petitioner is entitled to equitable tolling "only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way,’ " preventing the timely filing of the habeas petition. Id. at 649, 130 S.Ct. 2549 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ). The Sixth Circuit has observed that "the doctrine of equitable tolling is used sparingly by federal courts." See Robertson v. Simpson , 624 F.3d 781, 784 (6th Cir. 2010). The burden is, thus, on habeas petitioners to show that they are entitled to the equitable tolling of the one-year limitations period. Id.

Petitioner failed to offer any reasons to excuse the untimely filing of his Petition. Even being untrained in the law or proceeding without a lawyer does not justify equitable tolling. See Keeling v. Warden, Lebanon Corr. Inst. , 673 F.3d 452, 464 (6th Cir. 2012) (holding that pro se status is not an extraordinary circumstance); Allen v. Yukins , 366 F.3d 396, 403 (6th Cir. 2004) (holding that ignorance of the law does not justify tolling); Cobas v. Burgess , 306 F.3d 441, 444 (6th Cir. 2002) (holding that illiteracy is not a basis for equitable tolling); Rodriguez v. Elo , 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002) (holding that the law is "replete with instances which firmly establish that ignorance of the law, despite a litigant's pro se status, is no excuse" for failure to follow legal requirements); Holloway v. Jones , 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001) (holding that lack of professional legal assistance does not justify tolling).

The one-year statute of limitations may be equitably tolled based upon a credible showing of actual innocence under the standard enunciated in Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). McQuiggin v. Perkins , 569 U.S. 383, 386, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). The Supreme Court has cautioned, however, that "tenable actual-innocence gateway pleas are rare[.]" Id. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (quoting Schlup , 513 U.S. at 329, 115 S.Ct. 851 ); see also William E. Thro, No Angels in Academe: Ending the Constitutional Deference to Public Higher Education , 5 BELMONT L. REV. 27, 55 (2018) (stating that...