United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO AMEND (ECF NO. 15), GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSAL OF THE PETITION (ECF NO. 12), DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING IN FORMA PAUPERIS STATUS ON APPEAL
VICTORIA A. ROBERTS, District Judge.
Petitioner Aaron Hernandez, a state prisoner at Central Michigan Correctional Facility in St. Louis, Michigan, filed a pro se habeas corpus petition in 2014. Respondent Linda Tribley moved for summary judgment and dismissal of the petition on the ground that the petition is time-barred. Petitioner filed a reply and a motion to amend his petition to clarify his initial claims. The Court grants Petitioner's motion to amend the petition, but because the petition is time-barred and meritless, the Court will grant Respondent's motion for summary judgment and dismissal of the petition.
Petitioner initially was charged in Wayne County, Michigan with criminal sexual conduct in the first degree, assault with intent to commit sexual penetration, home invasion in the first degree, assault with intent to commit great bodily harm less than murder, stalking, and a telecommunications offense. On July 18, 2008, Petitioner pleaded guilty in Wayne County Circuit Court to first-degree home invasion, second offense, Mich. Comp. Laws § 750.110a(2), assault with intent to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84, and misdemeanor stalking, Mich. Comp. Laws § 750.411h. In return, the prosecutor dismissed the counts charging Petitioner with first-degree criminal sexual conduct, assault with intent to commit sexual penetration, and the telecommunications offense. The prosecutor reduced the stalking charge to a misdemeanor, and the parties agreed to a sentence of six to twenty years for the home invasion.
On August 6, 2008, the trial court sentenced Petitioner to concurrent terms of six to twenty years for the home invasion and one to ten years for the assault, with 145 days of jail credit. The court sentenced Petitioner to thirty days probation for the stalking conviction and ordered restitution in the amount of $3, 950.00.
In a delayed application for leave to appeal, Petitioner argued through counsel that (1) his guilty plea was not intelligent, voluntary, and knowing, (2) it was error to score offense variables 12 and 13 of the state sentencing guidelines, and (3) trial counsel was ineffective for failing to object to the scoring of the guidelines and for failing to preserve an objection to the assessment of restitution. The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." See People v. Hernandez, No. 293425 (Mich. Ct. App. Nov. 16, 2009).
On February 12, 2010, Petitioner filed a pro se habeas corpus petition in this Court. The Court dismissed the petition without prejudice for failure to exhaust state remedies. See Hernandez v. McQuiggin, No. 2:10-cv-10640 (E.D. Mich. Feb. 25, 2010).
Meanwhile, Petitioner appealed to the Michigan Supreme Court, raising the same three issues that he presented to the Michigan Court of Appeals. He also raised a new claim about offense variable 19 of the sentencing guidelines. On June 28, 2010, the supreme court denied leave to appeal because it was not persuaded to review the issues. People v. Hernandez, 486 Mich. 1042; 783 N.W.2d 336 (2010). Petitioner moved for reconsideration, but, on September 9, 2010, Court declined to reconsider its prior decision. See People v. Hernandez, 488 Mich. 859; 787 N.W.2d 484 (2010).
Petitioner did not file a petition for writ of certiorari in the United States Supreme Court; on December 8, 2010, the deadline for doing so expired. Over ten months later - on October 14, 2011 - Petitioner filed a motion for relief from judgment. He argued through counsel that: (1) his presentence information report contained false and inaccurate information; (2) he received ineffective assistance of counsel at sentencing; (3) he was entitled to an additional sixteen days of jail credit; (4) he was improperly assessed ten points for offense variable 12 and offense variable 13 of the sentencing guidelines, and he was improperly assessed points under offense variables 10 and 19; and (5) the amount of restitution that he was ordered to pay was unproven and excessive. The trial court denied Petitioner's motion in a reasoned opinion, and the Michigan Court of Appeals denied leave to appeal the trial court's decision because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Hernandez, No. 310978 (Mich. Ct. App. Dec. 14, 2012). On October 23, 2013, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Hernandez, 495 Mich. 875; 838 N.W.2d 147 (2013). On May 28, 2014, Petitioner filed his habeas corpus petition,  and on February 26, 2015, he filed his motion to amend the petition, along with an amended petition for the writ of habeas corpus.
II. The Statute of Limitations
A. 28 U.S.C. § 2244(d)
Respondent argues in her motion for summary judgment and dismissal of the petition that Petitioner's claims are barred from review by the one-year statute of limitations. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year period of limitation for state prisoners to file a federal petition for writ of habeas corpus. Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C. § 2244(d)(1)). The period of limitations runs from the latest of the following four dates:
(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). The limitations period is tolled while 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. 28 U.S.C. § 2244(d)(2).
Petitioner is not relying on a newly recognized constitutional right or on newly discovered facts, and he has not shown that the State created an impediment to filing a timely habeas petition. Cf. 28 U.S.C. § 2244(d)(1)(B-D). Consequently, the statute of limitations began to run when Petitioner's convictions "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)(A). "Direct review" concludes for purposes of subsection 2244(d)(1)(A) when the availability of direct appeal to the state courts and to the United States Supreme Court has been exhausted. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009).
For petitioners who pursue direct review all the way to [the Supreme] Court, the judgment becomes final at the "conclusion of direct review"- when [the Supreme] Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the "expiration of the time for seeking such review"-when the time for pursuing direct review in [the Supreme] Court, or in state court, expires. Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012). A petition for writ of certiorari to review a judgment entered by a state's highest court must be filed in the United States Supreme Court no later than ninety days after entry of the state court's judgment. Sup. Ct. R. 13.1.
Petitioner did not seek review in the United States Supreme Court on direct review of his convictions. Therefore, his convictions became final on December 8, 2010, ninety days after the Michigan Supreme Court denied reconsideration on direct review. The one-year statute of limitations began to run on the following day, Miller v. Collins, 305 F.3d 491, 495 n.4 (6th Cir. 2002), and it ran 309 days until October 14, 2011, when Petitioner filed his motion for relief from judgment in the state trial court.
The limitations period was tolled from October 14, 2011, until October 23, 2013, when the Michigan Supreme Court denied leave to appeal the trial court's denial of Petitioner's motion for relief from judgment. See 28 U.S.C. § 2244(d)(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."); see also Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (stating that an application for state collateral review "is pending as long as the ordinary state collateral review process is in continuance' - i.e., until the completion of' that process. In other words, until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains pending.'").
On October 24, 2013, the limitations period resumed running, and Petitioner had 56 days, or until December 18, 2013, to file his habeas petition. Because Petitioner waited until May 28, 2014, to file his petition, the petition is untimely.
C. Equitable Tolling
Petitioner concedes that his habeas petition is untimely, but urges the Court to equitably toll the limitations period. "The doctrine of equitable tolling allows courts to toll a statute of limitations when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'" Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). The habeas statute of limitations "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). Nevertheless, to have a limitations period equitably tolled, the petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir. 2011) (adopting Holland's two-part test for determining whether a habeas petitioner is entitled to equitable tolling).
1. The Post-Conviction Attorney's Advice
Petitioner argues that the advice given to him by his attorney on state collateral review is the reason for his untimely habeas petition. Sometimes, professional misconduct can "amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling." Holland, 560 U.S. at 651. And, in this case, Petitioner's post-conviction attorney provided misleading advice to Petitioner after the state courts concluded their review of Petitioner's motion for relief from judgment. The attorney stated in a letter to Petitioner dated October 25, 2013, that one of Petitioner's options at that point was to file a petition for writ of habeas corpus in federal district court. The attorney then stated that a habeas petition must be filed within one year after the deadline expires to file a petition for writ of certiorari in the United States Supreme Court. See Petitioner's Reply to Respondent's Motion for Summary Judgment, Ex. A.
The attorney's comment about the deadline for filing a habeas corpus petition in federal court was misleading; it failed to acknowledge that the limitations period in Petitioner's case had already run approximately ten months: from the time that Petitioner's convictions became final on direct review (December 8, 2010) until Petitioner filed his motion for relief from judgment on October 14, 2011. The attorney also failed to advise Petitioner that the limitations period is not tolled under 28 U.S.C. § 2244(d)(2) for the time during which a petition for writ of certiorari in the Supreme Court can be filed following state collateral review. See Lawrence v. Florida, 549 U.S. 327, 333-36 (2007) (concluding that the limitations period is not tolled during the pendency of a petition for writ of certiorari following state post-conviction review); cf. Gonzalez, 132 S.Ct. at 653-54 (explaining that, for prisoners who do not pursue direct review all the way to the Supreme Court, a prisoner's judgment becomes final on direct review "when the time for pursuing direct review in [the Supreme] Court, or in state court, expires").
Despite the misleading advice offered by Petitioner's post-conviction attorney, the Supreme Court has said that "miscalculation [of the limitations period] is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel." Lawrence, 549 U.S. at 336-37 (citing Coleman v. Thompson, 501 U.S. 722, 756-77 (1991)); accord Martin v. Hurley, 150 F.App'x 513, 516 (6th Cir. 2005) (stating that "attorney error is an inadequate justification for equitable tolling in this circuit"); Whalen v. Randle, 37 F.App'x 113, 120 (6th Cir. 2002) (stating that a lawyer's mistake generally is not a valid basis for equitable tolling); Elliott v. Dewitt, 10 F.App'x 311, 313 (6th Cir. 2001) (stating that "an attorney's mistake which results in missing the filing deadline imposed by the AEDPA is not a basis for equitable tolling"); see also Maples v. Thomas, 132 S.Ct. 912, 922 (2012) (declining to disturb the general rule that, "when a petitioner's postconviction attorney misses a filing deadline, the petitioner is bound by the oversight and cannot rely on it to establish cause" for a procedural default, and contrasting that situation with a situation where an attorney abandons his client without notice). Improper advice from an attorney and the receipt of incorrect information from an attorney about the filing deadline for a habeas petition simply do not qualify a petitioner for equitable tolling. Whalen, 37 F.App'x at 119-20.
Although the Supreme Court reversed the judgment of conviction in Holland, the problem there was not only "simple negligence" (failing to file a habeas petition on time and being unaware of the date on which the limitations period expired), but also the attorney's failure to: file the habeas petition on time despite the petitioner's many letters emphasizing the importance of doing so; perform the research necessary to determine the proper filing date despite the petitioner's letters identifying the applicable legal rules; inform the petitioner in a timely manner that the state supreme court had decided his case; and communicate with the petitioner over a period of years. Holland, 560 U.S. at 562.
These failures are not present here. Petitioner's post-conviction attorney communicated with Petitioner and promptly informed him that the Michigan Supreme Court had decided his case. The attorney also offered to represent Petitioner in federal court if Petitioner made the appropriate arrangements. Petitioner apparently did not take advantage of the offer, and there is no indication in the pleadings that Petitioner emphasized the ...