United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS,
DENYING CERTIFICATE OF APPEALABILITY, AND DENYING AS MOOT
PETITIONER'S MOTION FOR EVIDENTIARY HEARING
H. CLELAND UNITED STATES DISTRICT JUDGE.
Shumpert, a Michigan state prisoner, has filed a pro
se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He challenges his
convictions for carjacking, conspiracy to commit carjacking,
armed robbery, possession of a firearm during the commission
of a felony, resisting and obstructing, fleeing and eluding,
and carrying a concealed weapon. Respondent has filed a
motion to dismiss on the ground that the petition was not
timely filed. The court finds that the petition is untimely
and grants Respondent's motion. The court also declines
to issue a certificate of appealability.
a jury trial in Washtenaw County Circuit Court, Petitioner
was convicted and sentenced as follows: 15 to 30 years'
imprisonment for the carjacking, armed robbery, and
conspiracy to commit carjacking convictions; 40 to 60
months' imprisonment for the carrying a concealed weapon
and fleeing and eluding convictions; and 12 to 24 months'
imprisonment for resisting and obstructing. The sentences
were imposed to run concurrently with one another, but
consecutively to two years' imprisonment for the
filed an appeal of right in the Michigan Court of Appeals.
The Michigan Court of Appeals affirmed Petitioner's
convictions and sentences but remanded to the trial court for
correction of the judgment of sentence because, under state
law, only the armed robbery and carjacking sentences should
have been imposed consecutively to the felony-firearm
sentence; the conspiracy, carrying a concealed weapon, and
resisting and obstructing sentences should have been imposed
to run concurrently with the felony-firearm sentence.
People v. Shumpert, No. 292634, 2010 WL 4226610, *3
(Mich. Ct. App. Oct. 26, 2010). The Michigan Court of Appeals
noted that while the judgment of sentence required
correction, Petitioner's earliest release date was not
affected by the sentence. Id.
filed an application for leave to appeal in the Michigan
Supreme Court. The Michigan Supreme Court denied leave to
appeal on April 25, 2011. People v. Shumpert, 489
Mich. 897 (Mich. 2011).
April 10, 2012, Petitioner filed a habeas corpus
petition concerning the same convictions he challenges in the
pending petition. Petitioner then sought a stay of the
proceedings to allow him to exhaust his claims in state
court. On September 16, 2013, the court denied the motion for
stay and dismissed the petition without prejudice because
sufficient time remained in the one-year limitations period
to allow Petitioner to exhaust his claims in state court and
then return to federal court and file a new habeas
corpus petition. Shumpert v. Palmer, No. 12-11718,
2013 WL 5211889 (E.D. Mich.Sept. 16, 2013) (Rosen, J.).
filed a motion for relief from judgment in the trial court on
December 14, 2013. The trial court denied the motion.
(See Dkt. #11-14.) The Michigan Court of Appeals
denied Petitioner's application for leave to appeal the
trial court's decision. (See Dkt. #11-17.) The
Michigan Supreme Court also denied leave to appeal.
People v. Shumpert, 499 Mich. 855 (Mich. Feb. 2,
pending habeas petition was filed on April 13, 2016.
argues that the petition is barred by the one-year statute of
limitations. Title 28 U.S.C. § 2254(d), as amended by
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
applies to all habeas petitions filed after its
effective date, April 24, 1996, and imposes a one-year
limitations period for habeas petitions.
See 28 U.S.C. § 2244(d)(1). A prisoner must
file a federal habeas corpus petition within one
year of 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)(A) & (D). The time during which a prisoner
seeks state-court collateral review of a conviction does not
count toward the limitation period. 28 U.S.C. §
2244(d)(2); Ege v. Yukins, 485 F.3d 364, 371-72 (6th
Cir. 2007). A properly filed application for state
post-conviction relief, while tolling the limitation period,
does not reset the limitation period at zero. Vroman v.
Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
appealed his conviction first to the Michigan Court of
Appeals, and then to the Michigan Supreme Court. The Michigan
Supreme Court denied his application for leave to appeal on
April 25, 2011. Petitioner had ninety days from that date to
file a petition for writ of certiorari with the
United States Supreme Court, which he did not do. Thus, his
conviction became final on July 25, 2011, when the time
period for seeking certiorari expired. Bronaugh
v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (one-year
statute of limitations does not begin to run until the time
for filing a petition for a writ of certiorari for
direct review in the United States Supreme Court has
expired). The last day on which a petitioner can file a
petition for a writ of certiorari in the United
States Supreme Court is not counted toward the one-year
limitations period applicable to habeas corpus
petitions. Id. at 285. Accordingly, the limitations
period commenced on July 26, 2011. Petitioner filed his first
habeas corpus petition on April 10, 2012. The court
assumes without deciding that the filing of this petition
equitably tolled the limitations period with 106 days
remaining. The court dismissed the first habeas
petition without prejudice on September 16, 2013.
Shumpert, 2013 WL 5211889 at *3. The limitations
period resumed running on September 17, 2013. Petitioner
filed a motion for relief from judgment in the trial court on
December 14, 2013. This properly filed application for state
post-conviction relief tolled the limitations period with
only 18 days remaining. See Wall v. Kholi, 562 U.S.
545, 550 (2011). The limitations period resumed running on
February 3, 2016, when Petitioner's application for
post-conviction relief was no longer pending in state court.
The limitations period expired on February 21, 2016.
Petitioner did not file the pending habeas petition
until April 13, 2016, fifty-two days after the limitations
argues that the limitations period should be equitably tolled
because he is actually innocent. The Supreme Court has held
that a showing of actual innocence overcomes AEDPA's
statute of limitations. McQuiggin v. Perkins, 133
S.Ct. 1924, 1928(2013). To determine whether a petitioner has
satisfied the requirements for establishing a cognizable
claim of actual innocence to warrant equitable tolling, the
court applies “the same actual innocence standard
developed in Schlup v. Delo, 513 U.S. 298 (1995),
for reviewing a federal habeas applicant's
procedurally defaulted claim.” McCray v.
Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007) (citing
Souter v. Jones, 395 F.3d 577, 596 (6th Cir. 2005)).
A valid claim of actual innocence requires a petitioner
“to support his allegations of constitutional error
with new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness account, or
critical physical evidence-that was not presented at
trial.” Schlup, 513 U.S. at 324.“The
Schlup standard is demanding and permits review only
in the ‘extraordinary' case.” House v.
Bell, 547 U.S. 518, 538 (2006) (citation omitted). A
court presented with new evidence must consider it in light
of “all the evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily
be admitted under rules of admissibility that would govern at
trial.” Id. at 538 (citation omitted).
“Based on this total record, the court must make
‘a probabilistic determination about what reasonable,
properly instructed jurors would do.'” Id.
(quoting Schlup, 513 U.S. at 329). This standard
does not require absolute certainty about the
petitioner's guilt or innocence:
A petitioner's burden at the gateway stage is to
demonstrate that more likely than not, in light of the new
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt-or, to remove the double negative, that more