United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION
FOR DISMISSAL AND DENYING CERTIFICATE OF
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
Scott Elliot Jordan, a Michigan state prisoner currently
incarcerated at the Gus Harrison Correctional Facility in
Adrian, Michigan, filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254. He challenges
his conviction for second-degree home invasion. Respondent
has filed a motion for dismissal, arguing that the petition
should be denied because it is untimely. For the reasons
stated herein, the Court finds the petition for a writ of
habeas corpus is untimely and grants the Respondent's
motion. The Court declines to issue Petitioner a certificate
of appealability, and grants him leave to proceed on appeal
in forma pauperis.
pleaded guilty in Wayne County Circuit Court to second-degree
home invasion. On June 25, 2009, he was sentenced to 15 to 25
years' imprisonment. The trial court granted
Petitioner's motion for resentencing. Petitioner was
resentenced to 10 to 25 years' imprisonment on October
did not file a direct appeal in state court. On May 20, 2014,
Petitioner filed a motion for relief from judgment in the
trial court. The trial court denied the motion on August 12,
2014. See 8/12/2014 Op. & Ord. (ECF No. 10-4).
Petitioner filed a delayed application for leave to appeal in
the Michigan Court of Appeals. The Michigan Court of Appeals
denied leave to appeal. See 8/11/15 Order,
People v. Jordan, No. 327078 (ECF No. 10-7).
Petitioner then filed an application for leave to appeal in
the Michigan Supreme Court. The Michigan Supreme Court denied
leave to appeal. People v. Jordan, 500 Mich. 864
(Sept. 27, 2016).
filed the pending habeas petition on March 9, 2017.
Respondent has filed a motion for dismissal on the ground the
petition was not timely filed.
argues that the petition is barred by the one-year statute of
limitations. 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 . . . or
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)(A) & (D). The one-year limitation period
begins at the expiration of the deadline for filing a
petition for a writ of certiorari to the United States
Supreme Court. Lawrence v. Florida, 549 U.S. 327,
333 (2007). In addition, 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 re-fresh the limitation period. Vroman v.
Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
was sentenced on October 16, 2009. Because Petitioner did not
pursue a direct appeal of his conviction in the state courts,
the conviction became final one year later on October 16,
2010, when the time for filing a delayed application for
leave to appeal with the Michigan Court of Appeals expired.
See Mich. Ct. R. 7.205(G)(3) (amended 2011); Gonzalez v.
Thaler, 565 U.S. 134, 149 (2012) (confirming that a
judgment becomes final when the time for seeking direct
review expires). The one-year limitations period applicable
to habeas corpus petitions thus commenced on October 17,
2010, and continued to run until it expired on October 17,
motion for relief from judgment did not toll the limitations
period. The motion was filed on May 20, 2014, over two years
after the limitations period already expired.
Vroman, 346 F.3d at 602 (6th Cir. 2003) (holding
that the filing of a motion for collateral review in state
court serves to “pause” the clock, not restart
contends that his petition is timely because equitable
tolling of the limitations period is warranted on two
grounds: he was denied access to his court records and
transcripts from February 2010 to May 2014; and he was housed
in an out-of-state federal prison from February 2010 to
February 2012. Equitable tolling is available 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, 784 (6th Cir. 2010), quoting Graham-Humphreys v.
Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61
(6th Cir. 2000). The one-year limitations period applicable
to § 2254 is “subject to equitable tolling in
appropriate cases.” See Holland v. Florida,
560 U.S. 631, 645 (2010). To be entitled to equitable
tolling, a 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
(quotation omitted). A claim of actual innocence may also
justify equitable tolling in certain circumstances.
Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005).
A petitioner bears the burden of showing that he is entitled
to equitable tolling. Robertson, 624 F.3d at 784.
first seeks equitable tolling on the ground that he was
denied access to state court records and transcripts from
February 2010 through May 2014. The unavailability of
transcripts and other documents, or the delay in obtaining
them, is not a circumstance which justifies equitable tolling
of a limitations period. See Hall v. Warden,
Lebanon Correctional Inst., 662 F.3d 745, 750-51
(6th Cir. 2011) (citing cases). See also Heinemann v.
Murphy, 401 Fed. App'x 304, 309 (10th Cir. 2010)
(rejecting argument that inability to obtain a transcript
warrants equitable tolling); Donovan v. Maine, 276
F.3d 87, 93 (1st Cir. 2002) (same).
Petitioner seeks equitable tolling on the ground that his
transfer to an out-of-state federal prison left him without
access to an adequate law library and impeded his ability to
file a timely petition. Petitioner was sentenced on October
16, 2009. He states that in February 2010, he was transferred
to a federal prison outside Michigan, where he remained until
February 2012. Petitioner argues that, while in federal
custody, he lacked access to state court rules, statutes, and
other legal materials. These circumstances are insufficient
to warrant equitable tolling of the limitations period
because, even if they are accurate, Petitioner did not act
with diligence upon his return to state custody. After his
return to the custody of the Michigan Department of
Corrections in February 2012, Petitioner waited over two more
years before filing a motion for post-conviction collateral
review in state court. The Sixth Circuit Court of Appeals has
held that a habeas petitioner's failure to act to
preserve his rights for eighteen months evidences a lack of
diligence foreclosing equitable tolling of the limitations
period. Robinson v. Easterling, 424 F. App'x
439, 443 (6th Cir. 2011). The Sixth Circuit noted that it
“has never granted equitable tolling to a petitioner
who sat on his rights for a year and a half.”
Id. at 443.
has failed to show that he diligently pursued his rights upon
his return to custody in the State of Michigan. He delayed
over two years in filing a motion for relief from judgment in
the trial court and waited another five months after the
conclusion of state court collateral review before filing the
pending habeas corpus petition. These delays cannot be
attributable to Petitioner's out-of-state custody and