United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS (Dkt. 9); (2) DECLINING TO ISSUE A CERTIFICATE
OF APPEALABLITY; AND (3) GRANTING PERMISSION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS
MARK A. GOLDSMITH JUDGE
Herbert Witherspoon, currently confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, filed a
petition, through counsel, for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Dkt. 1). He challenges his
2010 convictions for first-degree premeditated murder,
first-degree felony murder, kidnapping, first-degree home
invasion, and possession of a firearm during the commission
of a felony. The Court ordered Petitioner to show cause why
the case should not be dismissed for failure to comply with
the statute of limitations (Dkt. 2). The Court finds that the
Petitioner failed to comply with the applicable one-year
statute of limitations and is not entitled to equitable
tolling. The petition, therefore, is dismissed as untimely.
was convicted by a jury in Macomb County Circuit Court and
sentenced, on March 9, 2010, to concurrent prison terms of
life without parole for the first-degree murder conviction,
285 months to 40 years for the kidnapping conviction, and 10
to 20 years for the first-degree home invasion conviction. He
was also sentenced to a consecutive prison term of two years
for the felony-firearm conviction. The Michigan Court of
Appeals affirmed Petitioner's convictions and sentences.
People v. Witherspoon, No. 302711, 2013 WL 1352458
(Mich. Ct. App. Apr. 4, 2013). On September 30, 2013, the
Michigan Supreme Court denied leave to appeal. People v.
Witherspoon, 843 N.W.2d 140 (Mich. 2013) (table).
filed this petition on February 19, 2015 (Dkt. 1). In
response to the show-cause order, Petitioner filed a brief in
support of his petition (Dkt. 3), a letter from
Petitioner's mother (Dkt. 4), and an affidavit executed
by Petitioner (Dkt. 5).
Antiterrorism and Effective Death Penalty Act of 1996 imposes
a one-year statute of limitations for filing a federal habeas
corpus petition. 28 U.S.C. § 2244(d)(1). Generally, a
habeas petition must be filed 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).
Petitioner's convictions became final on December 29,
2013, 90 days after the Michigan Supreme Court denied the
application for leave to appeal on September 20, 2013.
See People v. Witherspoon, 843 N.W.2d 140 (Mich.
2013) (table); Bronaugh v. Ohio, 235 F.3d 280, 283
(6th Cir. 2000). The statute of limitations began to run on
December 30, 2013. It continued to run, without interruption,
until it expired on December 29, 2014.
admits that his petition was not filed within the one-year
limitations period but argues that the limitations period
should be equitably tolled based upon the failure of two
attorneys retained to file a habeas petition to do so. In
support of this argument, Petitioner states that, sometime in
September 2014, he hired an attorney to prepare and file a
federal habeas corpus petition. See Affidavit of
Herbert Witherspoon ¶ 2 (Dkt. 5). A month after
receiving a down payment from Petitioner's mother, the
attorney returned half of the down payment and told
Petitioner that he could not represent him. See id.
¶ 3. Petitioner states that his mother then retained
another attorney to represent him. See id. ¶ 4.
Petitioner learned just ten days before the habeas filing
deadline that the attorney was returning the money paid to
her and withdrawing from the case. See id. ¶ 6.
Neither Petitioner's affidavit nor his mother's
letter specifies the date on which Petitioner's present
attorney (who filed the pending petition) was retained.
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 (internal quotation marks omitted).
is no constitutional right to the effective assistance of
counsel in the preparation of a federal habeas corpus
petition. Ritchie v. Eberhart, 11 F.3d 587, 592 (6th
Cir. 1993); Coleman v. Thompson, 501 U.S. 722, 752
(1991). Therefore, the constitutional effectiveness of
counsel on federal habeas review generally will not support
equitable tolling of the limitations period. See
Holland, 560 U.S. at 652; Brown v. United
States, 20 Fed.Appx. 373, 375 (6th Cir. 2000). However,
serious attorney misconduct such as abandonment may
constitute extraordinary circumstances and “a client
[cannot] be faulted for failing to act on his behalf when he
lacks reason to believe his attorneys of record, in fact, are
not representing him.” Maples v. Thomas, 565
U.S. 266, 283 (2012).
Maples v. Thomas, the United States Supreme Court
considered attorney abandonment in the context of procedural
default. After filing a petition for state post-conviction
relief on the petitioner's behalf, the petitioner's
two pro bono attorneys left the law firm at which they had
begun representation and took other employment that prevented
them from continuing to represent him. Id. at 270.
They did not inform the petitioner they were no longer
representing him, did not seek permission to withdraw from
the case, or move for the appointment of new counsel.
Id. at 270-71. Notice of the trial court's
denial of post-conviction relief, mailed to the attorneys at
their former firm, was returned unopened as undeliverable,
and the time within which an appeal could have been filed
expired with no appeal taken. Id. at 271. The state
court of criminal appeals denied the petitioner's request
to file a late appeal. Id. at 271. His claims were
Supreme Court held that “the uncommon facts” of
that case established cause to excuse the petitioner's
procedural default of his claims. Id. at 280.
Petitioner had been “left without any functioning
attorney of record, ” during the entire 42-day time
within which he could have appealed the denial of
post-conviction relief, and, by counsels' failure to
withdraw, the petitioner “had no right to personally
receive notice.” Id. at 288. The Court
reasoned that an attorney who abandons a client without
notice severs the principal-agent relationship, so that the
attorney's failure to act may no longer be fairly imputed
to the former client. Id. at 280-81.
contrast, in this case, Petitioner was not misled into a
false sense of security during the entire one-year
limitations period that counsel was pursuing his interests.
By his own admission he did not retain his first attorney
until sometime in September 2014, after eight months of the
limitations period already elapsed. See Affidavit of
Herbert Witherspoon ¶ 2 (Dkt. 5). One month later
(sometime in October 2014, ) a second attorney was hired.
Id. ¶ 4. Petitioner was himself clearly aware
of the limitations period because he states that the second
attorney knew that he had only two or three months left to
file his petition. See Brief in Support of Pet. at
23 (ECF No. 3, Pg. ID 44). With just ten days remaining in
the one-year limitations period, Petitioner learned that the
second attorney would not be filing a petition on his behalf.
See id. ¶ 6. Petitioner, knowing the deadline
was fast approaching, did not file a habeas petition.
Instead, he again sought to hire an attorney who ultimately
filed the pending petition on February 19, 2015.
assuming (without deciding) the negligence of
Petitioner's first two retained attorneys, Petitioner
fails to present the extraordinary circumstance necessary to
warrant equitable tolling of the limitations period.
Petitioner has failed to demonstrate that “he lacked a
clue of any need to protect himself pro se.”
Maples, 565 U.S. at 271. Indeed, he was made aware
before expiration of the limitations period that he needed to
protect himself pro se. Petitioner was not prevented
from filing a habeas corpus petition in the eight months
after his judgment became final. He was made aware within a
month of hiring his first attorney that the attorney would
not be representing him. He could then have filed a pro
se petition. When the second attorney informed
Petitioner that he would not be filing a habeas petition,
Petitioner still had ten days to file a petition. While that
is not a lengthy period of time, pro se prisoners
routinely prepare their own habeas petitions. In addition,
the preparation of a petition such as the one at issue here
which essentially restates ...