United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTION TO DISMISS AND
COMPELLING ANSWER ADDRESSING PETITION'S MERITS
PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT
matter is before the Court on respondent's motion to
dismiss the petition on the ground that petitioner's
application for writ of habeas corpus is barred by the
statute of limitations found in 28 U.S.C. § 2244(d)(1).
Petitioner filed a reply to the motion to dismiss. Having
reviewed the pleadings and the issues raised by petitioner in
his habeas application and in response to the motion to
dismiss, the Court will deny the motion to dismiss and will
order that an answer addressing the merits of the petition be
filed in this matter within sixty days of the Court's
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 (2d Cir.1999); See also Cooey v.
Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007).
the Antiterrorism and Effective Death Penalty Act (AEDPA), a
one (1) year statute of limitations shall apply to an
application for writ of habeas corpus by a person in custody
pursuant to a judgment of a state court. The one year statute
of limitation shall run 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).
direct appeal of his conviction ended when the Michigan
Supreme Court denied petitioner leave to appeal on March 29,
2016, following the affirmance of his conviction by the
Michigan Court of Appeals on direct review. Petitioner's
conviction would become final, for the purposes of the
AEDPA's limitations period, on the date that the 90 day
time period for seeking certiorari with the U.S. Supreme
Court expired. See Jimenez v. Quarterman, 555 U.S.
113, 119 (2009). Petitioner's judgment therefore became
final on June 27, 2016, when he failed to file a petition for
writ of certiorari with the U.S. Supreme Court. Holloway
v. Jones, 166 F.Supp.2d 1185, 1188 (E.D. Mich. 2001).
Petitioner had until June 27, 2017 to file his habeas
petition in compliance with the one year limitations period,
unless the limitations period was somehow tolled.
habeas application was signed and dated July 3, 2017 and
filed with this Court on July 10, 2017. Under the prison
mailbox rule, this Court will assume that petitioner actually
filed his habeas petition on July 3, 2017, the date that it
was signed and dated. See Towns v. U.S., 190 F.3d
468, 469 (6th Cir. 1999). The current petition is untimely
unless the limitations period was somehow tolled.
argues that the limitations period should be tolled because
he filed a state petition for writ of habeas corpus first
with the Wayne County Circuit Court on January 21, 2016 and
subsequently attempted to file a state petition for writ of
habeas corpus with the Michigan Court of Appeals and the
Michigan Supreme Court. It is unclear from the pleadings when
or if the Wayne County Circuit Court ever ruled on
petitioner's state petition for writ of habeas corpus,
but the Michigan Court of Appeals dismissed the petition on
July 27, 2016, because petitioner failed to timely correct
filing defects. Dickens v. EC Brooks Correctional
Facility, No. 332823 (Mich.Ct.App. July 27, 2016). The
Michigan Supreme Court rejected petitioner's habeas
petition on September 16, 2016 because it was untimely filed.
See Letter from Inger Z. Meyer, Deputy Clerk of the Michigan
Supreme Court, attached to the petition for writ of habeas
corpus. Petitioner argued in his state petition that the
Wayne County Circuit Court lacked jurisdiction over his case.
U.S.C. § 2244(d)(2) expressly provides that the time
during which a properly filed application for state
post-conviction relief or other collateral review is pending
shall not be counted towards the period of limitations
contained in the statute. See McClendon v. Sherman,
329 F.3d 490, 493-94 (6th Cir. 2003).
is some question whether the petition for writ of habeas
corpus that petitioner filed first with the state trial court
and subsequently with the Michigan appellate courts would
qualify as a properly filed application for post-conviction
relief that would toll the limitations period pursuant to the
provisions of 28 U.S.C. § 2244(d)(2). The Sixth Circuit
has yet to address this issue nor are there any published
cases from this district or the Western District of Michigan
on this issue. Judges in this district in unpublished
opinions have reached opposing conclusions as to whether a
state petition for writ of habeas corpus is a properly filed
post-conviction motion that would toll the limitations period
pursuant to 28 U.S.C.§ 2244(d)(2). Compare Jenkins
v. Tribley, No. 11-14204; 2012 WL 995394, * 3-4 (E.D.
Mich. March 22, 2012)(state habeas petition can toll the
limitations period pursuant to § 2244(d)(2), at least
where the petitioner alleged a jurisdictional defect);
Powell v. McKee, No. 10-12866, 2011 WL 1344581, * 4
(E.D.Mich. April 8, 2011)(state habeas petition does not toll
the period of limitations under 28 U.S.C. § 2244(d)(2));
Northrop v. Wolfenbarger, No. 06-CV-13081, 2008 WL
564941, *2 (E.D. Mich. February 28, 2008) (same); Javens
v. Caruso, No. 07-CV-10175, 2007 WL 2516827, *2
(E.D.Mich. August 31, 2007)(same). This Court, in an
unpublished case, declined ...