United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION
FOR DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS, GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS, AND DENYING CERTIFICATE OF
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
Davarrio Webb, a prisoner in the custody of the Michigan
Department of Corrections, has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. ECF No. 1. He
challenges his convictions for first-degree home invasion,
Mich. Comp. Laws § 750.110a(2), two counts of possession
of a firearm during the commission of a felony
(felony-firearm), Mich. Comp. Laws § 750.227b, safe
breaking, Mich. Comp. Laws § 750.531, and felon in
possession of a firearm, Mich. Comp. Laws § 750.224f.
Respondent has filed a motion to dismiss arguing that the
petition was not timely filed. ECF No. 9. For the reasons set
forth below, Respondent's motion to dismiss will be
granted and the petition will be dismissed.
was convicted by a jury in Saginaw County Circuit Court of
the crimes listed above. On June 20, 2011, he was sentenced
to concurrent terms of 10 to 20 years for first-degree home
invasion, 10 to 20 years for safe breaking, 10 to 20 years
for felon in possession, all of the foregoing to be served
consecutively to two years for each of the felony-firearm
convictions (the felony-firearm convictions to be served
concurrently with one another).
filed an appeal of right in the Michigan Court of Appeals.
The Michigan Court of Appeals reversed Petitioner's
convictions on the ground that the trial court abused its
discretion in denying Petitioner's request for a DNA
expert witness. People v. Webb, No. 305017, 2012 WL
3536794, *1 (Mich. Ct. App. Aug. 16, 2012). The State filed
an application for leave to appeal. In lieu of granting leave
to appeal, the Michigan Supreme Court reversed in part the
judgment of the Court of Appeals to the extent that the Court
of Appeals vacated Petitioner's convictions. People
v. Webb, 493 Mich. 904 (Mich. Dec. 12, 2012). The
Michigan Supreme Court did not disturb the Court of Appeals
determination that the lack of funds for an expert witness
was error, but found it was premature to vacate
Petitioner's convictions because the error may have been
harmless. Id. The Michigan Supreme Court directed
the circuit court to provide funds sufficient to allow
Petitioner to obtain independent DNA testing. Id.
The Michigan Supreme Court further allowed that
“[w]ithin 56 days of receiving the test results, the
defendant may seek further relief, if appropriate in the
trial court.” Id. The Michigan Supreme Court
did not retain jurisdiction. Id. Petitioner did not
seek further relief regarding the DNA testing in the trial
12, 2014, Petitioner filed a motion for relief from judgment
in Saginaw County Circuit Court, raising claims unrelated to
independent DNA testing. The court denied the motion on July
11, 2014. See Saginaw County Cir. Ct. Docket Sheet,
ECF No. 9-4, Pg. ID 152. Petitioner filed a delayed
application for leave to appeal in the Michigan Court of
Appeals, which denied leave to appeal. People v.
Webb, No. 323635 (Mich. Ct. App. Dec. 11, 2014). The
Michigan Supreme Court also denied leave to appeal.
People v. Webb, 498 Mich. 919 (Mich. 2015).
filed the pending habeas petition on December 20, 2016. In
the petition, Petitioner raises claims of ineffective
assistance of counsel related to plea negotiations.
Respondent filed a motion to dismiss on the ground that the
petition was not timely filed and Petitioner has filed a
reply to the motion.
argues that the petition is barred by the one-year statute of
limitations. Title 28 U.S.C. § 2254(d) 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 . . . 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 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 to zero.
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir.
appealed his conviction first to the Michigan Court of
Appeals, and then to the Michigan Supreme Court. The Michigan
Court of Appeals vacated Petitioner's convictions.
Webb, 2012 WL 3536794 at *1-2. On December 12, 2012,
the Michigan Supreme Court reversed the Court of Appeals'
decision vacating the convictions. Webb, 493 Mich.
904. Petitioner had ninety days from December 12, 2012, 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 March 13, 2013, 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 March 14, 2013, and continued
to run until it expired one year later on March 14, 2014.
motion for relief from judgment did not toll the limitations
period. The motion was filed on May 12, 2014, approximately
two months 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
argues that he is entitled to equitable tolling of the
limitations period because he has been diligent in pursuing
his rights. The AEDPA's one-year limitations period is
not a jurisdictional bar and is therefore subject to
equitable tolling where a habeas petitioner “shows (1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (internal quotation marks omitted).
Petitioner acknowledges the two requirements articulated in
Holland, but fails to allege or identify an
extraordinary circumstance which prevented his timely filing.
He, therefore, is not entitled to equitable tolling on this
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253. Rule 11 of the Rules
Governing Section 2254 Proceedings requires that a district
court must “issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” If the court issues a certificate, the
court must state the specific issue or issues ...