United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION
FOR DISMISSAL OF PETITION AND DENYING A CERTIFICATE OF
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Gloria Lynn
Columbert's petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner is a state inmate at the
Huron Valley Correctional Facility in Ypsilanti, Michigan.
She challenges her conviction for second-degree murder,
raising six claims for relief. Respondent, through the
Attorney General's Office, filed a motion to dismiss
arguing that the petition was not timely filed. The Court
finds that the petition is untimely and that equitable
tolling of the limitations period is unwarranted. The Court
grants the motion to dismiss.
was charged in Wayne County Circuit Court with first-degree
premeditated murder in connection with the death of Omar
Gill. She pleaded guilty to a reduced charge of second-degree
murder, pursuant to a sentence agreement of 17 to 40
years' imprisonment. On December 21, 2010, she was
sentenced in accordance with the plea agreement to 17 to 40
years' imprisonment. Petitioner filed an application for
leave to appeal in the Michigan Court of Appeals, but then
voluntarily dismissed the application. People v.
Columbert, No. 307746 (Mich. Ct. App. Feb. 29, 2012).
December 17, 2013, Petitioner filed a motion for relief from
judgment in the trial court, arguing that two of her offense
variables were incorrectly scored and that she received
ineffective assistance of trial and appellate counsel. The
trial court denied the motion. People v. Columbert,
No. 10-0005835 (Wayne County Cir. Ct. Feb. 13, 2014).
Petitioner sought leave to appeal in the Michigan Court of
Appeals and Michigan Supreme Court. Both state appellate
courts denied leave to appeal. People v. Columbert,
No. 321577 (Mich. Ct. App. July 2, 2014); People v.
Columbert, 497 Mich. 1011 (Mich. Apr. 28, 2015).
filed a habeas corpus petition on May 19, 2015. She raised
the same claims raised in her state court motion for relief
from judgment. She then sought to stay the proceeding to
allow her to return to state court to file a second motion
for relief from judgment. The Court granted the motion,
imposed conditions under which Petitioner was required to
proceed, and administratively closed the case. See
10/9/2015 Order, ECF No. 9.
September 21, 2015, Petitioner filed a second motion for
relief from judgment in the trial court. The trial court
denied relief from judgment because Petitioner failed to
satisfy either of the two circumstances enumerated in Mich.
Ct. R. 6.502(G), under which a successive motion may be
filed. See 12/22/2015 Opinion and Order, ECF No.
17-9. The Michigan Court of Appeals denied Petitioner's
delayed application for leave to appeal because Petitioner
“failed to establish that the trial court erred in
denying the motion for relief from judgment.”
People v. Columbert, No. 331152 (Mich. Ct. App. May
17, 2016). On January 5, 2017, the Michigan Supreme Court
denied leave to appeal because Petitioner's “motion
for relief from judgment is prohibited by M.C.R.
6.502(G).” People v. Columbert, 500 Mich. 924
February 13, 2017, Petitioner filed an amended habeas corpus
petition. The Court construed the filing of an amended
petition as a request to lift the stay, granted the request,
reopened the case, and directed Respondent to file a
responsive pleading. See 4/6/2017 Order, ECF No. 14.
Respondent filed a motion to dismiss on the ground that the
petition was not timely filed; Petitioner replied.
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 . . . 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 at zero. Vroman v.
Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
appeal to the Michigan Court of Appeals was dismissed by
stipulation on February 29, 2012. Petitioner did not seek
further review in the Michigan Supreme Court. Where, as here,
petitioner does not seek review which she is entitled to seek
under state law, the conviction becomes “final”
upon the conclusion of the time for seeking that review.
See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Petitioner's conviction became final, and the limitations
period commenced running, 56 days after the dismissal of her
appeal, see Mich. Ct. R. 7.302(C)(2). Thus, the limitations
period commenced on April 25, 2012. It continued to run
uninterrupted until it expired on April 25, 2013.
Petitioner's first motion for relief from judgment, filed
on December 17, 2013, did not toll the limitations period
because the limitations period expired almost eight months
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 (s)he
has been pursuing h[er] rights diligently, and (2) that some
extraordinary circumstance stood in h[er] way and prevented
timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (internal quotation marks omitted).
Petitioner argues that she is entitled to equitable tolling
of the limitations period on two grounds.
Petitioner argues that two appellate attorneys abandoned her
on direct appeal. Her first appointed appellate attorney,
Ronald Ambrose, was appointed on March 3, 2011. After meeting
with Petitioner and reviewing the case documents, Ambrose
filed a motion to vacate the order of appointment of
appellate counsel on the ground that he discerned no arguable
issues on appeal. See Motion to Vacate the Order of
Appointment of Appellate Counsel, ECF No. 17-5, Pg. ID
640-641. The trial court granted the motion and appointed
substitute counsel, Lee Somerville. Id. at Pg. ID
644. Letters from Somerville show that Petitioner wished to
challenge her sentence on appeal. Somerville explained in
multiple letters that because Petitioner's sentence was
part of a plea agreement, she could not challenge
only her sentence on appeal. See, e.g.,
1/16/12 Letter, ECF No. 17-5, Pg. ID 675. Somerville filed a
timely application for leave to appeal. On February 24, 2012,
the parties filed a Stipulation Dismissing Appeal, which
included a signed affidavit by Petitioner (dated February 17,
2012) stating that, after consulting with Somerville, she
decided that she wished to dismiss her appeal. ECF No. 17-10,
Pg. ID 818-19.
instances of attorney misconduct” may constitute an
extraordinary circumstance to warrant equitable tolling.
Holland v. Florida, 560 U.S. 631, 645 (2010);
Patterson v. Lafler, 455 Fed. App'x 606, 609-10
(6th Cir. 2012) (citing Holland). To constitute an
“extraordinary circumstance, ” counsel's
conduct, or lack thereof, must be sufficiently egregious to
warrant equitable relief. Maples v. Thomas, 565 U.S.
266, 287- 90 (2012) (discussing Holland and ruling
that attorney abandonment may constitute cause to excuse ...