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Columbert v. Stewart

United States District Court, E.D. Michigan, Southern Division

February 26, 2018

A. STEWART, Respondent.



         This 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.

         I. Background

         Petitioner 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).

         On 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).

         Petitioner 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.

         On 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 (Mich. 2017).

         On 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.

         II. Discussion

         Respondent 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).

         Petitioner's 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 earlier.

         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 (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.

         First, 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.

         “[S]erious 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 ...

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