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Dickens v. Chapman

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

April 30, 2018

EVEREGE VERNOR DICKENS, Petitioner,
v.
WILLIS CHAPMAN, [1] Respondent.

          OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR THE APPOINTMENT OF COUNSEL (Doc. 16), DENYING THE MOTION TO OBJECT TO THE COURT ORDER DIRECTING RESPONDENT TO FILE A REPLY TO THE PETITION (Doc. 17), AND GRANTING A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

         Everege Vernor Dickens, (“Petitioner”), confined at the Thumb Correctional Facility in Lapeer, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for first-degree felony murder, M.C.L.A. 750.316, and assault with intent to rob while armed, M.C.L.A. 750.89. Respondent filed an answer to the petition. As part of the answer, respondent has renewed his 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). For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DENIED. The Court will deny petitioner's two pending motions. Petitioner will be GRANTED a certificate of appealability and leave to appeal in forma pauperis.

         I. Background

         Petitioner was convicted by a jury in the Wayne County Circuit Court.

         Direct review of petitioner's case 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. People v. Dickens, 876 N.W.2d 527 (2016).

         Petitioner 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 not clear 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 then 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's habeas application was signed and dated July 3, 2017 and filed with this Court on July 10, 2017.[2]

         Respondent filed a motion to dismiss on the ground that the petition was untimely in that it was filed more than one year after petitioner's conviction became final. Petitioner argued in his reply to the motion to dismiss that the state petition for writ of habeas corpus qualified as a state post-conviction motion to toll the limitations period under 28 U.S.C. § 2244(d)(2).

         This Court denied the motion to dismiss. The Court acknowledged that there was some question about whether a state petition for writ of habeas corpus would qualify as a properly filed application for post-conviction relief that could toll the limitations period pursuant to the provisions of 28 U.S.C. § 2244(d)(2). This Court noted that the Sixth Circuit had yet to address the issue nor were there any published district court cases on the issue, but a number of judges in this district had unpublished opinions that had reached opposite conclusions as to whether a state petition for writ of habeas corpus would be considered a properly filed post-conviction motion that would toll the limitations period pursuant to 28 U.S.C.§ 2244(d)(2). Dickens v. Stephenson, No. 2:17-CV-12243, 2018 WL 646390, at * 2 (E.D. Mich. Jan. 31, 2018)(collecting cases). This Court noted that petitioner had argued in his state petition for writ of habeas corpus that the Wayne County Circuit Court lacked subject matter jurisdiction over his case. Because Michigan allows criminal defendants to use a state petition for writ of habeas corpus to challenge a radical jurisdictional defect, this Court concluded that “there is at least some question about whether petitioner's state petition for writ of habeas corpus would toll the limitations period pursuant to 28 U.S.C. § 2244(d)(2).” Id. This Court further concluded that because of the complexities of the statute of limitations issue, judicial economy dictated “that the ends of justice would be better served by ordering an answer that addresses the merits of petitioner's claims.” Id.

         Respondent has now filed an answer to the petition.

         II. Discussion

         A. The motion for the appointment of counsel is DENIED.

         Petitioner has moved for the appointment of counsel.

         The Court will deny the motion for the appointment of counsel. There is no constitutional right to counsel in habeas proceedings. Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). The decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice or due process so require. Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986). “Habeas corpus is an extraordinary remedy for unusual cases” and the appointment of counsel is therefore required only if, given the difficulty of the case and petitioner's ability, the petitioner could not obtain justice without an attorney, he or she could not obtain a lawyer, and he or she would have a reasonable chance of winning with the assistance of counsel. See Thirkield v. Pitcher, 199 F.Supp.2d 637, 653 (E.D. Mich. 2002). Appointment of counsel in a habeas proceeding is mandatory only if the district court determines that an evidentiary hearing is required. Lemeshko v. Wrona, 325 F.Supp.2d 778, 787 (E.D. Mich. 2004). If no evidentiary hearing is necessary, the appointment of counsel in a habeas case remains discretionary. Id.

         Counsel may be appointed, in exceptional cases, for a prisoner appearing pro se in a habeas action. Lemeshko, 325 F.Supp.2d at 788. The exceptional circumstances that justify the appointment of counsel to represent a prisoner acting pro se in a habeas action occur where a petitioner raises a colorable claim, but lacks the means to adequately investigate, prepare, or present the claim. Id.

         In the present case, petitioner has filed a lengthy petition for writ of habeas corpus raising five claims for relief, a reply to the motion to dismiss, and now a motion to strike the answer. Petitioner has the means and ability to represent himself pro se. The motion for the appointment of counsel is denied.

         B. The motion to object to the answer is DENIED.

         Petitioner objects to respondent's answer. Petitioner argues that respondent was given an opportunity to file an answer but chose to merely file a motion to dismiss the petition on statute of limitations grounds. Petitioner argues that having lost on the motion to dismiss, respondent should not be given a chance to file a supplemental answer.

         Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, it is permissible for a respondent to file a motion to dismiss or for summary judgment on statute of limitations grounds, rather than an answer on the merits. See Jackson v. Straub, 309 F.Supp.2d 952, 959 (E.D. Mich. 2004). It was thus proper for respondent to file a motion to dismiss the petition on statute of limitations grounds, rather than initially file an answer addressing the merits. Having initially denied the motion to dismiss, this Court had the authority to order respondent to file a supplemental answer addressing the merits of the claims. Id. The motion to object is DENIED.

         C. The renewed motion to dismiss the ...


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