United States District Court, E.D. Michigan, Southern Division
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
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.
was convicted by a jury in the Wayne County Circuit Court.
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).
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
habeas application was signed and dated July 3, 2017 and
filed with this Court on July 10, 2017.
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).
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.”
has now filed an answer to the petition.
The motion for the appointment of counsel is DENIED.
has moved for the appointment of counsel.
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.
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.
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.
The motion to object to the answer is DENIED.
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.
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
The renewed motion to dismiss the ...