United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION
FOR DISMISSAL AND DENYING A CERTIFICATE OF
D. BORMAN UNITED STATES DISTRICT JUDGE.
matter is pending before the Court on petitioner Freddie
Smith's habeas corpus petition under 28 U.S.C. §
2254. Smith is challenging his Wayne County convictions for
three counts of first-degree criminal sexual conduct, Mich.
Comp. Laws § 750.520b(1)(a), and one count of
second-degree criminal sexual conduct, Mich. Comp. Laws
§ 750.520c(1)(a). Respondent, through the Attorney
General's office, filed a motion to dismiss, arguing that
the petition is untimely. For the reasons which follow, the
Court grants the motion.
convictions arise from the sexual assault of his niece, A.R.
A.R. was eight years old at the time of trial and testified
that, when she visited her great-grandmother's house,
Petitioner often took her to the basement where he kissed her
and “tried to put his privacy inside [her]
privacy.” 8/7/2002 Tr. at 22 (ECF No. 10-4, Pg. ID
361). This happened between five and ten times. Petitioner
told her not to tell anyone or he would kill her. Ultimately,
she told her grandmother, Denise Roberson, what Petitioner
had done. Roberson contacted police who then began their
was convicted by a jury in Wayne County Circuit Court and, on
August 21, 2002, sentenced as a fourth habitual offender to
fifty to eighty years imprisonment for each of the
first-degree criminal sexual conduct convictions, and ten to
fifteen years' imprisonment for the second-degree
criminal sexual conduct conviction, all to be served
Michigan Court of Appeals affirmed Petitioner's
convictions, People v. Smith, No. 245616, 2004 WL
1078978 (Mich. Ct. App. May 13, 2004); and the Michigan
Supreme Court denied leave to appeal. People v.
Smith, 471 Mich. 921 (Mich. Nov. 22, 2004).
9, 2013, Petitioner attempted to file a complaint for
mandamus in the Michigan Court of Appeals. The Michigan Court
of Appeals rejected the complaint for filing because
Petitioner failed to comply with Mich. Comp. Laws §
600.2963. See Smith v. Wayne Circuit Court, No.
317115 (Mich. Ct. App. July 18, 2013) (ECF No. 10-8).
December 29, 2016, Petitioner filed a motion for relief from
judgment in the trial court. The trial court denied the
motion. See 5/9/2017 Order, People v.
Smith, No. 02-007068-01 (ECF No. 10-11). The Michigan
Court of Appeals denied Petitioner's application for
leave to appeal, People v. Smith, No. 339588 (Mich.
Ct. App. Oct. 17, 2017) (ECF No. 10-12), and, on July 3,
2018, the Michigan Supreme Court also denied leave to appeal.
People v. Smith, 502 Mich. 902 (Mich. 2018).
filed the pending habeas corpus petition on September 10,
2018. He also filed a motion for equitable tolling. The Court
declined to adjudicate the timeliness of the petition until
Respondent filed an answer and the state court record.
See 3/15/2019 Order (ECF No. 8). Respondent has
filed a motion to dismiss and the relevant state court record
and Petitioner's arguments for equitable tolling are
argues that the petition is barred by the one-year statute of
limitations. Under 28 U.S.C. § 2244(d), 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).
direct review, the Michigan Supreme Court denied
Petitioner's application for leave to appeal on November
22, 2004. Because Petitioner did not petition for a writ of
certiorari with the United States Supreme Court, his
conviction became final on February 21, 2005, 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
limitations period commenced the following day, February 22,
2006, and continued to run, uninterrupted, until it expired
one year later, on February 21, 2007. See Id. at
284-85 (one-year limitations period commences the day after
the expiration of the 90-day period for filing a petition for
a writ of certiorari). Petitioner filed his petition on
September 10, 2018, over eleven years after the limitations
period expired. Absent equitable tolling, the petition is
seeks to equitably toll the limitations period based upon a
claim of actual innocence. The Supreme Court has held that a
showing of actual innocence may excuse the filing of an
untimely petition. McQuiggin v. Perkins, 569 U.S.
383, 392-93 (2013). To evaluate an actual innocence claim in
the context of equitable tolling, the court applies
“the same actual innocence standard developed in
Schlup v. Delo, 513 U.S. 298 (1995), for reviewing a
federal habeas applicant's procedurally defaulted
claim.” McCray v. Vasbinder, 499 F.3d 568, 571
(6th Cir. 2007) (citing Souter v. Jones, 395 F.3d
577, 596 (6th Cir. 2005)). A valid claim of actual innocence
requires a petitioner “to support his allegations of
constitutional error with new reliable evidence - whether it
be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence - that was not
presented at trial.” Schlup, 513 U.S. at 324.
“[T]he Schlup standard is demanding and
permits review only in the ‘extraordinary'
case.” House v. Bell, 547 U.S. 518, 538 (2006)
(citation omitted). A court presented with new evidence must
consider it in light of “all the evidence, old and new,
incriminating and exculpatory, without regard to whether it
would necessarily be admitted under rules of admissibility
that would ...