United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS  AND DENYING A CERTIFICATE OF
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
October 3, 2018, Petitioner Kevin Sutherby filed a habeas
corpus petition under 28 U.S.C. § 2254. ECF 1.
Petitioner is challenging his Wayne County conviction for
first-degree criminal sexual conduct, in violation of Mich.
Comp. Laws § 750.520b(1)(a). Id. at 2. On May
30, 2019, Respondent filed a motion to dismiss, arguing that
the petition is untimely. ECF 4. For the following reasons,
the Court will grant Respondent's motion to dismiss.
conviction arose from the sexual assault of a twelve-year-old
victim, J. S., in July 2008. The assault occurred after the
victim passed out after drinking at Petitioner's bachelor
party. People v. Sutherby, No. 293826, 2010 WL
5383353, at *2 (Mich. Ct. App. Dec. 28, 2010). The victim
awoke the next morning next to Petitioner and was naked and
had blood between her legs. Id. The victim could not
remember what had happened the night before, and when she
confronted Petitioner that she might be pregnant, Petitioner
"implicitly admitted that he sexually penetrated the
victim by telling her that she could not be pregnant because
he had undergone a vasectomy and that he would die if the
victim told her family what happened." Id.
was convicted by a jury in Wayne County Circuit Court and, on
August 13, 2009, sentenced to twenty-five to fifty years'
imprisonment. Id. The Michigan Court of Appeals
affirmed Petitioner's convictions. Id.
Petitioner did not seek leave to appeal to the Michigan
Supreme Court. See ECF 5-24 (Affidavit of Larry
Royster, Clerk, Michigan Supreme Court).
October 12, 2012, Petitioner filed a motion for a new trial.
ECF 5-17. On November 30, 2012, the trial court denied the
motion. ECF 5-18. On May 23, 2016, Petitioner filed a motion
for relief from judgment in the trial court. ECF 5-19. On
September 7, 2016, the trial court denied the motion. ECF
5-20. The Michigan Court of Appeals denied leave to appeal.
See People v. Sutherby, No. 334983 (Mich. Ct. App.
Nov. 4, 2016). On October 3, 2017, the Michigan Supreme Court
also denied leave to appeal. See People v. Sutherby,
501 Mich. 878 (Mich. 2017).
October 3, 2018, Petitioner filed his habeas corpus petition,
through counsel. ECF 1. On March 30, 2019, Respondent filed a
motion to dismiss the petition on the ground that it was not
timely filed. ECF 4. On July 2, 2019, the Court issued a
stipulated order extending the time for Petitioner to file a
response to the motion to dismiss to July 18, 2019. ECF 6.
Petitioner did not file a response by that date. Instead, on
July 21, 2019, the Court issued a second stipulated order
extending the time to respond to August 8, 2019. ECF 7.
Petitioner again failed to file a response by the new
deadline. On August 14, 2019, the Court issued a third
stipulated order and established a new response date of
September 10, 2019. ECF 8. Petitioner failed to meet that
deadline, and the Court issued a fourth stipulated order
extending the time to file a response to September 24, 2019.
ECF 9. Petitioner again failed to file a response. On October
1, 2019, a week past the deadline to file, the Court received
a proposed fifth stipulated order that it did not enter.
Petitioner had more than sufficient time to respond to the
motion to dismiss. He failed to do so and failed to provide
any justification for his failure to comply with the
Court-mandated deadlines. On October 8, 2019, Petitioner
filed an untimely response to the motion to
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).
tolling is available to toll a statute of limitations when
"'a litigant's failure to meet a
legally-mandated deadline unavoidably arose from
circumstances beyond that litigant's control.'"
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir.
2010) (citing Graham-Humphreys v. Memphis Brooks Museum
of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). In
the habeas context, to be entitled to equitable tolling, a
petitioner must show "'(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way' and prevented timely
filing." Lawrence v. Florida, 549 U.S. 327, 336
(2007) (citing Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)). A claim of actual innocence may also justify
equitable tolling in certain circumstances. Souter v.
Jones, 395 F.3d 577, 588 (6th Cir. 2005). A petitioner
bears the burden of showing that he is entitled to equitable
tolling. Robertson, 624 F.3d at 784.
argues that the petition is time-barred by the one-year
statute of limitations period under 28 U.S.C. §
2244(d)(1). Petitioner appealed his conviction to the
Michigan Court of Appeals, but not to the Michigan Supreme
Court. See ECF 5-24. A defendant has fifty-six days
from the date of the Michigan Court of Appeals' decision
to file a delayed application for leave to appeal to the
Michigan Supreme Court. Michigan Court Rule 7.302(C)(3). The
Michigan Court of Appeals affirmed Petitioner's
conviction on December 28, 2010. See Sutherby, 2010
WL 5383353, at *2. Petitioner's conviction became final
when the time for seeking review to the Michigan Supreme
Court expired-February 22, 2011. See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012). The one-year
limitations period commenced the following day, on February
23, 2011, and expired one year later on February 23, 2012.
argues that the limitations period did not commence until
November 30, 2012, when the trial court denied his motion for
new trial, because it was not until that point in time that
he discovered the factual predicate for his ineffective
assistance of counsel claim. ECF 10, PgID 1172.
Petitioner's ineffective assistance of counsel claim
concerns defense counsel's failure to call three
witnesses-Petitioner's father and two brothers-to testify
at trial. ECF 1, PgID 16. Petitioner alleges that these
witnesses would have impeached the victim's credibility.
ECF 10, PgID 1171.
victim testified at trial that when she awakened naked beside
Petitioner, she noticed blood stains on the sheets. ECF 1,
PgID 9. She testified that she placed the sheets in the
washing machine and started the machine. Id.
Petitioner argues that counsel was ineffective in failing to
call his father and brothers to testify that the washing
machine was broken at that time. Id. at 16. The
claim that the washing machine was broken was known to
Petitioner at the time of trial. In fact, he claims
repeatedly that defense counsel was ineffective because
Petitioner told counsel about the broken washing machine
prior to trial yet counsel failed to call his proposed
witnesses. Id.; ECF 5-17, PgID 900; ECF 5-19, PgID
922. And the affidavit of one of his brothers was executed on
August 8, 2011, more than a ...