Jones v. Skipper

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS, GRANTING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

         Jonathon Jones, (“Petitioner”), a Michigan Department of Corrections prisoner, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges his 2012 Saginaw Circuit Court jury trial convictions of first-degree murder, Mich. Comp. Laws § 750.316, conspiracy to commit first-degree murder, Mich. Comp. Laws § 750.157(a), assault with intent to murder, Mich. Comp. Laws § 750.83, discharging a firearm at a dwelling, Mich. Comp. Laws § 750.234(b), carrying a dangerous weapon with unlawful intent, Mich. Comp. Laws § 750.226, and five counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227(b). The habeas petition raises four claims: (1) insufficient evidence was presented to sustain Petitioner's murder conviction, (2) Petitioner was denied the effective assistance of counsel, (3) Petitioner was shackled during trial, and (4) the prosecutor improperly elicited hearsay testimony.

         The case is before the court on Respondent's motion to dismiss. (ECF No. 12.) Respondent asserts that the petition was filed after expiration of the one-year statute of limitations period. Petitioner filed a response to the motion, arguing that he is entitled to equitable tolling because his legal papers were mistakenly confiscated by the Michigan Department of Corrections shortly before the period of limitations ran. (ECF No. 14.)

         Even assuming the truth of Petitioner's allegations regarding his legal papers, the court will grant Respondent's motion and dismiss the case. Petitioner failed to comply with the one-year limitations period under 28 U.S.C. §2244(d) and he has failed to demonstrate entitlement to equitable tolling. The court will, however, grant Petitioner a certificate of appealability and permission to appeal in forma pauperis.

         I. BACKGROUND

         Petitioner was convicted on December 7, 2011. He filed an appeal of right with the Michigan Court of Appeals, raising what now form his first two habeas claims. On July 15, 2014, the Michigan Court of Appeals affirmed. People v. Jones, No. 308929, 2014 WL 3527796 (Mich. Ct. App. Jul. 15, 2014). The Michigan Court of Appeals reissued its opinion on January 8, 2015. People v. Jones, No. 308929, 2015 WL 122703 (Mich. Ct. App. Jan. 8, 2015). Petitioner filed an application for leave to appeal to the Michigan Supreme Court, but it was denied by form order on March 3, 2015. People v. Jones, 497 Mich. 972, 859 N.W.2d 696 (2015). The time for Petitioner to file a petition for writ of certiorari in the United States Supreme Court expired 90 days later, on June 1, 2015.

         Over ten months later, on March 24, 2016, Petitioner filed a pro se motion for relief from judgment in the trial court. (ECF No. 13-1, PageID.71.) The trial court denied the motion on January 13, 2017. (ECF No. 13-14.). Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. On November 15, 2017, the Michigan Court of Appeals denied the application in a standard order. (ECF No. 13-17, PageID.841.) On January 11, 2018, Petitioner filed an application for leave to appeal in the Michigan Supreme Court. (ECF No. 13-19, PageID.899.)

         On May 15, 2018, while his application was pending in the Michigan Supreme Court, Petitioner's cellmate was transferred to administrative segregation, and Petitioner's legal papers were mistakenly removed from the cell with his cellmate's belongings. Petitioner filed grievances starting on June 11, 2018, but records seem to indicate that his legal papers were never returned.

         On July 27, 2018, Petitioner's application for leave to appeal was denied by the Michigan Supreme Court by form order. People v. Jones, 502 Mich. 938, 915 N.W.2d 460 (2018).

         On about October 20, 2018, Petitioner wrote a letter to the Clerk of the Court, complaining about the loss of his legal papers and requesting assistance in filing his habeas petition. The Clerk sent Petitioner a form petition. Then, on October 25, 2018, Petitioner signed and dated his habeas petition, and it was subsequently filed with the court on October 30, 2018. (ECF No. 1.) Petitioner also filed on that date a motion to stay his petition, asserting that he had additional claims to exhaust in the state courts and asserting that his legal records had been mistakenly lost by the Department of Corrections. (ECF No. 3.)

         The court granted the motion to stay. (ECF No. 9.) After failing to obtain relief in the state courts, Petitioner's case was reopened on April 4, 2019. Respondent subsequently filed its motion to dismiss, and Petitioner's response to that motion is contained in his “amended petition, ” filed on August 19, 2019. (ECF Nos. 12, 14.)

         II. STANDARD

         Though Respondent styles his motion as a motion to dismiss, it is properly construed as one of summary judgment. The motion and the record before the court includes documents outside of the pleadings. Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010) (quoting Fed.R.Civ.P. 12(d)) (“The federal rules require that if, in a 12(b)(6) motion to dismiss, ‘matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.'”)

         Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(a). In considering a motion for summary judgment, the court will construe all facts in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 578 (1986). There are no genuine issues of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Id. at 599. If the movant carries its burden of showing an absence of evidence to support a claim, then the non-movant must demonstrate by affidavits, depositions, answers to interrogatories and admissions that a genuine issue ...