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