Jaqua v. Winn

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Dkt. 7), GRANTING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSON TO APPEAL IN FORMA PAUPERIS

          Denise Page Hood Chief Judge

         Matthew Jaqua, (“Petitioner”), a Michigan Department of Corrections prisoner, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his Alger Circuit Court bench trial convictions of three counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a) and (2)(b) (sexual penetration of a child under 13 years old), and three counts of first-degree criminal sexual conduct. Mich. Comp. Laws § 750.520b(1)(b)(ii) (sexual penetration of a child between age 13 and 15 by a blood relative).

         The habeas petition raises four claims: (1) insufficient evidence was presented to sustain Petitioner's convictions, (2) the trial court erred in failing to exclude prior bad acts evidence related to other allegations of sexual misconduct from a different complainant, (3) erroneous information was included in the presentence information report, and (4) the court erred in ordering Petitioner to pay restitution.

         The case is before the Court on Respondent's motion to dismiss. Respondent asserts that the petition was filed after expiration of the one-year statute of limitations. Dkt. 7. Petitioner filed a response to the motion, arguing that he is entitled to equitable tolling because prison counselors were unavailable to place his petition in the institutional mail system in the days before the limitations period was set to expire. Even assuming the truth of Petitioner's allegations, the Court will grant Respondent's motion and dismiss the case because 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

         The facts surrounding Petitioner's convictions were summarized by the Michigan Court of Appeals:

Defendant's convictions resulted from his sexual abuse of his daughter, who was 21 years old at the time of the trial. At trial, the complainant testified that defendant first sexually abused her when she was in the first grade, when he rubbed her genitals.

When she was 10 or 11 years old, defendant started to take “naps” with the complainant, during which he touched and digitally penetrated the complainant. Later, beginning when the complainant was 12, defendant penetrated the complainant's vagina with his penis. Before she turned 13, he also forced her to engage in oral sex. These acts continued on a routine basis until after the complainant turned 16-years-old. Defendant admitted that he inappropriately touched the complainant; but, he claimed the touching was accidental and occurred when she was 15. He also admitted that they engaged in oral sex as well as vaginal penetration; but, defendant claimed that these acts did not occur until the complainant was 16-years-old. At trial, the prosecutor also presented testimony from defendant's two younger sisters, both of whom testified to acts of sexual touching and penetration that defendant perpetrated on them when they were children. Following a bench trial, defendant was convicted as noted above.

People v. Jaqua, 2017 WL 5503693, *1 (Mich. Ct. App. Nov. 16, 2017).

         On November 16, 2017, the Michigan Court of Appeals issued an unpublished memorandum opinion affirming Petitioner's convictions. Id. Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims he presents in his current habeas petition. On April 3, 2018, the Michigan Supreme Court denied the application by standard order. People v. Jaqua, 908 N.W.2d 917 (Mich. 2018) (Table).

         Petitioner's response to Respondent's motion indicates that after he prepared his federal habeas petition, on June 26, 2019, he sent a “kite” requesting permission to make copies so that he could file it. Dkt. 9, Affidavit. Petitioner states that he did not receive a “call out” to make copies until the evening of Tuesday July 2, 2019. Id. He made the copies at that time and signed the habeas petition, but it was too late in the day to give the completed petition to a prison counselor for mailing. By the next day, Wednesday July 3, 2019, both prison counselors in his unit were gone for the long holiday weekend. Petitioner states he was finally able to deliver his petition to a counselor for mailing on Monday July 8, 2019, after they returned to work. Indeed, the petition docketed with the Court bears a signature date of July 2, 2019, and it indicates “I declare under penalty of perjury that the foregoing is true and correct and that this Petitioner for Writ of Habeas Corpus was placed in the prison mailing system on 7/8/2019.” Dkt. 1, at 16.

         Meanwhile, as will be discussed below, the one-year statute of limitations expired on July 3, 2019.

         I. Standard of Review

         Though Respondent styles his motion as a motion to dismiss, it is properly construed as one of summary judgment because the motion and the record before the Court includes documents outside of the pleadings. See e.g., Anderson v. Shane Place, ...