United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS (Dkt. 7), GRANTING A CERTIFICATE OF APPEALABILITY,
AND GRANTING PERMISSON TO APPEAL IN FORMA PAUPERIS
Page Hood Chief Judge
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).
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.
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
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).
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).
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.
as will be discussed below, the one-year statute of
limitations expired on July 3, 2019.
Standard of Review
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