Harris 440974 v. Schiebner

• Court: District Court, W.D. Michigan
• Decided: April 26, 2022
• Docket: 1:22-cv-00192
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

LORENZO DEJUAN HARRIS,

Petitioner, Case No. 1:22-cv-192

v. Honorable Jane M. Beckering

JAMES SCHIEBNER,

Respondent. ____________________________/ OPINION This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (finding that district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436–37 (6th Cir. 1999). The Court may sua sponte dismiss a habeas action as time-barred under 28 U.S.C. § 2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006). After undertaking the review required by Rule 4, the Court concludes that the petition is barred by the one-year statute of limitations. Nonetheless, the Court will permit Petitioner, by way of an order to show cause, an opportunity to demonstrate why his petition should not be dismissed as untimely. Discussion I. Factual Allegations Petitioner Lorenzo Dejuan Harris is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County, Michigan. On March 22, 2016, following a six-day jury trial in the Wayne County Circuit Court, Petitioner was convicted of multiple offenses, including two counts of involuntary manslaughter in violation of Mich. Comp. Laws § 750.321. On April 6, 2016, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp. Laws § 769.12, to multiple concurrent prison terms, including sentences of 30 to 60 years for the involuntary manslaughter convictions. Petitioner’s sentences were to be served consecutively to the balance of a 6-month to 10-year sentence for

possession of methamphetamine, an offense for which Petitioner was on parole at the time he committed the manslaughter offenses. On March 3, 2022, Petitioner filed his habeas corpus petition. At least that is the date the petition arrived at the Court. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Under Brand v. Motley, 526 F.3d 921 (6th Cir. 2008), the date the prisoner signs the document is deemed to be the date of handing to officials. Id. at 925 (citing Goins v. Saunders, 206 F. App’x 497, 498 n.1 (6th Cir. 2006)). Petitioner did not date the signature on his petition nor did he indicate the date that he mailed the petition. Nonetheless, Petitioner dated the cover letter he sent with the petition as February 28, 2022. The Court has adopted that date as the petition filing

date, giving Petitioner the benefit of the earliest possible filing date.

2 II. Statute of Limitations Petitioner’s application appears to be barred by the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). Section 2244(d)(1) provides: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) 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). In most cases, § 2244(d)(1)(A) provides the operative date from which the one-year limitations period is measured. Under that provision, the one-year limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed the judgment of conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Supreme Court denied his application on April 3, 2018. People v. Harris, 909 N.W.2d 248 (Mich. 2018). Petitioner did not petition for certiorari to the United States Supreme Court. (Am. Pet., ECF 3 No. 10, PageID.23.) The one-year limitations period, however, did not begin to run until the ninety- day period in which Petitioner could have sought review in the United States Supreme Court had expired. See Lawrence v. Florida, 549 U.S. 327, 332-33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expired on July 2, 2018. Petitioner had one year from July 2, 2018, until July 2, 2019, to file his habeas application.

Petitioner filed his application on February 28, 2022. Obviously he filed more than one year after the period of limitations began to run. Thus, absent tolling, his application is time-barred. The running of the statute of limitations is tolled when “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see also Duncan v. Walker, 533 U.S. 167, 181–82 (2001) (limiting the tolling provision to only State, and not Federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining “properly filed”). Petitioner reports that he filed such a motion in the Wayne County Circuit Court. (Am. Pet., ECF No. 10, PageID.24.) Petitioner does not recall when he filed the motion; however, he recalls that it was denied on July 11, 2019. (Id.) The register of actions

for Petitioner’s criminal case shows that a motion for relief from judgment filed on February 12, 2019, was denied on July 11, 2019. People v. Harris, No. 15-005757-01-FC (Wayne Cnty. Cir. Ct.) Register of Actions, available at https://cmspublic.3rdcc.org/CaseDetail.aspx?CaseID= 2480574 (last visited Apr. 23, 2022). Therefore, on February 12, 2019, the running of the period of limitation was tolled. Between July 2, 2018, and February 12, 2019, 225 days ran on Petitioner’s period of limitation. The period remained tolled until the Michigan Supreme Court denied leave to appeal the trial court’s denial of Petitioner’s motion for relief from judgment on March 30, 2021. People v. Harris, 956 N.W.2d 214 (Mich. 2021). The period of limitation ran again from that date and 140 days later, on August 17, 2021, it expired. Six months later, Petitioner commenced this action. The one-year limitations period applicable to § 2254 is also subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner bears the burden of showing that he is entitled to equitable tolling. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Sixth

Circuit repeatedly has cautioned that equitable tolling relief should be granted “sparingly.” See, e.g., Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011), Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006); Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). A petitioner seeking equitable tolling 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.” Holland, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner has failed to raise equitable tolling or allege any facts or circumstances that would warrant its application in this case. The fact that Petitioner is untrained in the law, was

proceeding without a lawyer, or may have been unaware of the statute of limitations does not warrant tolling. See Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012) (“Keeling’s pro se status and lack of knowledge of the law are not sufficient to constitute an extraordinary circumstance and excuse his late filing.”); Allen, 366 F.3d at 403 (“[I]gnorance of the law alone is not sufficient to warrant equitable tolling.” (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991))). Accordingly, Petitioner is not entitled to equitable tolling of the statute of limitations. In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court held that a habeas petitioner who can show actual innocence under the rigorous standard of Schlup v. Delo, 513 U.S. 298 (1995), is excused from the procedural bar of the statute of limitations under the miscarriage- of-justice exception. In order to make a showing of actual innocence under Schlup, a Petitioner must present new evidence showing that “it is more likely than not that no reasonable juror would

have convicted [the petitioner.]” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327) (addressing actual innocence as an exception to procedural default). Because actual innocence provides an exception to the statute of limitations rather than a basis for equitable tolling, a petitioner who can make a showing of actual innocence need not demonstrate reasonable diligence in bringing his claim, though a court may consider the timing of the claim in determining the credibility of the evidence of actual innocence. Id. at 399–400. In the instant case, although Petitioner may baldly claim that he is actually innocent, he proffers no new evidence of his innocence, much less evidence that makes it more likely than not that no reasonable juror would have convicted him. Schlup, 513 U.S. at 327, 329. Because

Petitioner has wholly failed to provide evidence of his actual innocence, he would not be excused from the statute of limitations under 28 U.S.C. § 2244(d)(1). His petition therefore appears to be time-barred. The Supreme Court has directed the District Court to give fair notice and an adequate opportunity to be heard before dismissal of a petition on statute of limitations grounds. See Day, 547 U.S. at 210; see also Nassiri v. Mackie, 967 F.3d 544, 548 (6th Cir. 2020). The Court will allow Petitioner 28 days to show cause why the petition should not be dismissed as untimely. An order consistent with this opinion will be entered.

Dated: April 26, 2022 /s/ Jane M. Beckering Jane M. Beckering United States District Judge