Herman 861049 v. Scheibner

• Court: District Court, W.D. Michigan
• Decided: August 17, 2021
• Docket: 1:21-cv-00634
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

STANLEY HERMAN,

Petitioner, Case No. 1:21-cv-634

v. Honorable Ray Kent

JAMES SCHIEBNER,

Respondent. ____________________________/ OPINION This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner has consented to the conduct of all proceedings in this case, including entry of a final judgment and all post-judgment matters, by a United States Magistrate Judge. (ECF No. 6.) 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) (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, it appears 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 Stanley Herman is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County, Michigan. On November 29, 2012, Petitioner pleaded nolo contendere in the Macomb County Circuit Court to one count of first-degree criminal sexual conduct, in violation of Mich. Comp. Laws § 750.520b. On January 15, 2013, the court sentenced Petitioner to a prison term of 25 to 41 years.

On July 26, 2021, the Court received the habeas corpus petition. 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). Petitioner signed his application on July 21, 2021. (Pet., ECF No. 1, PageID.6.) For purposes of this preliminary review, I have given Petitioner the benefit of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 F. App’x 497, 498 n.1 (6th Cir. 2006)). 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

2 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 December 23, 2013. Petitioner does not allege that he filed a petition for certiorari to the United States Supreme Court. 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, 3 332-33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expired on March 24, 2014. Petitioner had one year from March 24, 2014—until March 24, 2015—to file his habeas application. Petitioner filed his application on July 21, 2021. 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 filed a motion for relief from judgment in the Macomb County Circuit Court on June 22, 2018. See https://circuitcourt.macombgov.org/ circuitcourt-courtview (select Access CourtView, accept terms, search Herman, Stanley, select Case Number 2012-001868-FC) (visited July 28, 2021). The court denied relief by order entered

July 12, 2018. Petitioner pursued appeals of that denial up to the Michigan Supreme Court. By order entered December 23, 2019, the supreme court vacated the trial court order and remanded the matter back to the trial court for a concise statement of the reasons for denial. See https://courts.michigan.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&Cas eNumber=345222&CourtType_CaseNumber=2 (visited July 28, 2021). On remand, the trial court conducted a hearing on Petitioner’s motion and entered a new opinion and order denying relief on March 6, 2020. Petitioner sought leave to appeal that decision in the Michigan Court of Appeals and then the Michigan Supreme Court. The supreme court denied leave by order entered March 30, 2021. (Mich. Order, ECF No. 1-1, PageID.10.) This petition followed. Petitioner’s application for collateral review in the state courts did not toll the running of the statute of limitations. Although 28 U.S.C. § 2244(d)(2) provides that the one-year statute of limitations is tolled while a duly filed petition for state collateral review is pending, the

tolling provision does not “revive” the limitations period (i.e., restart the clock); it can only serve to pause a clock that has not yet fully run. Vroman v. Brigano, 346 F.3d 598, (6th Cir. 2001). Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations. Id.. Even where the post-conviction motion raises a claim of ineffective assistance of appellate counsel, the filing of the motion for relief from judgment does not revive the statute of limitations. See McClendon v. Sherman, 329 F.3d 490, 493–94 (6th Cir. 2003). Because Petitioner’s one-year period expired in 2015, his collateral motions filed in 2018 did not serve to revive the limitations period. 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, it does not appear that Petitioner is 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: August 17, 2021 /s/ Ray Kent Ray Kent United States Magistrate Judge