Wons 317268 v. Braman

• Court: District Court, W.D. Michigan
• Decided: October 21, 2020
• Docket: 1:20-cv-00976
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

LEROY WONS,

Petitioner, Case No. 1:20-cv-976

v. Honorable Paul L. Maloney

MINDY BRAMAN,

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) (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 an opportunity to demonstrate, by way of an order to show cause, why his petition should not be dismissed as untimely. Discussion I. Factual Allegations Petitioner LeRoy Wons is incarcerated with the Michigan Department of Corrections at the Richard A. Handlon Correctional Facility in Ionia, Michigan. Following a jury trial in the Van Buren County Circuit Court, Petitioner of second-degree murder, in violation of Mich. Comp. Laws § 750.317, and use of a firearm during commission of a felony (felony- firearm), in violation of Mich. Comp. Laws § 750.227b. On July 28, 2000, the court sentenced Petitioner to 20 to 50 years’ imprisonment for the murder conviction to be served consecutively to a 2-year sentence for felony firearm. Under Sixth Circuit precedent, a habeas corpus application is deemed filed when

the Petitioner hands it to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in the prison mailing system on October 6, 2020. (Pet., ECF No. 1, PageID.15.) 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; 2 (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. He did not, however, file a timely application for leave to appeal in the Michigan Supreme Court; therefore, Petitioner’s judgment became final 56 days after the Michigan Court of Appeals affirmed the trial court. The Michigan Court of Appeals issued its decision on July 22, 2000. Petitioner’s judgment became final on September 16, 2000. Petitioner had one year from September 16, 2000, until September 16, 2001, to file his habeas application. Petitioner filed his application on October 6, 2020. 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 on June 4, 2019. (Pet., ECF No. 1, PageID.4.) The trial court denied relief on July 25, 2019. (Id.) Petitioner did not seek leave to appeal that decision in either the Michigan Court of Appeals or the Michigan Supreme Court. (Id., PageID.5.) 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. Payton, 256 F.3d at 408. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations. Id.; McClendon v. Sherman, 329 F.3d 490, 493 (6th Cir. 2003). 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 Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (citing McClendon, 329 F.3d at 490). Because Petitioner’s one-year period expired on September 16, 2001, his collateral motion filed on or after June 4, 2019, could 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); Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009); Keenan v. Bagley, 400 F.3d 417, 420 (6th Cir. 2005). A petitioner bears the burden of showing that he is entitled to equitable tolling. See Keenan, 400 F.3d at 420; Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Sixth Circuit repeatedly has cautioned that equitable tolling should be applied “sparingly” by this Court. See, e.g., Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011); Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010); Sherwood v. Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009). A petitioner seeking equitable tolling of the habeas statute of limitations has the burden of establishing two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Holland, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Lawrence v. Florida, 549 U.S. 327, 335 (2007); Hall, 662 F.3d at 750; Akrawi, 572 F.3d at 260. Petitioner has not specifically raised equitable tolling, and he has not alleged any facts or circumstances that would warrant the application of equitable tolling. Petitioner explains

the delay in filing his motion for relief from judgment in the state court and his habeas petition in this Court as follows: I have ALWAYS been told by legal writers and law librarians alike that I could not have ANY lower sentence because “you admitted you killed the guy while his back was to you.” I did not kill the decedent (in my REALITY). On September 29, 1999, I was ACTUALLY killing the SLIMEBALL (Brett Arther Noug) who stabbed my daddy to death IN FRONT OF ME. I have P.T.S.D. For 13 years I have been told to lay back and do my time, it has only been for the last 2 years I have got serious enough to say “never mind what they say—this is my life they’re playing with.” An element of second-degree murder did not exist in my trial. [It] was without provocation or justification. (Pet., ECF No. 1, PageID.14.) Thus, it appears Petitioner delayed filing, despite being aware of his claims, because others suggested that his trial result was favorable. There is no claim that any extraordinary circumstance prevented Petitioner from filing and his conduct cannot be described as diligent. In addition, the fact that Petitioner is untrained in the law, was proceeding without a lawyer, or may have been unaware of the statute of limitations for a certain period does not warrant tolling. See Allen, 366 F.3d at 403-04; see also Craig v. White, 227 F. App’x 480, 482 (6th Cir. 2007); Harvey v. Jones, 179 F. App’x 294, 299-300 (6th Cir. 2006); Martin v. Hurley, 150 F. App’x 513, 516 (6th Cir. 2005); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (“[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse [late] filing.”). Accordingly, based on the petition as it stands, Petitioner is not entitled to equitable tolling of the statute of limitations. In McQuiggin v. Perkins, 569 U.S. 383, 391-393 (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 329 (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, Petitioner does not claim that he is actually innocent, and he proffers no new evidence of his innocence, much less evidence that makes it more likely than not that no reasonable jury would have convicted him. Schlup, 513 U.S. at 329. Indeed, Petitioner

acknowledges that he killed the decedent, even though he also claims that, at the time, he thought he was killing his father’s killer. Because Petitioner has wholly failed to provide evidence of his actual innocence, he is not excused from the statute of limitations under 28 U.S.C. § 2244(d)(1). His habeas 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: October 21, 2020 /s/ Paul L. Maloney Paul L. Maloney United States District Judge