351 F.Supp.2d 674 (2005) | Cited 7 times | E.D. Michigan | January 4, 2005


Petitioner David Herbert, who is currently incarcerated at theBoyer Road Correctional Facility in Carson City, Michigan, hasfiled a pro se petition for a writ of habeas corpus under28 U.S.C. § 2254. Before the Court is Respondent's Motion forSummary Judgment and Dismissal of Petition for Writ of HabeasCorpus. For the reasons set forth below, the Court will grant themotion and dismiss the petition for a writ of habeas corpus.


Following a jury trial in Genesee County Circuit Court,Petitioner was convicted of second-degree criminal sexualconduct. He then pleaded guilty to being a second habitualoffender. On September 26, 1991, Petitioner was sentenced tothree to twenty-two years of imprisonment. Petitioner filed anappeal of right in the Michigan Court of Appeals. On April 1,1997, the Michigan Court of Appeals issued an opinion affirminghis conviction. People v. Herbert, No. 149963 (Mich. Ct. App. Apr. 1, 1997). Petitioner then filed a delayedapplication for leave to appeal in the Michigan Supreme Court.The Michigan Supreme Court denied leave to appeal. People v.Herbert, No. 109538 (Mich. Feb. 27, 1998).

On June 23, 1998, Petitioner filed a motion for relief fromjudgment in the trial court. The trial court denied the motionfor relief from judgment. People v. Herbert, No. 91-044799(Genesee County Circuit Court Nov. 14, 2002). Petitioner thenfiled in the Michigan Court of Appeals an application for leaveto appeal, a motion for new trial, and a motion to remand. TheMichigan Court of Appeals dismissed the application for leave toappeal and accompanying motions "for failure to pursue the casein conformity with the rules." People v. Herbert, No. 250696(Mich.Ct.App. Oct. 24, 2003). Petitioner filed an applicationfor leave to appeal the Michigan Court of Appeals' decision inthe Michigan Supreme Court. The Michigan Supreme Court deniedleave to appeal. People v. Herbert, No. 125088 (Mich. Apr. 30,2004).

On May 19, 2004, Petitioner filed the pending petition for awrit of habeas corpus. Respondent has filed a Motion for SummaryJudgment and Dismissal of Petition for Writ of Habeas Corpus.Petitioner has filed a response to the Motion for SummaryJudgment.


Respondent's motion argues that the petition for a writ ofhabeas corpus is barred from review because it is untimely. TheAntiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214 ("AEDPA" or "the Act") applies to allhabeas petitions filed after the effective date of the Act, April24, 1996. Petitioner's application for habeas corpus relief wasfiled after April 24, 1996. Therefore, the provisions of theAEDPA, including the limitations period for filing an application for habeas corpus relief, apply toPetitioner's application. Lindh v. Murphy, 521 U.S. 320, 337(1997).

The AEDPA amended 28 U.S.C. § 2244 to include a one-yearlimitations period within which habeas petitions challengingstate court judgments must be filed. In most cases, a prisoner isrequired to file a federal habeas corpus petition within one yearof completing direct review of the claims brought in the habeascorpus petition. 28 U.S.C. § 2244(d)(1)(A). The time during whicha prisoner seeks collateral review of a conviction, however, doesnot count toward the limitations period. 28 U.S.C. § 2244(d)(2).The limitations period "is tolled from the filing of anapplication for state post-conviction or other collateral reliefuntil the conclusion of the time for seeking Supreme Court reviewof the state's final judgment on that application independent ofwhether the petitioner actually petitions the Supreme Court toreview the case." Abela v. Martin, 348 F.3d 164, 172 (6thCir. 2003) (en banc), cert. denied sub nom. Caruso v. Abela,124 S. Ct. 2388 (May 24, 2004).

In this case, Petitioner's conviction became final on May 28,1998, when the time for filing a petition for a writ ofcertiorari in the Supreme Court expired. The limitations periodcommenced on May 29, 1998, and continued running until June 23,1998, when Petitioner filed a motion for relief from judgment inthe trial court. This properly filed application for statecollateral review tolled the limitations period after onlytwenty-five (25) days had elapsed.

The trial court denied the motion for relief from judgment onNovember 14, 2002. People v. Herbert, No. 91-044799 (GeneseeCounty Circuit Court Nov. 14, 2002). Petitioner then filed anapplication for leave to appeal in the Michigan Court of Appeals.The Michigan Court of Appeals dismissed the application for leave to appeal under MichiganCourt Rule 7.201(B)(3), "for failure to pursue the case inconformity with the rules." People v. Herbert, No. 250696(Mich.Ct.App. Oct. 24, 2003).

An application for state collateral relief is "properly filed"such that it serves to toll the one-year limitations period "whenits delivery and acceptance are in compliance with the applicablelaws and rules governing filings." Artuz v. Bennett,531 U.S. 4, 8 (2000). These rules "usually prescribe, for example, theform of the document, the time limits upon its delivery, . . .,the court and office in which it must be lodged, and therequisite filing fee." Id. (footnote omitted). In this case,Petitioner's application was dismissed because he failed toconform with Michigan Court Rule 7.201(B)(3), which prescribesthe form of the application and the requisite filing fee.Accordingly, Petitioner's application was not properly filed anddid not serve to toll the limitations period.

Thus, when the trial court denied Petitioner's motion forrelief from judgment on November 14, 2002, he no longer had aproperly filed application for state collateral relief pending instate court, and the limitations period, of which 340 daysremained, resumed running. The limitations period continued torun until October 17, 2003, when the one-year limitations periodexpired. The filing of an application for leave to appeal in theMichigan Supreme Court did not subsequently serve to toll thelimitations period, because the limitations period already hadexpired. Thus, the pending petition was not timely filed.

Petitioner argues that he is entitled to equitable tolling ofthe limitations period because he is actually innocent. The SixthCircuit Court of Appeals has not yet decided whether an actualinnocence exception to the statute of limitations exists. SeeAllen v. Yukins, 366 F.3d 396, 404, 406 (6th Cir. 2004). Even assuming such an exception exists,Petitioner has failed to demonstrate that he is entitled toequitable tolling of the limitations period.

First, an essential component of the doctrine of equitabletolling is a petitioner's diligent pursuit of relief. Dunlap v.U.S., 250 F.3d 1001, 1008 (2001). See also Jurado v. Burt,337 F.3d 638, 643 (6th Cir. 2003); Morgan v. Money, 2000 WL178421 (6th Cir. Feb. 8, 2000) (holding that a petitionermust show that he exercised due diligence in pursuing § 2254relief to support equitable tolling). In this case, the MichiganCourt of Appeals dismissed Petitioner's application for leave toappeal "for failure to pursue the case in conformity with therules," on October 24, 2003. See People v. Herbert, No.250696 (Mich.Ct.App. Oct. 24, 2003). In dismissing the case,the Michigan Court of Appeals noted that Petitioner had beenprovided with "notice regarding the nature of the defects in thisfiling, and the defects were not corrected in a timely manner."Id. Instead of then proceeding to federal court after theMichigan Court of Appeals dismissed his application for leave toappeal, Petitioner decided to file an application for leave toappeal in the Michigan Supreme Court. Under similarcircumstances, the Sixth Circuit Court of Appeals has held that apetitioner's actions demonstrated a lack of diligence, therebyforeclosing the equitable tolling of the one-year limitationsperiod. Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003).

In Vroman, the petitioner filed a post-conviction petition inthe trial court on September 24, 1996. The trial court informedthe petitioner on November 15, 1996 that the petition wasuntimely. The petitioner chose to file applications for leave toappeal the trial court's dismissal of his post-convictionpetition to the Ohio Court of Appeals and Ohio Supreme Courtinstead of immediately pursuing federal habeas relief. Both Ohioappellate courts denied the petitioner's appeal. The petitioner argued that the one-year habeas limitations periodshould be tolled while he was appealing the trial court'sdismissal of his post-conviction petition to the Ohio appellatecourts. The Sixth Circuit Court of Appeals held that thepetitioner's decision to proceed solely on appeal to the Ohioappellate courts rather than filing a federal habeas petitionevidenced a lack of diligence. The Court therefore declined toequitably toll the limitations period during that time period.Id. at 605.

Applying the Sixth Circuit's reasoning in Vroman to thiscase, the Court finds that Petitioner failed to exercisediligence in filing a federal habeas petition. Petitioner failedto correct the filing defect in the Michigan Court of Appealsafter having received notice of the defect. Additionally, afterhis application was dismissed by the Michigan Court of Appeals,Petitioner waited over six months to file his habeas petition.

Finally, even if Petitioner were considered diligent in hisactions, the Court is not persuaded that Petitioner has satisfiedthe high actual innocence standard. To assert a credible claim ofactual innocence, a petitioner must present "new reliableevidence" demonstrating his innocence "that was not presented attrial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Thepetitioner must persuade the district court that "in light of thenew evidence, no juror, acting reasonably, would have voted tofind him guilty beyond a reasonable doubt." Id. at 327.

Petitioner claims that his actual innocence claim is supportedby: [M]ore than thirty-three (33+) plus physical, material and positive evidences, five (5) video evidences, clothing evidences, fingerprint evidences, footprint evidences, fourteen (14) on site witnesses, blood evidences, chemical evidences, document evidences, DNA laboratory semen, blood, chemical test result evidences, evidence by video tape of blood evidence tampering, . . .Plaintiff's Refutation Motion Against Attorney General, p. 1.Despite these sweeping claims of the existence of evidence that will purportedly exonerate him,Petitioner fails to provide any affidavits, copies of laboratoryresults, fingerprint or footprint-related documents, or any otherevidence to support his claims. Petitioner's unsupported,self-serving statements are insufficient to convince the Courtthat "no juror, acting reasonably, would have voted to find himguilty beyond a reasonable doubt." Schlup, 513 U.S. at 327.

Furthermore, these conclusory allegations are insufficient toentitle Petitioner to an evidentiary hearing in this Court. Inhis motion for evidentiary hearing, Petitioner simply states thathe has "thirty-three (33+) plus physical and material evidencesand . . . five (5) video evidences" to present at the evidentiaryhearing. Petitioner has asserted the same vague, conclusoryclaims regarding purportedly exculpatory evidence since filinghis motion for relief from judgment in state court. He has neveroffered any affidavits or other documentary evidence in supportof these vague claims. When requesting an evidentiary hearing, apetitioner must identify the basis for the request and "what canbe discovered through an evidentiary hearing." Stanford v.Parker, 266 F.3d 442, 460 (6th Cir. 2001). Petitioner'svague assertions do not meet this standard and the Court will notgrant an evidentiary hearing.

Accordingly, the Court concludes that Petitioner did not timelyfile the habeas petition and that Petitioner is not entitled toequitable tolling of the limitations period.


For the foregoing reasons, IT IS ORDERED that Respondent'sMotion for Summary Judgment [docket entry 25] is GRANTED, thepetition for the writ of habeas corpus [docket entry 1] isDENIED, and this matter is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Petitioner's Motion forEvidentiary Hearing [docket entry 11] is DENIED.

IT IS FURTHER ORDERED that Petitioner's Motion for New Trial[docket entry 10], Plaintiff's "Refutation Motion AgainstAttorney General" [docket entry 26], "Motion to Waive ProceduralDefault [and] Motion to Hold Federal Decision" [docket entry 7],"Motion to Remand" [docket entry 12] and Motions for ImmediateDecision [docket entry 28, 29, 30] are DENIED AS MOOT.

IT IS FURTHER ORDERED that if Petitioner desires to seek acertificate of appealability ("COA"), Petitioner may file aMOTION for a COA within TWENTY-ONE (21) DAYS of filing aNotice of Appeal and shall support this motion with anappropriate brief, both of which shall comply with the LocalRules of this Court. See Castro v. United States,310 F.3d 900, 903 (6th Cir. 2002) ("We do encourage petitioners as amatter of prudence to move for a COA at their earliestopportunity so that they can exercise their right to explaintheir argument for issuance of a COA." (emphasis added)).Respondent may file a response with an appropriate brief, both ofwhich shall comply with the Local Rules, within ELEVEN (11)DAYS of service of Petitioner's motion for a COA.

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