Opinion
No. 01-CV-74002-DT
December 23, 2002
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Charmel Allen, a state prisoner currently confined at the Scott Correctional Facility in Plymouth, Michigan, has filed through counsel this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that she is incarcerated in violation of her constitutional rights. For the reasons set forth below, the court dismisses the petition for writ of habeas corpus for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244 (d).
I. Procedural History
On March 8, 1991, following a jury trial in the Genesee County Circuit Court, Petitioner was convicted of first-degree felony murder and assault with intent to murder, for the shooting death of Lawrence Wallace and the wounding of Bryan Carson in a dispute over drug money. She was sentenced on April 25, 1992, to mandatory life imprisonment without possibility of parole for felony murder and thirty to forty-five years imprisonment as a third felony habitual offender on the assault with intent to murder conviction.
The Michigan Court of Appeals vacated Petitioner's felony murder conviction and affirmed her assault with intent to murder conviction and habitual offender sentence in an unpublished opinion. People v. Allen, Mich. Ct. App. No. 146476 (May 24, 1991). The Michigan Supreme Court denied the prosecutor's application for leave to appeal and Petitioner's cross-appeal of the Michigan Court of Appeals May 24, 1991, decision. People v. Allen, Mich. Sup.Ct. No. 99869 (Oct. 14, 1994).
On remand, Petitioner pleaded nolo contendere to manslaughter and was sentenced on September 11, 1996, to ten to fifteen years imprisonment. Petitioner then appealed her manslaughter conviction as of right, asserting that the trial court erred in scoring the state sentencing guidelines.
The Michigan Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished memorandum opinion. People v. Allen, Mich. Ct. App. No. 198484 (Sept. 23, 1997). Petitioner did not seek leave to appeal this decision to the Michigan Supreme Court.
On September 28, 1998, Petitioner filed a motion for relief from judgment in the trial court seeking re-sentencing on her habitual offender assault with intent to murder conviction. On November 12, 1998, the trial court denied Petitioner's motion for relief from judgment. On October 18, 1999, the trial court denied Petitioner's motion to amend and supplement her motion for relief from judgment.
On March 3, 2000, the Michigan Court of Appeals denied Petitioner's delayed application for leave to appeal based on Petitioner's procedural default under M.C.R. 6.508(D). People v. Allen, Mich. Ct. App. No. 223268 (March 3, 2000). The Michigan Supreme Court denied Petitioner's application for leave to appeal based on her procedural default under M.C.R. 6.508(D). People v. Allen, Mich. Sup.Ct. No. 116531 (Aug. 22. 2000). On October 30, 2000, the Michigan Supreme Court denied Petitioner's motion for reconsideration of her state procedural default. People v. Allen, Mich. Sup.Ct. No. 116531 (Oct. 30, 2000).
The present petition for a writ of habeas corpus was filed by counsel on October 22, 2001, and sets forth the following claims for relief:
I. The due process requirement that a defendant be sentenced on accurate information requires Petitioner Allen's sentence for assault with intent to murder be vacated given that her felony murder conviction was reversed.
II. Petitioner Allen was denied due process and equal protection under the federal and state constitutions when an erroneous jury instruction allowed for a conviction as an accomplice on a lesser standard of proof than required for the principal actor.
III. Petitioner Allen has established an entitlement to relief from judgment of her conviction and sentence by demonstrating good cause for the failure to raise her present claims on direct appeal or in a prior motion and actual prejudice from the alleged irregularities in this criminal process and, therefore, is not subject to procedural default.
II. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA governs the filing date for this action because Petitioner filed her petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Among other things, the AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Matthews v. Abramajtys, 39 F. Supp.2d 871, 872 (E.D. Mich. 1999). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244(d)(1)(A). The revised statute 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.
(2) The time during which a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
Petitioner's convictions became final after the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final after the AEDPA's effective date have only the one year statutory limitations period within which to file their federal habeas petitions, unless the limitations period it tolled. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). The AEDPA's limitations period is only statutorily tolled while a prisoner has a properly filed state post-conviction motion or other state collateral attack under consideration. See 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that an application for federal habeas review is not "an application for state post-conviction or other review" within the meaning of 28 U.S.C. § 2244(d)(2) that would toll the one year statute of limitations for habeas cases found in 28 U.S.C. § 2244(d)(1)); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir. 2000); Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999).
The Michigan Court of Appeals last affirmed Petitioner's convictions and sentences in a direct appeal on September 23, 1997. People v. Allen, Mich. Ct. App. No. 198484. Because Petitioner did not file an application for leave to appeal her conviction to the Michigan Supreme Court in her last direct appeal, her conviction became final and the one year limitations period for Petitioner to file her habeas petition began to run on November 18, 1997, when the time for seeking leave to appeal with the Michigan Supreme Court expired. See, Eisermann v. Penarosa, 33 F. Supp.2d 1269, 1272-73 (D. Hawaii 1999).
If Petitioner had sought leave to appeal her last direct appeal decision of the Michigan Court of Appeals to the Michigan Supreme Court, her conviction would become final, for the purposes of the AEDPA's limitations period, on the date that the 90 day time period for seeking certiorari with the United States Supreme Court expired If she did not seek a writ of certiorari, or when the United States Supreme Court decided her case if she did. See Rule 13(1), Supreme Court Rules; Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000); Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001). However, Petitioner's failure to seek leave to appeal the September 23, 1997, decision of the Michigan Court of Appeals divested the U.S. Supreme Court of jurisdiction to grant a writ of certiorari. Eisermann, 33 F. Supp.2d at 1272-1 273, fn. 5 (citing to Flynt v. Ohio, 451 U.S. 619 (1981); Street v. New York, 394 U.S. 576 (1969)). Consequently, Petitioner foreclosed having the ninety day period for seeking certiorari with the U.S. Supreme Court added to the calculation of the limitations period. Id.
Petitioner's conviction became final after the effective date of the AEDPA. Therefore, the statute of limitations began running on November 19, 1997, the day after her conviction became final. Petitioner filed a state post-conviction motion for relief from judgment on September 28, 1998. This tolled the running of the statute of limitations. Consequently, fifty-one days remained of the one year limitations period when the limitations period was tolled.
Title 28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted toward the period of limitations contained in the statute. Matthews v. Abramajtys, 39 F. Supp.2d 871, 874 (E.D.Mich. 1999). However, although the time during which a properly filed application for collateral review is pending in the state courts is excluded from the one year limitations period, the limitations period is not reset upon the conclusion of state collateral review. Neal v. Bock, 137 F. Supp.2d 879, 884 (E.D.Mich. 2001). Thus, petitioner's motion for relief from judgment did not cause the one year limitations period to begin to run anew after the post-conviction motion was denied. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001). Petitioner did not have one year following the denial of her post-conviction motion for relief from judgment to file her habeas petition with this Court, because the one year limitations period under the AEDPA begins to run at the conclusion of the direct review of a habeas petitioner's conviction, and not on the date which a habeas petitioner has exhausted all of her state post-conviction remedies. See Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001). Consequently, when Petitioner filed her state post-conviction motion, only fifty-one days remained of the one year limitations period. See also, Grayson v. Grayson, 185 F. Supp.2d 747, 750 (E.D.Mich. 2002); Smith v. Stegall, 141 F. Supp.2d 779, 782-783 (E.D.Mich. 2001).
Petitioner contends in her answer to Respondent's motion to dismiss that, because Michigan has no state statute of limitations on the filing of a motion for relief from judgment, the habeas corpus statute of limitations should not run during the time between the completion of Petitioner's direct appeal and the filing of her motion for relief from judgment. Petitioner contends that having the statute of limitations run from the completion of the petitioner's direct appeal "would result in a premature state application for [post-conviction] relief." Petitioner Answer at 2.
Petitioner's argument is unpersuasive for several reasons. First, because the habeas corpus statute of limitations states that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2) (emphasis added). The statute does not state that the time during which an application for state post-conviction relief could still be filed shall not be counted, or the time before an application is filed shall not be counted. Second, Payton v. Brigano, 256 F.3d at 408, forecloses the result Petitioner seeks by clarifying that "[t]he statute of limitations begins to run from the latest of four circumstances, one of which is the `date on which the judgment became final by the conclusion of direct review or expiration of the time for seeking such review.' 28 U.S.C. § 2244(d)(1)(A)." None of the other three circumstances apply in Petitioner's case. Finally, this Court notes that there is no logical endpoint to the tolling (actually elimination) of the statute of limitations Petitioner advocates. Under Petitioner's view, a defendant could wait five, ten, or twenty years or more after the completion of direct review to file her motion for relief from judgment and then expect (or at least argue) that the habeas limitations period would not have started running because there is no state statute of limitations on filing the motion for relief from judgment. Such a result would completely undermine the purpose of the habeas statute of limitations, as well as render meaningless the statutory language declaring that a properly filed application for state post-conviction relief or other collateral review tolls the habeas limitations period while it is pending.
With respect to Petitioner's claim that having the limitations period begin running immediately after a defendant's conviction becomes final encourages "premature" applications for state post-conviction relief, this Court notes that both the federal and state courts have an interest in having defendants pursue all available, non-frivolous claims as soon as possible. Furthermore, the habeas statute itself provides that, if a Petitioner's claim is based on a retroactive, newly recognized constitutional right or a newly discovered factual predicate, the limitations period shall run from the date on which the right was recognized and made retroactive by the United States Supreme Court or the date on which the new factual predicate indicated could have been discovered through due diligence. 28 U.S.C. § 2244(d)(1)(C)and (D).
Therefore, only fifty-one days remained in Petitioner's one year habeas limitations period when she filed her motion for relief from judgment on September 28, 1998. The limitations period remained tolled throughout the adjudication of Petitioner's motion, including those intervals between one state court's judgment and the filing of an appeal with a higher state court so long as the petitioner timely filed the necessary papers at each stage of the proceedings. Carey v. Saffold, ___ U.S. ___, ___, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002). The Michigan Supreme Court denied Petitioner's application for leave to appeal denial of her motion for relief from judgment on August 22, 2000. People v. Allen, Mich. Sup.Ct. No. 116531 (Aug. 22, 2000). The Michigan Supreme Court denied Petitioner's motion for reconsideration of this decision on October 30, 2000. People v. Allen, Mich. Sup.Ct. No. 116531 (Oct. 30, 2000). This last decision finalized the denial of Petitioner's motion for relief from judgment in state court.
Consequently, the habeas corpus statute of limitations began running again the next day, October 31, 2000. See, Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (holding that when seeking state post-conviction relief under § 2244(d)(2), the one-year period of limitations is not tolled during that "time in which a defendant could have potentially filed a petition for certiorari with the United States Supreme Court following a state court's denial of post-conviction relief," because a petition for certiorari to the United States Supreme Court is not "state post conviction relief."). See also, Abela v. Martin, 309 F.3d 338, 345-48 (6th Cir. 2002) (reaffirming the controlling authority of Isham and collecting cases).
Petitioner had just fifty-one days remaining in her one year statute of limitations period when this period began running again on October 31, 2000. The habeas petition before this Court was filed on October 22, 2001, three hundred and fifty-four days after the statute began running again. Thus, Petitioner filed her habeas petition over three hundred days (or about ten months) after the limitations period expired. Consequently, the petition is barred by the statute of limitations unless Petitioner is entitled to equitable tolling of the limitations period.
The Court notes that, even if the statute was considered tolled for the additional ninety days available for seeking a writ of certiorari following the Michigan Supreme Court's denial of Petitioner's motion for reconsideration, the present petition would still be untimely.
The United States Court of Appeals for the Sixth Circuit has determined that the one-year limitations period is subject to equitable tolling. In Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test are:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.Dunlap, 250 F.3d at 1008.
Petitioner first asserts that the statute of limitations should not bar her petition because "[t]here was a great deal of confusion among lawyers and the courts as to how the limitation period would apply to state prisoners whose convictions occurred prior to the effective date of the AEDPA." Petitioner's Answer to Respondent's Motion to Dismiss at 5. Petitioner notes that it was not until Austin v. Mitchell was decided in December of 1999 that the Sixth Circuit held that there was a one year grace period from the effective date of the AEDPA's on April 24, 1996, until April 24, 1997, for petitioners whose convictions became final before the effective date of the AEDPA. However, Petitioner's conviction became final after the effective date of the AEDPA.
It is correct that Austin v. Mitchell was not decided until December of 1999. The law was somewhat unsettled as petitioners whose convictions became final before the effective date of the AEDPA. This Court is not aware, however, of the law being unsettled regarding when the one year statute of limitations would begin running for petitioners such as Petitioner Allen, whose convictions became final after the effective date of the AEDPA.
There was, however, substantial unpublished Sixth Circuit law, published district court law from the Eastern and Western Districts, as well as published law from other districts and circuits indicating that petitioners whose convictions became final before the effective date of the AEDPA would have a one year grace period ending April 24, 1997, within which to file their habeas petitions. See, e.g., Trice v. Toombs, 166 F.3d 1215, 1998 WL 808366, at **2 (6th Cir.(Mich.)) (Nov. 9, 1998) ("although the literal language of the statute would preclude Trice from filing a habeas petition anytime after March 1994, the federal courts that have considered this section have uniformly either applied a one-year grace period or a "reasonable" grace period from the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat 1214 (1996). See United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998) (applying one-year grace period); Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998) (same); Calderon v. United States Dist. Court, 128 F.3d 1283, 1287 (9th Cir. 1997) (same but subject to equitable extensions), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); and cert. denied sub. nom. Beeler v. Calderon, 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998); United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir. 1997) (applying one-year grace period); Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997) (allowing a "reasonable time"). No court has held that a "reasonable time" is longer than one year. In either event, Trice does not qualify for relief since he waited until July of 1997 to file his petition, long after either a year or a "reasonable time" from the AEDPA's April 24, 1996, effective date.") (unpublished); United States v. Logan, 22 F. Supp.2d 691, 693-94 (W.D. Mich. Oct. 15, 1998) ("Petitioners are given a one-year grace period from the date of enactment within which to file their petitions, eliminating any retroactivity concerns.") (citing United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997); Finfrock v. Mack, 1998 WL 823103 (S.D. Ohio, Nov. 16, 1998) (Report and Recommendation) (Merz, Magistrate J.) (petitioners are given a "one year after the AEDPA was enacted grace period for filing habeas petitions on convictions which became final on or before April 24, 1996. The absence of such a grace period would render the new statute of limitations unconstitutional as to any habeas claims which accrued before April 24, 1996." citing Block v. North Dakota, 461 U.S. 273, 286 at n. 23, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983); Texaco, Inc., v. Short, 454 U.S. 516, 527 at n. 21, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982), quoting Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804 (1902); Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365 (1877); Sohn v. Waterson, 17 Wall. 596, 84 U.S. 596, 21 L.Ed. 737 (1873)); Hudson v. Jones, 35 S.Supp.2d 986, 988 (E.D. Mich. Feb. 5, 1999) ("prisoners whose convictions became final before the AEDPA was enacted have been accorded one year from the effective date of the AEDPA to comply with the new limitations period.") (citing Ross v. Artuz, 150 F.3d 97, 100-01 (2nd Cir. 1998) (collecting cases)).
In any event, ignorance of the law does not entitle Petitioner to equitable tolling. A habeas petitioner is not entitled to equitable tolling of the statute of limitations due to a lack of academic and legal education, or lack of knowledge of the law. Turner v. Smith, 70 F. Supp.2d 785, 787 (E.D.Mich. 1999). Ignorance of the law alone is insufficient to invoke the doctrine of equitable tolling. Moore v. Hawley, 7 F. Supp.2d 901, 904 (E.D.Mich. 1998). Therefore, the fact that Petitioner and/or counsel lacked the legal sophistication to act or properly advise her regarding the habeas statute of limitations is not an extraordinary circumstance that would equitably toll the statute of limitations. Hood v. Galaza, 47 F. Supp.2d 1144, 1148 (S.D.Cal. 1999). Further, a habeas petitioner's ignorance as to the proper calculation of the limitations period for filing a federal habeas petition does not warrant equitable tolling. See Pearson v. North Carolina, 130 F. Supp.2d 742, 744 (W.D.N.C. 2001).
Petitioner does not allege that she was given mistaken advise regarding the habeas statute of limitations by appellate counsel in an appeal of right.
Finally, petitioner is not entitled to tolling of the limitations period pursuant to an "actual innocence" exception. Another judge in this district has recently held that an actual innocence exception exists that would toll the one year limitations period contained in § 2244(d)(1). See Holloway v. Jones, 166 F. Supp.2d 1185, 1190 (E.D.Mich. 2001) (Tarnow, J.). However, the United States Supreme Court has indicated that "actual innocence" means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). The Supreme Court has also explained that "the miscarriage of justice exception [to the procedural default rule] is concerned with actual as compared to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). In order for a claim of actual innocence to be credible, "a claim of actual innocence must be based on reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Finally, actual innocence "does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Schlup, 513 U.S. at 329.
In the present case, petitioner has failed to offer new, reliable evidence that would establish that she is actually innocent of these crimes. Petitioner offers an exculpating affidavit of convicted co-defendant Ronald Light as evidence of her innocence. This evidence does not entitle Petitioner to equitable tolling under an actual innocence exception because it is not reliable new evidence of innocence. Post-conviction exculpatory statements of a co-conspirator or co-defendant are inherently suspect. United States v. Benavente Gomez, 921 F.2d 378, 383 (1st Cir. 1990) ("[A]ttempts by one defendant to take full responsibility after trial and conviction are common and are viewed with skepticism."). "[C]ourts are concerned about the credibility of a convicted codefendant's testimony because he or she falsely may assume all of the blame without further consequences in an effort to help his or her cohort" United States v. Jasin, 280 F.3d 355, 368 (3d Cir. 2002). It is also doubtful whether this evidence is new, although it may have been unavailable at trial if Ronald Light exercised his Fifth Amendment right not to testify. See, Id.
Although Petitioner challenges the jury instructions on aiding and abetting resulted in her wrongful conviction and re-argues the evidence of the case previously submitted to the jury at trial, and claims that these factors create at least a reasonable doubt that she is actually innocent, this is not sufficient to satisfy the actual innocence exception to the statute of limitations. In the absence of reliable new evidence of innocence, Petitioner's jury instruction claim and re-argument of the trial evidence cannot be considered by this Court in determining whether an actual innocence exception exists in Petitioner's case for purposes of tolling the statute of limitations period. Holloway, 166 F. Supp.2d at 1191; Grayson v. Grayson, 185 F. Supp.2d at 750; Smith v. Stegall, 141 F. Supp.2d at 782-783; Alexander v. Keane, 991 F. Supp. 329, 340 (S.D.N.Y. 1998). Accordingly, petitioner is not entitled to the tolling of the limitations period under an actual innocence exception.
Petitioner does not allege that there was any impediment to her filing her habeas petition within the fifty-one days remaining in the limitations period after the Michigan Supreme Court finalized denial of her motion for relief from judgment. For example, Petitioner does not allege that psychosis or mental retardation or interference by prison authorities preventing her from filing her habeas petition on time. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (equitable tolling only permitted "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time").
Consequently, for all of the above reasons, Petitioner is not entitled to equitable tolling of the statute of limitations.
Petitioner's conviction became final on November 18, 1997, fifty-six days after the Michigan Court of Appeals affirmed her conviction and sentence. The one-year limitations period was tolled by her post-conviction motion for relief from judgment with fifty-one days remaining in it. Petitioner filed her habeas petition about ten months after the limitations period began running again with only fifty-one days remaining in it. Petitioner has failed to offer satisfactory reasons that would support the equitable tolling of the limitations period. Consequently, the present petition was filed well after the limitations period expired and review of the petition is barred by the statute of limitations.
III. Conclusion
The Court determines that the current habeas petition is barred by the AEDPA's one year statute of limitations contained in § 2244(d)(1). Petitioner's convictions became final after the effective date of the AEDPA. Therefore, unless the statute of limitations was tolled, Petitioner had one year after her convictions became final to file her habeas petition. The one-year limitations period was statutorily tolled with fifty-one days remaining in it. However, the petition was filed about ten months after the remaining fifty-one days in the limitations period had ran out. Petitioner is not entitled to equitable tolling because (1) she has not presented any new reliable evidence that she is actually innocent and (2) Petitioner has not alleged that any extraordinary circumstances beyond a her control made it impossible to file a petition on time. Therefore, the Court will summarily dismiss the current petition for failure to comply with the statute of limitations.
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.