Opinion
No. 01-73344
March 29, 2002
OPINION AND ORDER GRANTING RESPONDENT'S FOR SUMMARY DISPOSITION AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Richard Joseph Kelly, a state inmate currently incarcerated at the Mound Correctional Facility in Detroit, Michigan, has filed apro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Now before the Court is Respondent's Motion for Summary Disposition and Dismissal of Petition for Writ of Habeas Corpus. For the reasons set forth below, the Court grants the Motion.
II. Procedural History
Following a bench trial in Detroit Recorder's Court, Petitioner was convicted of seconddegree murder and felony firearm. On August 14, 1985, he was sentenced to thirty-five to sixty years imprisonment for the murder conviction and two years imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals. On May 4, 1988, the Michigan Court of Appeals affirmed Petitioner's convictions and sentences. People v. Kelly, No. 85-00 1403 (Mich.Ct.App. May 4, 1988).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, which was denied. People v. Kelly, No. 83361 (Mich. Nov. 30, 1988).
On June 24, 1999, Petitioner filed a motion for relief from judgment in the trial court, which was denied. Thereafter, Petitioner filed a delayed application for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Kelly, No. 224520 (Mich.Ct.App. Aug. 21, 2000). Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, which was also denied. People v. Kelly, No. 117668 (Mich. Feb. 26, 2001).
On August 14, 2001, Petitioner filed the pending petition for a writ of habeas corpus.
III. Analysis
Respondent has filed a motion for summary disposition on the ground that the petition for a writ of habeas corpus is barred from review because it is untimely. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA" or "the Act") applies to all habeas corpus petitions filed after the effective date of the Act, April 24, 1996. Petitioner's application for habeas corpus relief was filed after April 24, 1996. Therefore, the provisions of the AEDPA, including the limitations period for filing an application for habeas corpus relief, apply to petitioner's application. Lindh v. Murphy, 521 U.S. 320, 337 (1997).
Among other amendments, the AEDPA amended 28 U.S.C. § 2244 to include a one-year limitations period within which habeas petitions challenging state court judgments must be filed. A prisoner must file a federal habeas corpus petition within one year of 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.(d)(1)(A). However, the time during which a prisoner seeks collateral review of a conviction does not count toward the limitations period. Section 2244(d)(2) provides:
The time during which a properly filed application for postconviction 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).
In the pending case, Petitioner's conviction became final before the AEDPA's effective date, April 24, 1996. Therefore, absent state collateral review, Petitioner was required to file his application for habeas corpus relief by April 24, 1997, to comply with the one-year limitations period. Petitioner sought state collateral review of his conviction by filing a motion for relief from judgment in the trial court. However, he did not file his motion for relief from judgment until June 24, 1999. Thus, the limitations period commenced on April 24, 1996 and continued to run, uninterrupted, until it expired on April 24, 1997. Petitioner's motion for relief from judgment was filed over two years after the limitations period expired and, consequently, did not serve to toll the limitations period. Accordingly, his petition is untimely.
In his response to the motion for summary disposition, Petitioner argues that his petition should not be dismissed as untimely because he is entitled to equitable tolling of the limitations period. The Sixth Circuit Court of Appeals has identified the following five factors to be considered in determining the appropriateness of equitably tolling a statute of limitations: (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 v. U.S., 250 F.3d 1001, 1008 (2001).
Petitioner argues that he is entitled to equitable tolling because he was ignorant of the limitations period. Petitioner, however, provides no explanation for his having remained ignorant of the limitations period for over three years. A petitioner's ignorance of the limitations period, by itself, does not warrant equitable tolling. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991) (holding that ignorance of the law is insufficient to warrant equitable tolling); Sperling v. White, 30 F. Supp.2d 1246, 1254 (C.D. Cal. 1998) (collecting cases establishing that ignorance of the law, illiteracy, and lack of legal assistance do not justify equitable tolling).
Accordingly, the Court holds that the petition is untimely and that Petitioner is not entitled to equitable tolling of the limitations period.
IV. Conclusion
For the foregoing reasons, the Court concludes that the habeas corpus petition was filed outside the one-year limitations period prescribed in 28 U.S.C. § 2244(d)(1)(A). Further, the Court concludes that Petitioner has failed to establish that he is entitled to equitable tolling of the limitations period.
Accordingly, IT IS ORDERED that the Respondent's Motion for Summary Disposition is GRANTED.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 2244(d)(1)(A).