UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARLES HURST,

 

Petitioner, Case No. 2:14-cv-12654

 Hon. Denise Page Hood

v.

BONITA HOFFNER,

Respondent.

_______________________________________/

OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR

WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF

APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN

FORMA PAUPERIS

This is a habeas case brought pursuant to 28 U.S.C. § 2254. In 1985, Petitioner

was convicted after a jury trial in the Record’s Court for the City of Detroit of two

counts of first-degree criminal sexual conduct. He was initially sentenced to 40-to-80

years imprisonment, but he was subsequently resentenced to a parolable life term.

Petitioner alleges that his resentencing violated his Fifth Amendment rights because

the sentencing judge erroneously believed that a parolable life sentence was more

lenient than the 40-to-80 year term, and he was not awarded credit for time already

served. After preliminary review of the petition, the Court ordered Petitioner to show

cause why the petition should not be dismissed for failure to comply with the one-year

statute of limitations. Petitioner filed a response to the show cause order arguing: (1)

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he did not know that his life sentence was worse than his prior sentence until the

practices of the parole board changed; (2) his claim is meritorious and therefore the

statute of limitations should not apply; and (3) a fundamental miscarriage of justice

would occur if the petition is dismissed as untimely. For the reasons stated below, the

petition will be dismissed for failure to comply with the statute of limitations.

I. Background

Petitioner’s direct appeal was decided in 1988. People v. Hurst, 169 Mich. App.

160 (1988). About twenty-five years after his resentencing, on June 12, 2012,

Petitioner filed a petition for writ of habeas corpus in the Branch Circuit Court raising

what now form his habeas claims. On July 12, 2012, the court dismissed the petition,

finding that a writ of habeas corpus is not a substitute for an appeal under state law

and that Petitioner could have raised his claims in his direct appeal. Petitioner

appealed this decision, but the Michigan Court of Appeals denied his petition by order

dated August 20, 1013. Hurst v. Warden, No. 313231 (Mich. Ct. App. Aug, 20, 2013).

Petitioner’s subsequent appeal was denied by the Michigan Supreme Court. Hurst v.

Warden, No. 147786 (Mich. Sup. Ct. Jan. 31, 2014). 

II. Standard of Review

Upon the filing of a habeas corpus petition, the Court must promptly examine

the petition to determine “[i]f it plainly appears from the petition and any attached

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exhibits that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing

Section 2254 Cases. If the Court determines that the petitioner is not entitled to relief,

the Court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856

(1994) (“Federal courts are authorized to dismiss summarily any habeas petition that

appears legally insufficient on its face”). A preliminary question in a habeas case

brought by a state prisoners whether Petitioner complied with the one-year statute of

limitations. “[D]istrict courts are permitted . . . to consider sua sponte, the timeliness

of a state prisoner’s habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006).

III. Discussion 

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

one-year statute of limitations applies to an application for writ of habeas corpus by

a person in custody pursuant to a judgment of a state court. The one-year limitations

period runs 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

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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).

Absent equitable tolling, a petition for writ of habeas corpus must be dismissed

where it has not been filed before the limitations period expires. See 28 U.S.C. §

2244(d)(1); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004).

Petitioner does not argue there was an impediment to filing his federal habeas

petition created by State action, that his claims are based on a newly created

constitutional right, and he has not demonstrated that his claims are based on a newly

discovered factual predicate that predates that enactment of the statute of limitations.

Therefore, the potential starting points under §§ 2244(d)(1)(B),(C), and (D) do not

apply to his petition. The applicable starting point is the date on which his conviction

became final under § 2244(d)(1)(A). Because Petitioner’s conviction became final

well before the enactment of the statute of limitations, Petitioner was given a one-year

grace period from its enactment, or until April 24, 1997, to file his federal habeas

petition. See Griffin v. Rogers, 399 F.3d 626, 632 (6th Cir. 2005).

Petitioner’s habeas application was filed more than a decade after the expiration

of the grace period. The petition is therefore time barred unless Petition can

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demonstrate grounds for equitable tolling. Holland v. Florida, ___ U.S. ___; 130 S.

Ct. 2549, 2560; 177 L.Ed.2d 130 (2010). A petitioner is entitled to equitable tolling

if he shows “‘(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 2562

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner may also be

eligible for equitable tolling if he demonstrates a credible claim of actual innocence,

so that by refusing to consider his petition due to timeliness the court would cause a

fundamental miscarriage of justice. Souter v. Jones, 395 F.3d 577, 602 (6th Cir. 2005).

Equitable tolling is used “sparingly” by the federal courts. Robertson v. Simpson, 624

F.3d 781, 784 (6th Cir. 2010). The party seeking equitable tolling bears the burden of

proving that he is entitled to it. Id. “Absent compelling equitable considerations, a

court should not extend limitations by even a single day.” Graham-Humphreys v.

Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000) (citation

omitted).

Petitioner has not adequately explained why his petition was untimely filed.

First, Petitioner knew, or should have known, at the time of his resentencing that he

was not awarded credit for time served. With respect to the allegation that trial judges

at that period of time might have mistakenly believed that a parolable life sentence

was preferable to a lengthy term of years, claims of that sort were well-known and had

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been raised prior to the enactment of the statute of limitations. See, e.g., Jeanice

Dagher-Margosian, Life Means Life, Parole Rarely Granted on Nommandatory Life

Terms, 73 MICH.B.J. 1184, 1184-1185 (1994); People v. Carson, 220 Mich. App.

662, 673 (1996) (discussing contention that a sentence of parolable life is invariably

a greater penalty than a sentence of a term of years). Petitioner has not demonstrated

an adequate reason for waiting until 2012 to raise his claims. Ignorance of the law is

not a valid reason for equitable tolling, even for imprisoned pro se habeas petitioners.

Griffin v. Rogers, 399 F.3d 626, 637 (6th Cir. 2005); Winkfield v. Bagley, 66 Fed.

Appx. 578, 583 (6th Cir. 2003).

Next, Petitioner’s contention that the statute of limitations cannot bar

meritorious claims is baseless. If this were the rule, then the statute of limitations

would be meaningless. Helton v. Secretary for Dept. Of Corrections, 259 F.3d 1310,

1314-15 (11th Cir. 2001)(merits of a habeas petitioner’s claims not relevant to whether

extraordinary circumstances exist justifying the late filing of petition).

Finally, the fundamental miscarriage of justice exception applies only to habeas

petitioners who make a credible showing of actual innocence under the standard

enunciated in Schlup v. Delo, 513 U.S. 298 (1995). See Souter v. Jones, 395 F. 3d 577,

599-600 (6th Cir. 2005). Petitioner’s case falls outside of the actual innocence tolling

exception enunciated in Souter because he candidly admits that he is not raising a

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claim of actual innocence. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005). 

Therefore, because Petitioner’s application for habeas relief was filed after

expiration of the one-year limitations period, and because he has failed to demonstrate

grounds for equitably tolling, the petition will be summarily dismissed. 

IV. Conclusion

Before Petitioner may appeal, a certificate of appealability must issue. See 28

U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the

substantial showing threshold is met if the petitioner demonstrates that reasonable

jurists would find the court’s assessment of the claim debatable or wrong. See Slack

v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural

grounds without addressing the merits, a certificate of appealability should issue if it

is shown that jurists of reason would find it debatable whether the petitioner states a

valid claim of the denial of a constitutional right, and that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling. Id. Having

undertaken the requisite review, the court concludes that jurists of reason could not

find the court’s procedural ruling that the petition is untimely debatable. The Court

will additionally deny Petitioner permission to proceed on appeal in forma pauperis

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because any appeal would be frivolous. 

V. Order

For the foregoing reasons, IT IS ORDERED that the petition for a writ of

habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that permission to proceed on appeal in forma

pauperis is DENIED.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: January 20, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of

record on January 20, 2015, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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