UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ROOSEVELT BRYANT PRESCOTT,

Petitioner,

v. Civil No. 2:14-CV-13220-DT

LORI GIDLEY,

Respondent,

 /

OPINION AND ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 

Petitioner Roosevelt Bryant Prescott incarcerated at the Oaks Correctional

Facility in Manistee, Michigan, seeks the issuance of a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction for

second-degree murder,1

 and possession of a firearm in the commission of a felony

(felony-firearm), third offense.2

 Respondent filed a motion for summary judgment,

contending that the petition was not timely filed in accordance with the statute of

limitations contained in 28 U.S.C. § 2244 (d)(1). Petitioner did not file a response to the

motion. For the reasons stated below, the petition for writ of habeas corpus will be

summarily dismissed pursuant to 28 U.S.C. § 2244(d)(1).

1

 Mich. Comp. Laws § 750.317; Mich. Stat. Ann. 28.549.

2

 Mich. Comp. Laws § 750.227b; Mich. Stat. Ann. 28.424(2).

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I. BACKGROUND

A. The Habeas Petition

Petitioner was originally charged with first-degree murder, fleeing and eluding,

felon in possession of a firearm, felony-firearm, third offense and being an habitual

offender. On November 2, 2011, Petitioner pleaded guilty in the Wayne County Circuit

Court to a reduced charge of second-degree murder with a sentence agreement of

sixteen to thirty-five years and to the felony-firearm charge, in exchange for which the

other charges were dismissed. On November 17, 2011, Petitioner was sentenced to

sixteen to thirty-five years in prison on the second-degree murder conviction and ten

years in prison on the felony-firearm conviction.

Petitioner did not file an appeal from his conviction. 

On March 29, 2013, Petitioner filed a post-conviction motion for relief from

judgment with the Wayne County Circuit Court, which was denied. People v. Prescott,

No. 11-008344-01-FC (Third Circuit Court of Michigan, July 8, 2013). The Michigan

Court of Appeals denied Petitioner leave to appeal. People v. Prescott, No. 317652

(Mich.Ct.App. November 5, 2013). On June 24, 2014, the Michigan Supreme Court

denied Petitioner leave to appeal. People v. Prescott, 847 N.W.2d 645 (Mich. 2014).

Petitioner’s habeas petition was signed and dated August 15, 2014, and filed

with the court on August 20, 2014.3

3

 Under the prison mailbox rule, the court assumes that Petitioner actually filed

his habeas petition on August 15, 2014, the date that it was signed and dated. See

Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999). 

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II. DISCUSSION

In Respondent’s Motion for Summary Judgment, she asserts the petition for writ

of habeas corpus should be dismissed because it was not filed within the one year

statute of limitations. Petitioner did not file a response in opposition to this motion, and

the court agrees with Respondent’s position. 

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Sanders v. Freeman, 221 F. 3d 846, 851 (6th Cir.

2000)(quoting Federal Rule of Civil Procedure 56(c)). To defeat a motion for summary

judgment, the non-moving party must set forth specific facts sufficient to show that a

reasonable factfinder could return a verdict in his favor. Id. The summary judgment

rule applies to habeas proceedings. See Redmond v. Jackson, 295 F. Supp. 2d 767,

770 (E.D. Mich. 2003).

28 U.S.C. § 2244(d) imposes a one-year statute of limitations upon petitions for

habeas relief:

(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 originally

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. 

Although not jurisdictional, the AEDPA’s one year limitations period “effectively

bars relief absent a showing that the petition’s untimeliness should be excused based

on equitable tolling and actual innocence.” See Akrawi v. Booker, 572 F. 3d 252, 260

(6th Cir. 2009). A petition for writ of habeas corpus must be dismissed where it has not

been filed within the one year statute of limitations. See Holloway v. Jones, 166 F.

Supp. 2d 1185, 1187 (E.D. Mich. 2001). 

The court must initially determine when Petitioner’s conviction became “final,” in

order to determine when the limitations period began running. See Williams v. Wilson,

149 F. App’x 342, 345 (6th Cir. 2005). For purposes of commencing the one year

limitations period pursuant to § 2244(d)(1)(A), a state-court judgment becomes “final”

when direct review by the state court ends or when the time to seek direct review

expires, whichever comes later. See Wilberger v. Carter, 35 F. App’x 111, 114 (6th Cir.

2002).

Petitioner was sentenced on November 17, 2011. Petitioner had six months

after his sentence pursuant to M.C.R. 7.205(F)(3) to file a delayed application for leave

to appeal. Because Petitioner never filed a direct appeal from his conviction and

sentence, his judgment of sentence became final, for the purposes of § 2244(d)(1)(A),

six months after the sentencing, when the time limit for filing a direct appeal in the

Michigan Court of Appeals expired pursuant to M.C.R. 7.205(F)(3). See Williams v.

Birkett, 670 F.3d 729, 731 (6th Cir. 2012). Petitioner’s conviction therefore became

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final on May 17, 2012. Petitioner had until May 17, 2013 to timely file a petition for writ

of habeas corpus with this court, unless the limitations period was somehow tolled.

Under 28 U.S.C. § 2244(d)(2), the time during which a properly filed application

for state post-conviction relief or other collateral review is pending shall not be counted

towards the period of limitations contained in the statute. See McClendon v. Sherman,

329 F.3d 490, 493-94 (6th Cir. 2003). A post-conviction application remains pending in

the state courts, for purposes of § 2244(d)(2), until it “has achieved final resolution

through the state’s post-conviction procedures.” Carey v. Safford, 536 U.S. 214, 220

(2002). Here, Petitioner filed his post-conviction motion for relief from judgment in state

court on March 29, 2013, after three hundred and fifteen days had elapsed under the

statute of limitations. The tolling of the AEDPA’s one year statute of limitations ended in

this case when the Michigan Supreme Court denied Petitioner’s application for leave to

appeal the denial of his motion for relief from judgment on June 24, 2014. See Hudson

v. Jones, 35 F. Supp. 2d 986, 988-89 (E.D. Mich. 1999). Petitioner had fifty days

remaining from this date, which would have been no later than August 13, 2014, to

timely file his petition with this Court. Because the instant petition was not filed until two

days later on August 15, 2014, the petition is untimely and was not filed in compliance

with the AEDPA’s one year statute of limitations. 

The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate

cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). The burden is on a habeas

petitioner to show that he or she is entitled to the equitable tolling of the one year

limitations period. See Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). 

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Petitioner is not entitled to equitable tolling of the one year limitations period. Petitioner

wholly failed to respond to the Motion for Summary Judgment, and thus provides no

argument that the circumstances of his case warrant equitable tolling. See Giles v.

Wolfenbarger, 239 F. App’x 145, 147 (6th Cir. 2007).

The one year statute of limitations may be equitably tolled based upon a credible

showing of actual innocence under the standard enunciated in Schup v. Delo, 513 U.S.

298 (1995). McQuiggin v. Perkins, 133 S. Ct. 192, 1928 (2013). The Supreme Court

has cautioned that “tenable actual-innocence gateway pleas are rare[.]” Id. “[A]

petitioner does not meet the threshold requirement unless he persuades the district

court that, in light of the new evidence, no juror, acting reasonably, would have voted to

find him guilty beyond a reasonable doubt.” Id. (quoting Schlup, 513 U.S. at 329). 

Moreover, in determining whether petitioner makes out a compelling case of actual

innocence, so as to toll the AEDPA’s limitations period, “‘the timing of the [petition]’ is a

factor bearing on the ‘reliability of th[e] evidence’ purporting to show actual innocence.”

Id. (quoting Schlup, 513 U.S. at 332). For an actual innocence exception to be credible

under Schlup, such a claim requires a habeas petitioner to support his or her

allegations of constitutional error “with new reliable evidence--whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that

was not presented at trial.” Schlup, 513 U.S. at 324.

Petitioner’s case falls outside of the actual innocence tolling exception, because

Petitioner presents no new, reliable evidence to establishing he is actually innocent of

the crime charged. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005). Any

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actual innocence exception to AEDPA’s statute of limitations is particularly inapplicable,

in light of the fact that Petitioner pleaded guilty to the charges that he challenges in this

petition. See Reeves v. Cason, 380 F. Supp. 2d 883, 885 (E.D. Mich. 2005). Petitioner

fails to offer “new reliable evidence” that is “so strong that a court cannot have

confidence in the outcome” of his guilty plea. See Connolly v. Howes, 304 F. App’x 412,

419 (6th Cir. 2008). 

B. A Certificate of Appealability

Before Petitioner may appeal this decision, 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 district court denies a

habeas petition on procedural grounds without reaching the prisoner’s underlying

constitutional claims, a certificate of appealability should issue, and an appeal of the

district court’s order may be taken, if the petitioner shows 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. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When a plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district court

erred in dismissing the petition or that the petition should be allowed to proceed further. 

In such a circumstance, no appeal would be warranted. Id. “The district court must

issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.

The court denies Petitioner a certificate of appealability, because reasonable

jurists would not find it debatable whether the court was correct in determining that

Petitioner filed his habeas petition outside of the one year limitations period. See

Grayson v. Grayson, 185 F. Supp. 2d 747, 753 (E.D. Mich. 2002). 

III. CONCLUSION

IT IS ORDERED that Respondent’s unopposed Motion for Summary Judgment

(Dkt. # 6) is GRANTED.

IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of

appealability.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: August 17, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, August 17, 2015, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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