UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RAMONE WILSON,

 

Petitioner, Case No. 2:14-cv-14232

 Hon. Paul D. Borman

v.

DEWAYNE BURTON,

Respondent.

_______________________________________/

OPINION AND ORDER DENYING PETITIONER’S MOTION FOR EQUITABLE

TOLLING, [Dkt. 7], SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS

CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING

PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS

This is a habeas case brought pursuant to 28 U.S.C. § 2254. On October 17, 2003, Petitioner

was sentenced to15-to-40 years following his Oakland Circuit Court conviction of carjacking. The

petition raises two claims: 1) Petitioner was sentenced based on inaccurate information, and 2)

Petitioner was erroneously denied the opportunity to file a successive motion for relief from

judgment in the trial court. 

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 responded by filing a “motion for equitable tolling” [dkt. 7], acknowledging that the

petition was untimely filed, but asserting that he is entitled to equitable tolling. For the reasons stated

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

will also be denied a certificate of appealability and permission to proceed on appeal in forma

pauperis. 

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I. Background

Following his conviction, Petitioner filed an appeal of right in the Michigan Court of

Appeals. His conviction was affirmed in an unpublished opinion. People v. Wilson, No. 268417

(Mich. Ct. App. March 27, 2007). Petitioner attempted to appeal this decision to the Michigan

Supreme Court, but his application for leave to appeal was rejected as untimely on May 24, 2007.

Petitioner filed a motion for relief from judgment in the trial court on February 1, 2010. The

motion was denied on May 3, 2010. Petitioner appealed, but the Michigan Court of Appeals denied

leave to appeal on January 21, 2011. People v. Wilson, No. 142690 (Mich. Ct. App. Jan. 21, 2011).

The Michigan Supreme Court subsequently denied relief on September 6, 2011. People v. Wilson,

No. 142690 (Mich. Sept. 6, 2011). 

Petitioner subsequently filed a second motion for relief from judgment in the trial court that

was denied on October 18, 2012. He appealed this decision, but the Michigan Court of Appeals

denied relief on September 16, 2013. People v. Wilson, No. 313261 (Mich. Ct. App. Sept. 16, 2013).

The Michigan Supreme Court later denied relief on January 31, 2014. People v. Wilson, No. 147865

(Mich. Jan. 31, 2014).1

 

Petitioner signed and dated the present habeas petition on October 27, 2014.

1

The Court obtained this information from the Michigan Court of Appeals' website,

coa.courts.mi.gov/, and from Westlaw's website, www.westlaw.com. Public records and

government documents, including those available from reliable sources on the Internet, are

subject to judicial notice. See United States ex. rel. Dingle v. BioPort Corp., 270 F. Supp. 2d

968, 972 (W.D. Mich. 2003). A federal district court is also permitted to take judicial notice of

another court's website. See, e.g., Graham v. Smith, 292 F. Supp. 2d 153, 155 n.2 (D. Me. 2003).

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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 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 prisoner is whether the 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 a 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 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.

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28 U.S.C. § 2244(d)(1).

Absent equitable tolling, a petition for a 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).

The statute of limitations began to run in this case when Petitioner’s conviction “became

final by the conclusion of direct review or the expiration of the time for seeking such review.” 28

U.S.C. § 2244(d)(1)(A). None of the other potential starting points apply to this case. Petitioner does

not assert that his claims are based on previously unavailable facts or law, nor does he allege that

the state created an external impediment preventing him from filing his petition. See §§

2244(d)(1)(B)-(D).

“Direct review,” for purposes of subsection 2244(d)(1)(A), concludes when the availability

of direct appeal to the state courts and to the United States Supreme Court has been exhausted.

Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The Michigan Court of Appeals affirmed

Petitioner’s conviction on March 27, 2007. Petitioner did not timely appeal this decision to the

Michigan Supreme Court. Therefore, his conviction became final for purposes of subsection

2244(d)(1)(A) on May 22, 2007, when the time for seeking leave to appeal in the Michigan Supreme

Court expired. See Redmond v. Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003) (holding that

conviction becomes final when the 56-day time period for filing a delayed application for leave to

appeal in the Michigan Supreme Court expires); Brown v. McKee, 232 F. Supp. 2d 761, 765 (E. D.

Mich. 2002) (same); Erwin v. Elo, 130 F. Supp. 2d 887, 889 (E.D. Mich. 2001) (same). The

limitations period expired one year later on May 23, 2008.

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Petitioner filed state post-conviction review proceedings in 2010 and 2012. These

proceedings normally would toll the limitations period under subsection 2244(d)(2), but by the time

they were filed the statute of limitations had already expired. A state court post-conviction motion

that is filed following the expiration of the limitations period cannot toll that period pursuant to 28

U.S.C. § 2244(d)(2) because there is no period remaining to be tolled. See Jurado v. Burt, 337 F.

3d 638, 641 (6th Cir. 2003); see also Hargrove v. Brigano, 300 F. 3d 717, 718, n. 1 (6th Cir. 2002).

The petition is therefore time barred unless Petitioner can demonstrate grounds for equitable

tolling. Holland v. Florida, 561 U.S. 631, 649 (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. 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 claims that he is entitled to equitable tolling because he is actually innocent of the

facts relied upon by the state trial court in calculating his sentence. This is not the type of actual

innocence claim that can justify equitable tolling of the statute of limitations. The concept of being

actually innocent of a sentence arises only in the death penalty context. See Sawyer v. Whitley, 505

U.S. 333 (1992). The concept has no application to noncapital sentences such as Petitioner’s. Dretke

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v. Haley, 541 U.S. 386, 393 (2004); Gibbs v. United States, 655 F.3d 473, 477-79 (6th Cir. 2011)

(“[Actual innocence of sentence] exception does not permit prisoners to raise claims about

guidelines calculations in a collateral attack.”). Therefore, because Petitioner’s application for

habeas relief was filed after the expiration of the one-year limitations period, and because he has

failed to demonstrate grounds for equitable 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 debatable the court’s procedural ruling that the

petition is untimely. The Court will also deny Petitioner permission to proceed on appeal in forma

pauperis because any appeal would be frivolous. 

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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 and permission to proceed

on appeal in forma pauperis is DENIED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: August 31, 2015

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or party

of record herein by electronic means or first class U.S. mail on August 31, 2015.

s/Deborah Tofil 

Case Manager

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