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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Edward Garland, 

 Petitioner, Case No. 5:15-cv-11116 

 Hon. Judith E. Levy 

 Mag. Judge David R. Grand 

 

Duncan MacLaren, 

 

 Respondent. 

___________________________/

OPINION AND ORDER GRANTING RESPONDENT’S 

MOTION FOR SUMMARY JUDGMENT [7] 

Petitioner Edward Garland, confined at the Kinross Correctional 

Facility in Kincheloe, 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 and sentence for first-degree home 

invasion, M.C.L. § 750.110a(2); two counts of first-degree criminal 

sexual conduct, M.C.L. § 750.520b(1)(c); and two counts of third-degree 

criminal sexual conduct, M.C.L. § 750.520d(1)(c). 

Respondent filed a motion for summary judgment on the ground 

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

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limitations contained in the Antiterrorism and Effective Death Penalty 

Act (“AEDPA”), 28 U.S.C. § 2244 (d)(1). (Dkt. 7.) Petitioner has not 

filed a response to the motion. 

For the reasons stated below, the respondent’s motion for 

summary judgment is granted and the petition is dismissed as timebarred under AEDPA. The Court declines to issue petitioner a 

certificate of appealability and denies petitioner leave to appeal in 

forma pauperis. 

I. BACKGROUND 

On October 25, 2007, petitioner was found guilty following a jury 

trial in the Livingston County Circuit Court. (Dkt. 7-3.) On December 

20, 2007, he was sentenced to a minimum of fifteen years in prison, and 

on January 9, 2008, the final judgment was entered in his case. (Id.) 

On August 18, 2009, the Michigan Court of Appeals affirmed his 

conviction, (Dkt. 8-15), and on June 23, 2010, the Michigan Supreme 

Court denied petitioner’s leave to appeal. People v. Garland, 486 Mich. 

996 (2010). Petitioner did not seek a writ of certiorari from the 

Supreme Court. 

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Over three years later, on December 9, 2013, petitioner filed a 

post-conviction motion for relief from judgment with the state trial 

court, pursuant to M.C.R. 6.500 et seq. (Dkt. 8-17.) On January 28, 

2014, the Honorable David J. Reader, Circuit Judge for Livingston 

County, denied plaintiff’s motion for relief. (Dkt. 8-18.) On June 27, 

2014, the Michigan Court of Appeals denied a rehearing on the grounds 

that petitioner had failed to meet the burden for establishing relief 

under M.C.R. 6.508(D). (Dkt. 8-19.) And on February 3, 2015, the 

Michigan Supreme Court denied petitioner’s application for leave to 

appeal. People v. Garland, 497 Mich. 953 (2015). 

Petitioner’s habeas application is signed and dated March 16, 

2015, and was filed with this Court on March 23, 2015.1

II. ANALYSIS 

Respondent’s counsel argues in his motion for summary judgment 

that petitioner’s petition should be barred from federal habeas review 

by the one-year statute of limitations imposed by AEDPA. (Dkt. 7 at 5.) 

 

 1 The Court applies the prison mailbox rule and deems the petition to have been 

filed on March 16, 2015. See Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999). 

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A motion for summary judgment should be granted if the movant shows 

“that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(c)(2). The summary judgment rule applies to habeas proceedings. 

See, e.g., Souter v. Jones, 395 F.3d 577, 584 (6th Cir. 2005); Redmond v. 

Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003). In the statute-oflimitations context, “dismissal is appropriate only if a complaint clearly 

shows the claim is out of time.” Harris v. New York, 186 F. 3d 243, 250 

(2nd Cir. 1999); See also Cooey v. Strickland, 479 F. 3d 412, 415-16 (6th 

Cir. 2007). 

AEDPA applies to all habeas petitions filed after the Act’s 

effective date, April 24, 1996, and imposes a one-year limitations period 

for habeas petitions. 28 U.S.C. § 2244(d)(1). Title 28 of the United 

States Code, sections 2244(d)(1)(A) through (D) state in pertinent part: 

(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 

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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 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. 

A habeas petition filed outside the time period prescribed by this section 

is subject to dismissal. See Isham v. Randle, 226 F. 3d 691, 694-95 (6th 

Cir. 2000); see also Lee v. Brunsman, 474 Fed. App’x. 439, 441 (6th Cir. 

2012). 

After the Michigan Supreme Court denied petitioner’s application 

for leave to appeal on June 23, 2010, petitioner had ninety days to 

petition the United States Supreme Court for a writ of certiorari. 

Supreme Ct. R. 13. Once this opportunity to appeal to the Supreme 

Court expired, the AEDPA statute of limitations begins to run on the 

next day. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Because 

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petitioner did not seek a writ of certiorari with the United States 

Supreme Court, petitioner’s judgment became final, for the purpose of 

commencing the running of the one year limitations period, on 

September 21, 2010, which is ninety days after the Michigan Supreme 

Court denial of leave to appeal. The one-year limitations period 

commenced September 22, 2010. Absent equitable or statutory tolling, 

petitioner had until September 22, 2011 to timely file his habeas 

petition. Instead, he filed his petition on March 23, 2015. 

Petitioner’s motion in state court for post-conviction relief from 

judgment, filed on December 9, 2013, does not cure the untimeliness of 

his federal habeas petition. Although 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 towards the period of limitations contained in the 

statute, that collateral appeal must nonetheless be filed within the 

statute-of-limitations period. 28 U.S.C. § 2244(d)(2); Scarber v. Palmer, 

808 F.3d 1093 (6th Cir. 2015) (“the limitation period commences only 

after ‘the time for seeking’ direct review has expired”); Hargrove v. 

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Brigano, 300 F. 3d 717, 718 n. 1 (6th Cir. 2002) (the limitation period 

does not restart after it has already run). 

And the mere fact that petitioner raised a claim of ineffective 

assistance of appellate counsel in his post-conviction motion would not 

restart the one-year limitations process anew. A motion for state postconviction review alleging ineffective assistance of appellate counsel 

tolls, but does not restart, the AEDPA limitations period. Allen v. 

Yukins, 366 F. 3d 396, 401 (6th Cir. 2004) (citing McClendon v. 

Sherman, 329 F. 3d 490, 493 (6th Cir. 2003)). The limitations period 

had already expired by the time the post-conviction motion was filed, 

and the fact that petitioner alleged ineffective assistance of appellate 

counsel in his collateral challenge to his conviction does not restart or 

otherwise alter the limitations period. 

The AEDPA statute of limitations, 28 U.S.C. § 2244(d), “is subject 

to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 

631, 645 (2010). A habeas petitioner is entitled to equitable tolling 

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

and (2) that some extraordinary circumstance stood in his way’ and 

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prevented timely filing” of the habeas petition. Id. at 649 (quoting Pace 

v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “[T]he doctrine of equitable 

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

F. 3d 781, 784 (6th Cir. 2010). And the burden is on a habeas petitioner 

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

limitations period. Id. Where, as here, a petitioner has failed to present 

an argument that warrants equitable tolling, he is not entitled to it. 

Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005) (equitable tolling 

not available when the record provides no indication of any factors to be 

considered); Giles v. Wolfenbarger, 239 F. App’x. 145, 147 (6th Cir. 

2007) (denial of equitable tolling upheld because petitioner provided no 

arguments regarding the factors). 

A petition filed after the expiration of the one-year statute of 

limitations may nonetheless be considered upon a credible showing of 

actual innocence, under the standard enunciated in Schlup v. Delo, 513 

U.S. 298 (1995). McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). 

The Supreme Court has cautioned that “tenable actual-innocence 

gateway pleas are rare[.]” Id. “[A] petitioner does not meet the 

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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 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 does not qualify for an actual-innocence tolling 

exception, because petitioner has presented no new, reliable evidence to 

establish that he is actually innocent of the crimes charged. See Ross v. 

Berghuis, 417 F. 3d 552, 556 (6th Cir. 2005). Although petitioner 

claimed in his state post-conviction motion for relief from judgment that 

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he was actually innocent, his claim appears to be based upon asserted 

procedural flaws at trial—related to the complainant not having 

testified—and the ineffective assistance of trial counsel. (Dkt. 7-2 at 14-

15.) “To raise the claim [of actual innocence], a petitioner must present 

new reliable evidence—whether it be exculpatory scientific evidence, 

trustworthy eyewitness accounts, or critical physical evidence—that 

was not presented at trial.” Maze v. Lester, 564 F. App’x 172, 180 (6th 

Cir. 2014) (quoting Bell v. Howes, 703 F.3d 848, 854 (6th Cir. 2012)). 

No such evidence or argument has been presented. 

III. CONCLUSION 

The petition for writ of habeas corpus has been filed well after the 

expiration of the AEDPA statute of limitations, and no grounds for 

equitable tolling are present to permit consideration despite the time 

bar. Therefore, respondent’s motion is GRANTED and the petition is 

DISMISSED with prejudice. 

Furthermore, the petitioner is DENIED a certificate of 

appealability, because petitioner has failed to make “a substantial 

showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). 

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“The district court must issue or deny a certificate of appealability when 

it enters a final order adverse to the applicant.” Rules Governing § 

2254 Cases, Rule 11(a). 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). However, 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 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 Court declines to issue petitioner a certificate of appealability, 

because reasonable jurists would not find it debatable whether the 

Court was correct in determining that petitioner had filed his habeas 

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petition outside of the one-year limitations period. Slack v. McDaniel, 

529 U.S. 473, 484 (2000). The Court also DENIES petitioner leave to 

appeal in forma pauperis, because any appeal would be frivolous. See

28 U.S.C. § 1915(a). 

IT IS SO ORDERED. 

Dated: February 4, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on February 4, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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