UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAJUAN BROWN,1

 

Petitioner, Case No. 2:15-cv-10638

 Hon. George Caram Steeh

SHAWN BREWER,

Respondent.

_____________________________________/

OPINION AND ORDER 1) GRANTING RESPONDENT’S MOTION

FOR SUMMARY JUDGMENT [Dkt. 6], 2) DISMISSING PETITION FOR

WRIT OF HABEAS CORPUS, AND 3) DENYING CERTIFICATE OF

APPEALABILITY AND PERMISSION TO APPEAL IN FORMA PAUPERIS

LaJuan Brown, (“Petitioner”), a Michigan Department of Corrections prisoner, filed

this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges

Brown’s Wayne Circuit Court conviction for armed robbery, MICH. COMP. LAWS § 750.529;

assault with intent to rob while armed, MICH. COMP. LAWS § 750.89; felon in possession of

a firearm, MICH. COMP. LAWS § 750.224f; possession of a firearm during the commission

of a felony, MICH.COMP. LAWS § 750.227b; and carrying a concealed weapon. MICH.COMP.

LAWS § 750.227. The petition raises nine claims: 1) the prosecutor committed misconduct

by his mischaracterization of the evidence and burden-shifting argument, 2) the trial court

erred in failing to give a mere-presence jury instruction, 3) Petitioner was denied his right

to counsel by being assigned counsel on the day of the preliminary examination, 4)

Petitioner was denied his right to a public trial by the closure of the courtroom during jury

1

The Court amends the caption to reflect the correct spelling of Petitioner’s first name which was

misspelled in the petition. 

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selection, 5) Petitioner’s conviction was obtained through the knowing use of perjured

testimony, 6) the prosecutor failed to list exculpatory witnesses on its witness list, 7) the

destruction of the transcript from Petitioner’s first trial prevented him from challenging the

sufficiency of the evidence presented at that proceeding, 8) Petitioner was denied the

effective assistance of counsel at trial, and 9) Petitioner was denied the effective assistance

of appellate counsel.

This matter is before the Court on Respondent’s motion for summary judgment, in

which he asks the Court to dismiss the petition as untimely. Petitioner has filed a response

to the motion, asserting that Respondent’s is incorrect as to the date he filed the instant

action. 

The Court will grant Respondent’s motion for summary judgment and dismiss the

case because Petitioner failed to comply with the one-year limitations period under 28

U.S.C. §2244(d). The Court will also deny Petitioner a certificate of appealability and

permission to proceed on appeal in forma pauperis. 

I. Background

Following his conviction and sentence, Petitioner filed an appeal of right with the

Michigan Court of Appeals. His appellate brief raised what now form his first two habeas

claims. On February 15, 2011, the Michigan Court of Appeals issued an unpublished

opinion affirming Petitioner’s convictions. People v. Brown, No. 295867 (Mich. Ct. App. Feb.

15, 2011).

Petitioner then filed an application for leave to appeal in the Michigan Supreme

Court. On September 6, 2011, the Michigan Supreme Court denied Petitioner’s application

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by standard order. People v. Brown, 802 N.W.2d 64 (Mich. 2011) (Table). Petitioner did not

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

 On June 26, 2012, Petitioner filed a motion for relief from judgment in the trial court,

raising what now form his third through ninth habeas claims. The trial court denied this

motion by order dated November 15, 2012.

On November 11, 2013, Petitioner filed a delayed application for leave to appeal in

the Michigan Court of Appeals. On December 4, 2013, the Michigan Court of Appeals

rejected Petitioner’s application as untimely filed. The court stated: “The delayed application

for leave to appeal from the November 15, 2012 order denying relief from judgment is

DISMISSED because appellant failed to file the application withing the time period required

by MCR 7.205(F)(3). Further, the exceptions in MCR 7.205(F)(4) are inapplicable.” People

v. Brown, No. 319146, (Mich. Ct. App. Dec. 3, 2013). 

Petitioner applied for leave to appeal to the Michigan Supreme Court. On July 29,

2014, the Michigan Supreme Court denied Petitioner’s application by standard order.

People v. Brown, 849 N.W.2d 367 (Mich. 2014) (Table). 

Petitioner did not date his habeas petition. It was filed in this Court on February 18,

2015, and was postmarked on February 9, 2015. Petitioner’s response to Respondent’s

motion for summary judgment states that he handed his petition over to a corrections

officer for mailing on January 7, 2015, an allegation that will be accepted as true for

purposes of this motion. 

II. Discussion

Summary judgment is proper where there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. In considering a motion for

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summary judgment, the Court will construe all facts in a light most favorable to the

non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

There are no genuine issues of material fact when “the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party.” Id. If the movant carries its

burden of showing an absence of evidence to support a claim, then the nonmovant must

demonstrate by affidavits, depositions, answers to interrogatories and admissions that a

genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-325

(1986). This standard of review may be applied to habeas proceedings. See Redmond v.

Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a

one-year period of limitation for a habeas petition filed by a state prisoner seeking habeas

relief from a state court judgment. 28 U.S.C. § 2244(d)(1). The limitation runs from one of

four specified dates, usually either the day when the judgment becomes final by the

conclusion of direct review or the day when the time for seeking such review expires. 28

U.S.C. § 2244(d)(1)(A). The limitation period is tolled while “a properly filed application for

State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).

§ 2244(d)(1)(A) provides the operative date from which the one-year limitations

period is measured in this case. Neither party asserts that a different starting point applies.

Under this provision, the one-year limitations period runs from “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. § 2244(d)(1)(A). Petitioner pursued a direct appeal of his

conviction in the Michigan Court of Appeals and the Michigan Supreme Court. The

Michigan Supreme Court denied his application on September 6, 2011. Petitioner did not

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petition for certiorari to the United States Supreme Court. The one-year limitations period,

however, did not begin to run until the ninety-day period in which Petitioner could have

sought review in the United States Supreme Court had expired. See Lawrence v. Florida,

549 U.S. 327, 332-33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The

ninety-day period expired on December 5, 2011, and the period of limitations began

running the next day, December 6, 2011. 

Petitioner had one year from that date to file his habeas application or to take some

action tolling the running of the period of limitations. Petitioner filed his motion for relief from

judgment on June 26, 2012, which tolled the running of the statute of limitations under §

2244(d)(2). At this point, 204 days had run on the statute of limitations. Therefore,

Petitioner had 162 days–a total of 366 days because of a leap year–left to file his habeas

corpus petition once the statute of limitations resumed running. 

The trial court denied his motion for relief from judgment on November 15, 2012.

Under the Michigan Court Rules in effect at the time, Petitioner had 180 days to appeal this

decision, or until 

May 14, 2013. See Mich. Ct. R. 7.205(F)(3) (2013). Petitioner waited until November 11,

2013, however, to attempt to file a delayed application for leave to appeal. The Michigan

Court of Appeals explicitly dismissed the appeal because Petitioner’s application was

untimely. Petitioner’s subsequent appeal to the Michigan Supreme Court was denied by

standard order. 

Petitioner’s delayed application for leave to appeal from the denial of his motion for

relief from judgment was not “properly filed” as required by § 2244(d)(2) to toll the

limitations period. “Properly filed” means that the document’s “delivery and acceptance are

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in compliance with the applicable laws and rules governing filings. These usually prescribe,

for example, the form of the document, the time limits upon its delivery, the court and office

in which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8

(2000). A state petition for post-conviction relief that is denied as untimely is not “properly

filed” for purposes of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005); Vroman v.

Brigano, 346 F.3d 598, 604 (6th Cir. 2003); Israfil v. Russell, 276 F.3d 768, 771, 18 Fed.

Appx. 278 (6th Cir. 2001). Because Petitioner’s delayed application was dismissed as

untimely filed, its filing did not continue the period of statutory tolling under § 2244(d)(2). 

Still worse for Petitioner, he is not entitled to statutory tolling for the 180 day period

in which he could have, but did not, appeal the trial court’s denial of his motion for relief

from judgment. See Carey v. Saffold, 536 U.S. 214, 225-226 (2002) (if state court explicitly

rules that period between the time of a lower state court reached an adverse decision and

the date the prisoner filed an appeal is untimely, “that would be the end of the matter.”);

Evans v. Chavis, 546 U.S. 189, 197 (2006) (citing Saffold); Ross v. McKee, 465 F. App’x

469, 473 (6th Cir. 2012) (period of limitations stopped tolling day after Michigan Court of

Appeals issued decision where habeas petitioner’s application for leave to appeal was

untimely filed in Michigan Supreme Court). 

The fact that the Michigan Supreme Court did not give any explicit reason for

denying Petitioner’s subsequent application for leave to appeal does not alter the result.

Carey, 536 U.S. at 226 (“Given the variety of reasons why the California Supreme Court

may have included the words ‘on the merits,’ those words cannot by themselves indicate

that the petition was timely.”). Petitioner made no argument in his appeal to the Michigan

Supreme Court regarding the court of appeals’ finding that his earlier application was

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untimely. There is therefore no reason to conclude that the state supreme court overturned

the court of appeals’ finding that Petitioner’s application filed in that court was untimely

under Rule 7.205. 

Accordingly, the period of limitations stopped tolling and began running the day after

the trial court issued its decision denying Petitioner’s motion for relief from judgment, or on

November 16, 2012. Accepting as true Petitioner’s assertion that he handed his habeas

petition for filing with this Court on January 7, 2015, over two more years passed on the

limitations period between the trial court’s decision and the commencement of this action,

rendering the habeas petition untimely filed. 

The petition is therefore time-barred unless Petition can demonstrate grounds for

equitable tolling. Holland v. Florida, 560 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. (internal

quotation marks omitted). The party seeking equitable tolling bears the burden of proving

that he is entitled to it. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010).

Petitioner does not offer any argument that he is entitled to equitable tolling. The

most he could say is that he was unaware that the failure to timely file an application for

leave to appeal in the Michigan Court of Appeals would have such a disastrous effect on

his ability to timely file a federal habeas petition. But the fact that Petitioner is untrained in

the law or may have been unaware of the statute of limitations does not warrant tolling. See

Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004) (ignorance of the law does not justify

tolling); Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002) (the law is “replete

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with instances which firmly establish that ignorance of the law, despite a litigant’s pro se

status, is no excuse” for failure to follow legal requirements). 

The same could be said for any argument that the ineffective assistance of

Petitioner’s appellate counsel was the root cause of his failure to present his habeas claims

to the state courts. Petitioner had no right to counsel during his state collateral proceeding,

and it was his own failure to timely appeal the trial court’s decision (indeed the application

was late by about six months) that rendered his federal petition untimely. The Court notes

again that Petitioner’s application for leave to appeal filed in the Michigan Supreme Court

did not attempt to address the court of appeals determination of untimeliness. Petitioner

therefore has failed to demonstrate that he is entitled to equitable tolling under Holland.

The one year statute of limitations may be equitably tolled based 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 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). 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 enunciated

in Shlup, because Petitioner has presented no new, reliable evidence in his petition or

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response to Respondent’s motion to establish that he was actually innocent of the crimes

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

Accordingly, the Court will grant Respondent’s motion for summary disposition and

dismiss the petition. 

III. 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 would not debate the Court’s procedural ruling. A certificate of appealability

will therefore be denied. Furthermore, leave to appeal in forma pauperis is denied because

any appeal of this order could not be taken in good faith because it would be frivolous. 18

U.S.C. § 1915(a)(3).

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IV. Order

For the foregoing reasons, IT IS ORDERED that Respondent’s motion for summary

judgment is GRANTED, and the petition is DISMISSED.

IT IS FURTHER ORDERED that a certificate of appealability and permission for

leave to appeal in forma pauperis are DENIED.

Dated: January 4, 2016

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

January 4, 2016, by electronic and/or ordinary mail and also 

on LaJaun Brown #591667, Alger Maximum Correctional

Facility, N6141 Industrial Park Drive, Munising, MI 49862.

s/Barbara Radke

Deputy Clerk

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