UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DOMINIQUE JOHNSON,

 

Petitioner, Case No. 2:15-cv-11154

 Honorable Nancy G. Edmunds

v.

SHAWN BREWER,

Respondent.

_______________________________________/

OPINION AND ORDER 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 March 10, 2011, Petitioner

was convicted in the Wayne Circuit Court of armed robbery, carjacking, and commission of a felony

with a firearm. He was sentenced to two concurrent terms of 5-to-25 years imprisonment, plus a

consecutive 2-year term for the firearm conviction. The petition alleges that 1) insufficient evidence

was presented at trial to identify Petitioner as the perpetrator of the crime, 2) the trial court

erroneously failed to suppress Petitioner’s statement to police which was taken outside the presence

of his guardian, and 3) Petitioner’s statement to police was otherwise involuntary. 

Petitioner admits that the petition was filed after expiration of the one-year statute of

limitations applicable to habeas actions under 28 U.S.C. § 224(d). Petitioner asserts that he is

entitled to equitably tolling because he did not receive a copy of the state court decision ending his

direct appeal, and therefore he did not know that the statute of limitations began running. Because

Petitioner waited two years to inquire about the status of his state court appeal, however, the Court

finds that Petitioner has not demonstrated entitlement to equitable tolling, and it will summarily

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dismiss the petition. The Court will also deny Petitioner a certificate of appealability and deny

permission to appeal in forma pauperis. 

I. Background

According to the allegations in the petition, and confirmed by the state court public records

available online, Petitioner’s state court appeal concluded on September 30, 2013, when the

Michigan Supreme Court denied Petitioner’s application for leave to appeal. People v. Johnson, No.

146408, 843 N.W.2d 125 (Mich. Sup. Ct., Sept. 30, 2013). Petitioner does not allege that he filed

a state post-conviction proceeding. Petitioner’s undated and unsigned habeas petition was filed in

this Court on March 26, 2015.

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 writ of habeas corpus by a person in custody pursuant to a

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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.

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).

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). “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 Supreme Court denied

Petitioner’s application for leave to appeal on September 30, 2013. The time for filing a petition for

a writ of certiorari in the United States Supreme Court expired ninety days later, on Monday,

December 30, 2013. The limitations period began running the next day, and it expired one year later,

on December 31, 2014 - about three months before he filed the instant petition.

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

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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. 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 attaches an affidavit from a fellow prisoner who attempts to explain the delay in

the filing of the petition. Vernon Johnson states in the affidavit that on February 1, 2015, Petitioner

contacted him for assistance in gathering information regarding the status of his state appeal. Mr.

Johnson states that on February 6, 2015, he used LEXIS at the prison law library to ascertain that

the Michigan Supreme Court had denied leave to appeal on September 30, 2013. Mr. Johnson states

that Petitioner responded with disbelief because he had not received a copy the decision and not had

been called by the mail room for receipt of legal mail as required by prison policy. 

Assuming that Petitioner did not receive notice of the state supreme court’s September 30,

2013, decision, Petitioner is nevertheless not entitled to equitable tolling. A lengthy delay between

the issuance of an order by the state court and an inmate's notification of it might provide a basis for

equitable tolling. In such a case, however, the petitioner has the burden to establish (1) that he

received delayed notice of the denial of his state petition or application (extraordinary circumstance),

(2) that he diligently attempted to ascertain the status of the state court's order (diligence), and (3)

that the delay prevented him from filing a timely federal habeas petition (causation). Miller v.

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Collins, 305 F.3d 491, 495, 2002 FED App. 0333P (6th Cir. 2002).

Here, Petitioner filed his application for leave to appeal in the Michigan Court of Appeals

on March 26, 2012. The Michigan Court of Appeals affirmed Petitioner’s conviction about seven

months later on November 1, 2012. People v. Johnson, No. 309337 (Mich. Ct. App. Nov. 1, 2012).

Petitioner then filed a pro se application for leave to appeal on December 21, 2012, and it was

denied about nine months later on September 30, 2013.1 Petitioner did not inquire about the status

of his appeal in the Michigan Supreme Court, however, until February 1, 2015, a period of over two

years after he filed the appeal. Because Petitioner waited over two years to enquire about the status

of his state court appeal, he did not act with sufficient diligence to demonstrate entitlement to

equitable tolling. See, e.g., LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (habeas petitioner

failed to demonstrate reasonable diligence in allowing 21 months to lapse from the time he filed his

state court petition until he inquired as to its status), Cousin v. Lensing, 310 F.3d 843, 848–49 (5th

Cir. 2002) (habeas petitioner's counsel failed to act diligently in waiting almost two years to

investigate the status of petitioner's case), and Drew v. Department of Corrections, 297 F.3d 1278,

1287–88 (11th Cir. 2002) (where habeas petitioner waits 16 months before taking any steps to learn

about the status of his case, equitable tolling is not warranted); c.f. Miller, 305 F.3d at 496 (“it was

not unreasonable that Miller waited nine months before asking the court to rule on his application.”).

The Sixth Circuit found that the Petitioner in Miller acted with sufficient diligence given the length

of time the state court took to adjudicate his prior appeal. Here, however, the Michigan Court of

Appeals decided his case in about seven months. Given this reference point, it was not reasonable

1

The date of these filings are available on the state court website, of which this Court may

take judicial notice. Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004). 

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for Petitioner to wait two years to inquire about his appeal to the Michigan Supreme Court. Even

assuming an error in transmitting the state court’s order to him, Petitioner was required to act with

due diligence to protect any right he had to federal habeas review and he did not. Accordingly,

Petitioner is not entitled to equitable tolling. 

Petitioner makes the alternative argument that the state court’s failure to mail a copy of its

decision to him constituted an impediment to filing his federal petition that acted to delay the

starting point of the limitations period under 28 U.S.C. §2244(d)(1)(B). This starting point for the

limitations period, however, is limited to impediments created by government action in violation of

the Constitution or laws of the United States. Egerton v. Cockrell, 334 F.3d 433, 438–39 (5th Cir.

2003). Petitioner has not alleged that the untimely receipt of his state court decision, in itself,

amounts to a constitutional violation. Nor is the Court aware of any case so holding. Moreover,

though §2244(d)(1)(B) does not contain an explicit diligence requirement, Petitioner’s failure to

inquire about the statute of his state court appeal did not act to forever suspend the start of the

limitations period. See, e.g., Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

Accordingly, the Court finds that the petition was filed after expiration of the statute of

limitations, and Petitioner has failed to demonstrate entitlement to equitable tolling. The case will

be 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

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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 also deny Petitioner permission to proceed on appeal in forma

pauperis 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 and permission to proceed

on appeal in forma pauperis is DENIED.

s/ Nancy G. Edmunds 

Honorable Nancy G. Edmunds

United States District Judge 

Dated: June 11, 2015

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