UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH RIDEAUX, 

 

Petitioner, Case No. 2:15-cv-10774

 Hon. Denise Page Hood

v.

MITCH PERRY, 

Respondent.

_______________________________________/

OPINION AND ORDER 1) DENYING PETITIONER’S “MOTION TO

SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR

UNTIMELINESS,” [Dkt. 5], 2) SUMMARILY DISMISSING PETITION

FOR WRIT OF HABEAS CORPUS [Dkt. 1], 3) DENYING A CERTIFICATE

OF APPEALABILITY, AND 4) DENYING LEAVE TO APPEAL IN

FORMA PAUPERIS

This is a habeas case brought by a state prisoner pursuant to 28 U.S.C. § 2254.

Petitioner Kenneth Rideaux was convicted in the Oakland Circuit Court after a jury

trial of two counts of third-degree criminal sexual conduct. MICH. COMP. LAWS §

750.520d(1)(b). He was sentenced as a fourth-time habitual offender to concurrent

terms of 10-to-30 years in prison. The petition enumerates eighteen different grounds

for relief. 

Upon initial review of the petition, it appeared to the Court that review was

barred by the statute of limitations under 28 U.S.C. §2244(d). The Court ordered

Petitioner to show cause why the petition should not be dismissed as untimely, and

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Petitioner has filed a response. Petitioner acknowledges that his petition was filed after

expiration of the one-year statute of limitations, but he asserts that he is entitled to

equitable tolling because he is actually innocent. For the reasons stated below, the

petition is dismissed for failure to comply with the statute of limitations. Petitioner’s

certificate of appealability and permission to appeal in forma pauperis are denied.

I. Background

After Petitioner was convicted of the above offenses, he filed a direct appeal in

the Michigan Court of Appeals. Petitioner’s appeal raised four claims: 1) insufficient

evidence was presented at trial to sustain Petitioner’s convictions, 2) Petitioner’s

sentence violates the Eighth Amendment, 3) the trial court erred in sentencing

Petitioner as a habitual offender, and 4) the trial court should have departed

downwards from the sentencing guideline range. The Michigan Court of Appeals

affirmed. ECF 1-2, pg ID 101; People v. Rideaux, No. 281533 (Mich. Ct. App. March

12, 2009). Petitioner then filed an application for leave to appeal in the Michigan

Supreme Court, but it was denied by standard order on September 11, 2009. ECF 1-2,

pg ID 104; People v. Rideaux, No. 138764 (Mich. Sup. Ct. Sept. 11, 2009).

According to the petition, Petitioner filed a motion for relief from judgment in

the trial court on July 21, 2010. The motion raised seventeen claims. The trial court

denied the motion in an opinion and order dated July 20, 2012. ECF 1-2, pg ID 105-

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108. Petitioner appealed this decision through the state appellate courts. His

application for leave to appeal was denied by the Michigan Court of Appeals on

October 8, 2013. ECF 1-2, pg ID 109; People v. Rideaux, No. 314384 (Mich. Ct. App.

Oct. 8, 2013). The Michigan Supreme Court then denied relief on May 27, 2014. ECF

1-2, pg ID 111; People v. Rideaux, No. 148137 (Mich. Sup. Ct. May 27, 2014).

Petitioner signed and dated his federal habeas petition on February 24, 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 prisoneris whether 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

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one-year statute of limitations applies to an application for 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.

28 U.S.C. § 2244(d)(1).

AEDPA’s one-year limitations period is tolled when a prisoner seeks collateral

review of his conviction in state court. Wall v. Kholi, 131 S. Ct. 1278, 1282, 179 L.

Ed. 2d 252 (2011)(“the 1-year limitation period is tolled during the pendency of ‘a

properly filed application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim.’ § 2244(d)(2)”). Absent equitable tolling,

a petition for writ of habeas corpus must be dismissed where it has not been filed

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before the limitations period expires. See 28 U.S.C. § 2244(d)(1); Allen v. Yukins, 366

F.3d 396, 401 (6th Cir. 2004).

Petitioner does not contest in his reply to the show cause order that the petition

was untimely filed under the statute. The limitations period began to run 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). Petitioner

does not allege that any of the other potential starting points apply. The Michigan

Supreme Court denied his application for leave to appeal September 11, 2009, and the

expiration of time for seeking direct review ceased 90 days later on December 10,

2009, when the time expired for Petitioner to file a petition for writ of certiorari in the

United States Supreme Court. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009).

The limitations period continued to run until Petitioner filed a motion for relief from

judgment with the trial court on July 21, 2010. See 28 U.S.C. § 2244(d)(2). That is,

222 days ran on the limitations period between the expiration of time for seeking

direct review and the date on which the limitations period began to toll under §

2244(d)(2). 

The limitations period tolled under § 2244(d)(2) from the time Petitioner filed

his state post-conviction review proceeding until the date relief was denied by the

Michigan Supreme Court on May 27, 2014. See Carey v. Saffold, 536 U.S. 214,

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219-20 (2002). It should be noted that the state court proceeding merely tolled the

limitations period, it did not restart the one-year clock. See McMurray v. Scutt, 136

F. App’x 815, 817 (6th Cir. 2005) (citing Vroman v. Brigano, 346 F.3d 598, 602 (6th

Cir. 2003)). The limitations period starting running again the day after the Michigan

Supreme Court denied relief, and it continued running until Petitioner commenced the

present action when his counsel filed it with the Court on February 24, 2015. This

second period in which the limitations period ran spanned 272 days. 

Adding the two periods in which the statute of limitations ran together, 494

days–or well more than one year–passed before Petitioner commenced this action. The

petition is therefore untimely under the terms of the statute. 

Petitioner’s response to the show cause order asserts that the petition is

nonetheless entitled to review because Petitioner is actually innocent. 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, 185 L. Ed. 2d 1019 (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

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U.S., at 329). 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 response to the show cause order asserts that his actual innocence

claim is supported by the evidence attached to his petition. This evidence amounts to

written allegations about what Petitioner believes defense witnesses would have

testified to at trial if they had been called at trial. In brief, Petitioner lists seven

defense witnesses who he claims would have testified they heard complainant state

she falsely accused Petitioner. ECF 1-1, Page ID 96-97. Petitioner does not provide

any purported statements or affidavits from the witnesses themselves. Petitioner has

also filed copies of the hospital records and police reports containing statements made

by the complainant, which he claims are inconsistent with her trial testimony.

 

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

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he has presented no new, reliable evidence to establish that he was actually innocent

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

Petitioner’s speculation about what alleged defense witnesses’ testimonies would have

been– which is not supported by the statements or affidavits of the witnesses

themselves– falls far short of demonstrating actual innocence. The Court has

examined the various statements by the complainant attached to the petition. The

statements consistently describe the circumstances of the sexual assault.

Inconsistencies– such as whether Petitioner threatened to cut the complainant’s head

off or choke her to death– do not demonstrate Petitioner’s innocence. See Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (It is “the

responsibility of the trier of fact. . . to resolve conflicts in the testimony.”). Petitioner

has not made a tenable actual-innocence gateway plea, and therefore he has not

demonstrated grounds to equitably toll the statute of limitations.

Accordingly, the petition will be dismissed for failure to comply with §

2244(d).

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

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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

find the court’s procedural ruling that the petition is untimely debatable. The Court

will also deny Petitioner permission to appeal in forma pauperis because any appeal

would be frivolous.

V. Order

Accordingly, 

IT IS ORDERED that the petition for a writ of habeas corpus [Docket No. 1,

filed March 2, 2015] is DENIED and the matter is DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that Petitioner’s Motion to show cause why

case should not be dismissed for untimeliness [Docket No. 5, filed June 3, 2015] is

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DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that permission to appeal in forma pauperis is

DENIED.

IT IS FURTHER ORDERED that a copy of this opinion and order by served

upon the Michigan Attorney General, Appellate Division.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: July 31, 2015

I hereby certify that a copy of the foregoing document was served upon counsel

of record on July 31, 2015, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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