NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0470n.06
No. 11-1902
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CHRI STOPHER L . BEY , Petitioner-Appellant,

v.
GREG CAPEL L O, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : DAUGHT REY, MOORE, and STRANCH, Circuit J udg es.

MARTHA CRAI G DAUGH TREY, Circuit J udg e. Petitioner Christopher Be y , a Michig an
state prisoner, appea ls a district court order dismiss ing as untimely the habea s petition that he filed
under 28 U.S.C. § 2244. Be y arg ues that the petition was not untimely beca use he did not discover
the fac ts nece ssary to support it until 2008 – roug hly nine y ear s afte r he pleade d g uilty in state court

to the drug and firea

rms char g es that he nowseeks to have s et aside. Be cause there is no merit to
Be y ’s ar g ument, we AF FI RM the decision of the district cour t.

F ACTUAL AND P ROCEDURAL BACK GR OUND

On M ay 10, 1999, Be y pleade d g uilty in Oakland County (Michig an) C i rcuit C ourt to one count of de livering a contr olled substance w eig hing le ss than 50 g rams, one count of possessing a
firea rm as a felon, and two counts of possessing a short-bar rele d shotgun or rifle. On J une 7, 1999,Bey

v. Capello 11-1902
he was sentenc ed as a habitual offe nder to 1-20 y ear s in prison on the controlled su bstance
conviction and to concur

rent terms of six months on the rema ining convictions, to run consec utively

to the first sentenc e. Be ca u s e Be y d i d not apply for leave to appea l either his convictions or his

sentenc e, the judgme nt of conviction beca me final 21 day s afte r entry in the trial court, on J une 28,
1999. See M.C.R. 7.203(A)( 1) and (B ) (per mitti ng appea l from conviction based on g uilty plea by
leave only ); M.C.R. 7.205(A) (setting 21-day limit on application for

leave to appea l).

Howeve r, sever al months later, on September 16, 1999, Be y filed a motion in the trial court

to withdraw his g uilty plea and vaca te the judgme nt ag ainst him. The m o t i on was denied on September 29, 1999, and Be y did not seek leave to appea l that decision. I nstead, in June 2001, he
filed a motion for relief from judgme nt under Michig an Court Rule 6.502, the Michig an proce dure
for seeking post-conviction relief

. The trial court denied the motion on Aug ust 6, 2001, ruling that
the issues raised in the motion should have been raised in an application to appea l from the judgme nt
of conviction and wer e there fore defa ulted. Be y filed a delay ed application for leave to appea l that
decision on October

9, 2002. On Octobe r 30, 2002, the Michig an Court of Appe als dismissed his application as unt i m el y b eca use it was filed over 12 months afte r the order deny ing relief from judgme nt was enter ed. On April 29, 2003, the Michig an Supreme Court denied Be y leave to appea l
the dismiss al o f his application by the Court of Appea ls beca use it was “not persua ded that the questions presente d should be revie wed by this Court.”

Nothing more happene d for almost five y ear s. Then, on Fe bruar y 28, 2008, Be y fi led a second motion for relief fro m judgme nt in the Oakland County Circuit Court. I n the motion he
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v. Capello 11-1902
arg ued, among other things, that his conviction should be vacated beca use the mag istrate judge who
held the preliminary examination fa iled to sig n the return that Michig an law require s to establish a valid bind-over. See Mich. Comp. L aws §§ 766.13, 766.15. On September 26, 2008, the Oakland County Circuit Court dismiss ed Be y ’s po s t -convic tion motion as barr ed by Michig an Court Rule 6.502(G), which prohibits, with limit ed exceptions, the filing of succe ssive motions for relief from judgme nt.

One of those ex ce p t i o n s p ermit s the filing of a second or subsequent motion for relief for judgme nt if it is “base d on a retroa ctive chang e in la w that occur

red afte r the first motion for relief from judgment or a claim of new evidenc e that was not discovere d befor e the f irst such motion.”
M.C.R. 6.502(G)( 2). Be y claimed that his succe ssive motion satisfied this exception beca use he had

not discovere d the alleg ed flaw in the bind-over return when he filed his first motion for relief from judgme nt. Howeve r, t he court deter mined that the return had, in fac t, been signe d – by use of the

mag istrate’s sig nature stamp, althoug h not in hand-writing

.

On Aug ust 27, 2009, Be y filed a delay ed application for leave to appea l the trial court’s
denial of relief to the Michig an Court of Appea ls. That court denied Be y ’s application on October 30, 2009.” On Dec ember 11, 2009, Be y filed an app l i ca t i on for leave to appea l to the Michig an Supreme Court. On Marc h 29, 2010, the Michig an Supreme Court denied Be y ’s application beca use his succe ssive motion for relief from judgme nt w as prohibited by Michig an Court Rule 6.502(G).

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v. Capello 11-1902
Unsucc essful in secur ing relief in the state courts, Be y filed the instant petition for a writ of
habea s corpus in the United States District Court for the Easter n District of Michig an on Dec ember 15, 2010. I n his habea s petition, Be y claimed that his “plea , conviction, and sentenc e [were] invalid
beca use the tr i al co urt lacke d ‘prope r’ subject-matter jurisdiction over his case ” due to the

mag istrate’s failure to sign the bind-over return and that, as a result, he was “unlawf ully imprisoned
in violation of his constitutional rig hts” and denied his d u e proce ss rig ht to a fair trial. Be y also

arg ued that he was denied eff ective assistance of counsel beca use his trial attorney failed to discover and objec t to the invalid return.

The Michig an Attorney Gene ral moved to dismiss the petition as barred b y the one- y ear
statute of limit ations set out in 28 U.S.C. § 2244(d)( 1). The district court conclude d that the petition

was indeed unt i m el y and g rante d the state’s motion to dismiss

. The court also denied Be y a

cer tificate of appea lability beca use Be y had not “made a substantial s h o wi n g of the denial of a constitutional rig ht.” Subsequently , Be y succe ssfully secur ed a cer tificate of appea lability in this

court.

DISCUSSIO N

A district court’s dismiss al of a petition for a writ of habea s co rp u s fi led pursuant to 28
U.S.C. § 2244 is revie wed de novo
. Souter v. Jones , 395 F.3d 577, 584 (6th Cir. 2005). Be y arg ues
that the district court err ed when it conclude d that his petition was filed outside the one-y ear statute
of l imitations established by § 2244(d)( 1). He contends that his petition was ti mely filed because

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v. Capello 11-1902
he did not know of the fa ctual pre dicate to his cla im until 2008, when he discovere d that his bindover r eturn wa s signe d by rubber -stamp ra ther than by hand.

Section 2244(d)( 1) provides that “[a] 1-y ear period of limit ation shall apply to an application
for a writ of habea s corpus by a p er s o n i n cu s t o dy pursuant to a judgme nt by a State court.” This
limit ation period runs f

rom the latest of one of four dates:

A. The date on which the judgme nt beca me final by the conclusion of direc t revie w or the e x piration of the time for seeking such re view; B. The date on which the impediment to filing an application cre ated by State action i n v i o l at i o n of the Constit ution or laws of the United States is remove d, if the applicant wa s preve nted from f iling by such State ac tion; C. The date on which the constitutional rig ht asser ted was initially rec og nized by the Supreme Court, if the rig ht has been new l y re co gn i zed by the Supreme Court and made r etroa ctively

applicable to case s on collatera l review ; or D. The date on which the fac tual predic ate of the claim or claims prese nted could have be en discove red throug h the exercise of due dilige nce.
28 U.S.C. § 2244(d)(1).

Be y arg ues that § 2244(d)( 1)(D) should deter mine when his limit ations period beg an to run, rathe r than § 2244(d)( 1)(A) , as the district court held. He thus insists that t h e l i m i t at ions period beg an to run on an unspecifie d date in 2008, when he discovere d that the return was flawe d, rathe r than on J une 28, 1999, whe n the period for filing an a pplication for lea

ve to appe al his conviction expired. Howeve r, as the district court noted when it dismiss ed Be y ’s application as untimely filed,
in order for § 2244(d)( 1)(D) to a pply to a habea s petition, a petitioner must show that he could not

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v. Capello 11-1902
have discovere d the fac tual predic at e fo r his habea s claim ear lier throug h the exercise of due diligenc e. See DiCenzi v. Rose , 452 F.3d 465, 471 (6th Cir. 2 0 0 6 ) (“ [ T ] he petitioner bear s the
burden of proving that h e ex er ci s ed due diligenc e, in order for the statute of limit ations to beg in running from the date he discovere d the fac tual predic ate of his claim.”) Be y neither al l ege s nor provides any rea son to suppose t hat he not only did n o t but could not have discovere d the allege d
defe ct in his bind-over prior to 2008. I n fac t, he provides no information at all about how he came
to lear n about the use of a rubber -stamp on the return or even when, sp ec i fi ca l l y , i n 2008 he
discovere d it. As a result, it is impos sible to infer fr om Be y ’s brief whether and to what e x tent he
exercised due diligenc e. Be y thus has no t met his burden of demonstrating that §2244(d)( 1)(D) applies.

Pointi ng to the g aps in the evidentiar y rec ord, Be y asks us to rema nd his case to the district
court for further inquiry into whether he acted with sufficie nt diligenc e to rende r § 22 4 4 (d )(1) (D) applicable to his petition, as we did in DiCenzi

. See DiCenzi , 452 F.3d at 470 (re manding in order

to “deve lop a reco rd as t o wh ether [t he petitioner] was duly diligent for statutory purposes” ).
Remand is not appropr iate in this case , howeve r, beca use even if the district court wer e to find upon further inquiry that Be y was duly diligent and that § 2244(d)( 1)(D) applies, his petition would still not be timely

.

The rec ord establishes that Be y filed his habea s petition more than one y ear afte r the latest day on which he could have discovere d that the bind-over return was not hand-sig ned. Although Be y does not specify when in 2008 he dis cover ed the alleg ed flaw, it is clea r from t h e re co rd that Be y - 6 -Bey

v. Capello 11-1902
knew of it some time befor e Fe bruar y 7, 2008, when the Oakland County Circuit Court first rec eived
Be y ’s notice of newly -discover ed evidenc e. But, Be y did not file his habea s petition until Dec ember 15, 2010, which constitutes a g ap of near ly three y ear s, signific antly more than one y ear betwee n the
latest date of “discove ry ” and the date of filing. Henc e, his petition would have been untimely even if § 2244(d)( 1)(D) wer e applica ble.

This result follows notwithstanding § 2244(d)( 2), which tolls the running of the o ne-y ear
limit ations period when “a proper ly filed application for

. . . post-conviction or other collater al
revie w wi t h respe ct to the pertinent judgme nt or claim is pending ” in state court. Be y appea rs to

assume that under § 2244(d)( 2), the filing of hi s second motion for relief from judgme nt in state

court on Fe bruar

y 28, 2008, not only tolled the running of the limitations period but also rese t the

one-y ear period to day one. But, we have held that second or succe ssive motions for relief from judgme nt barre d by Michig an C ourt Rule 6.502(G) are not “prope rly filed applica tion[ s] for State

. . . collater al revie w” and, there fore , do not stop (or rese t) the running of the limit ations clock under § 2244(d)( 2). W

i l l i a ms v. B i rkett , 670 F.3d 729, 733 (6th Cir. 2012). The same rule obviously 1 applies to applications for appellate revie w of the dismiss al of a second or succe ssive motion, g iven

E v e n i f t h i s w e r e n o t t h e r u l e i n t h i s c i r c u i t , a n d e v e n i f B e y ’ s s e c o n d o r s u c c e s s i v e m o t i o n f o r r e l i e f f

r o m 1 j u d g m e n t h a d t o l l e d t h e r u n n i n g o f t h e l i m i t a t i o n s p e r i o d , m o r e t h a n a y e a r p a s s e d b e t w e e n t h e t i m e t h a t h e p u r p o r t e d l y d i s c o v e r e d t h e n e w i n f o r m a t i o n a b o u t t h e r e t u r n a n d t h e d a t e t h a t h e f i l e d t h e h a b e a s p e t i t i o n , d u r i n g w h i c h t i m e a n a p p l i c a t i o n f

o r r e l i e f w a s n o t p e n d i n g i n s t a t e c o u r t

. I n d e e d , 1 1 m o n t h s p a s s e d a f t e r t h e O a k l a n d C o u n t y C i r c u i t C o u r t d e n i e d B e y ’ s m o t i o n f

o r r e l i e f f o r j u d g m e n t o n S e p t e m b e r 2 6 , 2 0 0 8 , a n d b e f o r e h e f i l e d a n a p p l i c a t i o n f

o r l e a v e t o a p p e a l
w i t h t h e M i c h i g a n C o u r t o f A p p e a l s o n A u g u s t 2 7 , 2 0 0 9

. B e y s u b s e q u e n t l y w a i t e d m o r e t h a n o n e m o n t h a f t e r t h e M i c h i g a n C o u r t o f A p p e a l s d e n i e d h i s a p p l i c a t i o n f o r l e a v e t o a p p e a l o n O c t o b e r 3 0 , 2 0 0 9 , t o f i l e a n a p p l i c a t i o n f

o r l e a v e t o a p p e a l t o t h e M i c h i g a n S u p r e m e C o u r t

. H e t h e n w a i t e d o v e r e i g h t m o n t h s a f t e r t h e M i c h i g a n S u p r e m e C o u r t d e n i e d h i s a p p l i c a t i o n f

o r l e a v e t o a p p e a l o n M a r c h 2 9 , 2 0 1 0 , b e f o r e f i l i n g h i s f

e d e r a l h a b e a s p e t i t i o n o n D e c e m b e r 1 5 , 2 0 1 0

. A l l t o l d , m o r e t h a n 2 0 m o n t h s p a s s e d a f t e r B e y d i s c o v e r e d t h a t h i s e x a m i n a t i o n r e t u r n w a s n o t h a n d

- s i g n e d , d u r i n g w h i c h p e r i o d t h e r e w a s n o “ p r o p e r l y f i l e d a p p l i c a t i o n f

o r r e l i e f ” p e n d i n g i n s t a t e c o u r t

. - 7 -Bey

v. Capello 11-1902
the lang uag e in Rule 6.502(G) prohibiting “[an] appea l [from] the denial or reje ction of a succe ssive
motion.” M.C.R . 6.502(G)( 1).

Thus, there simply is no question that Be y ’s habea s petition was filed outside the limit ations period established by § 2244(d)( 1), even if we take the fa ct s i n the light most favor able to the petitioner. Fur

ther, Be y has not re q u es ted equitable tolling, nor does the rec ord sug g est that equitable tolling would be appropr iate in this case
. I n o rd er t o m er i t equitable tolling, a habea s
p et i t i o n er must show that he has been pursuing his rig hts diligently and that some extraordin ar y circ umstance stood in his way to preve nt a timely filing. Holland v. Florida , 130 S. Ct. 2549, 2562 (2010). Ne ither condition is satisfied here

.
Finally , a word to the petitioner, who seems sincere ly convince d that his conviction would
be vacated if o n l y h e could have the m erits of his claim reviewed by some judicial authority

. Put plainly , beca

use habea s relief rests on a finding of a fede ral co n s t i t u tional violation, and beca use there was none in this case , succe ss on the m er i t s h as never been a possibili ty

. As the state has

repe atedly pointed out, Be y ’s claim rests on state law, and except for dicta in a 1982 opinion of the Michig an C ourt of Appeals, there is no authority for the proposition that a bind-over return must 2
be hand-sig ned b y t h e m ag istrate who executes the return in order to support a valid criminal

S e e I n r e M a t t i s o n , 3 2 4 N

. W

. 2 d 1 1 4 ( M i c h

. C t

. A p p
. 1 9 8 2 ) , i n w h i c h t h e d i s p o s i t i v e i s s u e i n v o l v e d t h e f a i l u r e 2
t o e n g a g e i n a b l i n d d r a w f o r t h e a s s i g n m e n t o f t h e t r i a l j u d g e f o l l o w i n g a p r e l i m i n a r y e x a m i n a t i o n
. T h e a p p e l l a t e c o u r t
n o t e d t h a t “ [ u ] n t i l t h e r e t u r n i s s i g n e d a n d f i l e d b y t h e m a g i s t r a t e , t h e t r i a l c o u r t h a s n o j u r i s d i c t i o n o v e r t h e c a s e
. ” I d

. a t 1 1 6

. H o w e v e r , a s t h e c o u r t a l s o n o t e d , M a t t i s o n “ c o u l d h a v e w a i v e d t h i s d e f e c t b y f i l i n g a r e c o g n i z a n c e [ b a i l b o n d ]
w i t h t h e t r i a l c o u r t

. ” I d

. T h e r e c o r d i n t h i s c a s e i n d i c a t e s t h a t B e y p o s t e d b o n d i n t h e d i s t r i c t c o u r t a n d t h a t i t w a s c o n t i n u e d i n t h e t r i a l c o u r t , t h u s e s t a b l i s h i n g t h e t r i a l c o u r t ’ s j u r i s d i c t i o n o v e r B e y
. - 8 -Bey

v. Capello 11-1902
conviction in a Michig an trial court. As previously noted, the trial judge in Be y ’s case held that the

return had been validly signe d by means of the mag istrate’s use of his stamp, and the petitioner has
failed to identify any authority to support the proposition that the stamped signa ture amounted to no signa ture at all. Moreove r, Michig an Court Rule 6.110, g overning p re liminary examinations,

re q u i re s only that the “re turn of examination” must be “ce rtif[ied] and transmit[ ted]” to the trial

co u rt

. M.C.R. 6.110(G). Although the conce pt of “ce rtification” may imply a signa tu re b y t h e
mag istrate, ther e is no expli cit provision in the rule that the re turn be ha nd-sig ned.

I n addition, the Michig an Court of Appea ls’s opinion in In re Mattison , the case relied on by
the petitioner throug hout his post-conviction litigation, descr ibes the “sig ning [of] the examination
return” as a “ministerial act.” 3 2 4 N. W.2d 114, 116 (Mich. Ct. App. 1982). The opinion further provides that the reme dy for an unsigne d return, “[i] f either the prosec utor or plaintiff had deeme d
it nece ssary to compel the mag istrate to perf orm [such a] minist eria l act,” would have been to

rema nd the return to the mag istrate for a corr ection. Id

. Nothing in the opinion sug g ests that under Michig an law, the failure to do so deprive s a trial court of juri s d i ct i o n o r invalidates an ensuing
conviction.

But Michig an state law is not controlling in this case
. I nstead, a habea s petitioner must plead
and prove a depriva tion of a fede ral constitutional rig ht. Although Be y alleg es that his rig ht to due

proce ss was violated in connec tion with the bind-over order , he waived any claim to relief when he
fa i l ed t o raise the issue in the state trial court befor e he enter ed a g uilty plea to the char g es t h at
formed the basis for the bind- over. A s the Supreme Court has he ld:
- 9 -Bey

v. Capello 11-1902 [A] g uilty plea repr esents a brea k in the chain of events which has prec eded it in the criminal proce ss. When a criminal defe ndant has solemnly admitted in open court that he is in fac t g uilty of the offe nse with which he is char g ed, he may not there afte r raise independe nt claims rela ting to the depriva tion of constitutional ri gh t s t hat occur red pr ior to the entry of t he guilty plea. He m ay only attack the voluntary and intelligent chara cter of t he guilty plea by showing that the advice he rec eived from counsel was not within the standards set forth in McM ann [ v. Richardson , 397 U.S. 759, 771 (1970)].

Tollett v. Hende rson , 411 U.S. 258, 267 (1973). The petitioner’s claim for relief has, from the very beg inning, be en nothing more than a n illusi on.

CONCLUSION

For the reasons set out above, we conclude that Be y ’s habeas petit ion was untimely filed. Consequently , we AF FI RM the judgment of the district court.

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