UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN HELTON,

Petitioner,

v. Case Number: 08-15070

Honorable Patrick J. Duggan

JEFFREY WOODS,

Respondent.

 /

OPINION AND ORDER 

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on September 10, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Petitioner Steven Helton has filed a pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Petitioner, a state prisoner who currently is incarcerated at

the Kinross Correctional Facility in Kincheloe, Michigan, challenges his 2000 conviction

for second-degree murder following a guilty plea. Petitioner was sentenced to a term of

imprisonment of twenty-two years to forty years for that conviction. In lieu of an answer

to the petition, Respondent filed a motion for summary judgment in which he argues that

the petition should be dismissed because it was not timely filed under 28 U.S.C.

§ 2244(d)(1). Petitioner also has filed a motion for summary judgment. For the reasons

that follow, the Court grants Respondent’s motion and denies Petitioner’s motion. The

Court also declines to issue Petitioner a certificate of appealability.

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Background

On May 26, 2000, Petitioner pleaded guilty to second-degree murder in the Circuit

Court for Wayne County, Michigan. The trial court sentenced Petitioner on July 12, 2000. 

Petitioner did not file an application for leave to appeal his guilty plea. However, in April

2008, Petitioner filed a motion for relief from judgment in the trial court pursuant to

Michigan Court Rule 6.500. The court denied that motion on June 18, 2008. On

November 4, 2008, Petitioner attempted to file a second motion for relief from judgment,

but the trial court returned the motion for failure to comply with the court rules. 

Petitioner did not appeal the trial court’s decisions with respect to his Rule 6.500 motions.

On December 8, 2008, Petitioner filed the pending application for habeas relief. 

The petition was signed and dated December 3, 2008. In his application, Petitioner raises

the following claims: (1) “defect in jurisdiction”; (2) ineffective assistance of counsel; (3)

denial of right of appeal; and (4) his guilty plea was not voluntarily and knowingly made.

Applicable Law and Analysis

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or “the

Act”) applies to all habeas petitions filed after the Act’s effective date of April 24, 1996,

and imposes a one-year limitations period. 28 U.S.C. § 2244(d)(1); McCray v.

Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007). Petitioner’s application for habeas corpus

relief was filed after April 24, 1996, and thus the provisions of the AEDPA, including the

limitations period for filing an application for habeas corpus relief, apply to his

application. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997).

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The AEDPA’s statute of limitations provides 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 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 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). Petitioner does not assert that the State created an impediment to

filing his habeas petition or that his claims are based upon newly-discovered evidence or

newly-created rights which would warrant habeas relief. Thus Petitioner’s request for

habeas relief is timely only if it was filed within one year of when his convictions became

final, excluding any time during which a properly filed application for state postconviction or collateral review was pending. 28 U.S.C. §§ 2244(d)(1)(A), (2). For

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purposes of § 2244(d)(1)(A), 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,” whichever comes later. Id.; Wilberger v. Carter, 35 Fed. App’x

111, 114 (6th Cir. 2002). 

Under Michigan Court Rule 7.205(F)(3), Petitioner had twelve months from the

entry of judgment to file a delayed application for leave to appeal. The trial court

sentenced Petitioner on July 12, 2000 and his conviction became final for purposes of the

AEDPA twelve months later when he failed to file a direct appeal. Jagodka v. Lafler, 148

Fed. App’x 345, 346 (6th Cir. 2005). Pursuant to § 2244, Petitioner then had one year to

file his habeas corpus petition.

Petitioner did not file the pending application for habeas relief until December

2008. While he filed a motion for relief from judgment in April 2008, the AEDPA’s

statute of limitations period already had expired by that time. A state court postconviction motion that is filed following the expiration of the limitations period cannot

toll that period because there is no period remaining to be tolled. Hargrove v. Brigano,

300 F.3d 717, 718 n.1 (6th Cir. 2003); see also Jurado v. Burt, 337 F.3d 638, 641 (6th

Cir. 2003). The state court’s denial of Petitioner’s application for post-conviction relief

did not start a new limitations period. Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir.

2003). Thus Petitioner’s application for habeas relief is time-barred.

The Sixth Circuit Court of Appeals has held, however, that the AEDPA’s one-year

limitations period may be subject to equitable tolling. See Griffin v. Rogers, 308 F.3d

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647, 652 (6th Cir. 2002). A credible claim of actual innocence may equitably toll the

limitations period. Souter v. Jones, 395 F.3d 577, 599 (6th Cir. 2005). Where a

petitioner “can demonstrate that it is more likely than not that no reasonable juror would

have found him guilty beyond a reasonable doubt, the petitioner should be allowed to

pass through the gateway and argue the merits of his underlying constitutional claims.”

Id. at 602. A valid claim of actual innocence requires a petitioner “to support his

allegations of constitutional error with new reliable evidence– whether it be exculpatory

scientific evidence, trustworthy eyewitness account, or critical physical evidence– that

was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865

(1995).

Absent a credible claim of actual innocence, the Sixth Circuit ruled in Dunlap v.

United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), that the test to determine whether

equitable tolling of the habeas limitations period is appropriate is the five-part test set

forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test are:

(1) the petitioner’s lack of notice of the filing requirement; (2)

the petitioner’s lack of constructive knowledge of the filing

requirement; (3) diligence in pursuing one’s rights; (4)

absence of prejudice to the respondent; and (5) the

petitioner’s reasonableness in remaining ignorant of the legal

requirement for filing his claim.

 

Dunlap, 250 F.3d at 1008. The petitioner has the burden of demonstrating that he is

entitled to equitable tolling. Griffin, 308 F.3d at 653. “‘Typically, equitable tolling

applies only when a litigant’s failure to meet a legally-mandated deadline unavoidably

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arose from circumstances beyond that litigant’s control.’” Jurado, 337 F.3d at 642

(quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560

(6th Cir. 2000)).

Petitioner fails to allege or establish that he is entitled to equitable tolling under

Dunlap or Souter. In his petition, Petitioner refers to his mental statute; however, he fails

to establish that equitable tolling should apply on that basis. The Sixth Circuit Court of

Appeals has held that mental incompetence is not a per se reason to toll a statute of

limitations and, in order to be entitled to equitable tolling on that basis, “the petitioner

must make a threshold showing of incompetence and must also demonstrate that the

alleged incompetence affected [his] ability to file a timely habeas petition.” McSwain v.

Davis, 287 Fed. App’x 450, 456 (6th Cir. 2008); see also Price v. Lewis, 119 Fed. App’x

725, 726 (6th Cir. 2005). Petitioner has not established that his mental state impeded his

ability to seek habeas review of his conviction on a timely basis.

Based on the above, the Court concludes that Petitioner is not entitled to equitable

tolling and that his petition for habeas corpus relief is barred by the AEDPA’s statute of

limitations. Therefore, the Court grants Respondent’s motion for summary judgment and

denies Petitioner’s motion.

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Certificate of Appealability

A petitioner must receive a certificate of appealability (“COA”) in order to appeal

the denial of a habeas petition for relief from either a state or federal conviction. 28

U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA “only if the applicant has made

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

Where the court denies habeas relief on procedural grounds without reaching the

petitioner’s constitutional claims, a certificate may issue if the petitioner shows that

jurists of reason would find it debatable whether (1) the petition states a valid claim of a

denial of a constitutional right; and (2) the district court was correct in its procedural

ruling. Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S. Ct. 1595, 1604 (2000). In this

case, the Court concludes that reasonable jurists would not debate that a plain procedural

bar is present requiring the dismissal of Petitioner’s petition. Therefore, no certificate of

appealability is warranted.

Accordingly,

IT IS ORDERED, that Respondent’s motion for summary judgment is

GRANTED;

IT IS FURTHER ORDERED, that Petitioner’s motion for summary judgment

and petition for a writ of habeas corpus are DENIED;

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IT IS FURTHER ORDERED, that the Court DENIES Petitioner a certificate of

appealability.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Steven Helton, #229319

Kinross Correctional Facility

16770 S. Watertower Drive

Kincheloe, MI 49788

AAG Raina Korbakis

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