UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARNELL GOODWIN,

Petitioner,

v. Case Number: 08-CV-13820

Honorable Marianne O. Battani

BARRY DAVIS,

Respondent.

 /

OPINION AND ORDER 

(1) GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT

THEREBY DISMISSING PETITIONER’S PETITION FOR WRIT OF HABEAS

CORPUS AND (2) DECLINING TO ISSUE PETITIONER A CERTIFICATE OF

APPEALABILITY AND AN APPLICATION FOR LEAVE TO PROCEED ON

APPEAL IN FORMA PAUPERIS

Before the Court is Respondent’s “Motion for Summary Judgment” regarding

Petitioner Charnell Goodwin’s habeas-corpus petition. (Dkt. # 9.) On September 5,

2008, Petitioner, a state inmate currently incarcerated at the Lakeland Correctional

Facility in Coldwater, Michigan, filed his pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his

constitutional rights. (Dkt. # 1.) Respondent did not file an answer to Petitioner’s

petition. Rather, Respondent filed a motion for summary judgment, arguing that

Petitioner’s petition was not timely filed under 28 U.S.C. § 2244(d)(1). Petitioner replied

to Respondent’s motion on April 17, 2009, conceding that his petition was filed outside

the statute of limitations period, but that pursuant to Jimenez v. Quarterman, __ U.S. __,

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129 S.Ct. 681, 686 (2009), his petition should be considered timely, or, in the alternative,

this Court should invoke the doctrine of equitable tolling. (Dkt. # 12.)

For the reasons stated below, the Court grants Respondent’s motion for summary

judgment, thereby dismissing Petitioner’s petition. The Court also declines to issue

Petitioner a certificate of appealability and an application for leave to proceed on appeal

in forma pauperis.

I. BACKGROUND

Petitioner’s troubles in this case began on January 20, 1990, when Anthony

Jackson, the complainant in this case, and several of his companions were leaving a party

at Petitioner’s aunt’s house. One of Jackson’s companions made a remark about shooting

up the house. The remark was overheard by Petitioner. Upon hearing that, Petitioner ran

after the boys, caught Jackson and struck him in the head with the gun that he was

carrying; Petitioner admitted that when he had the victim by his arm, he hit him with the

gun, and the gun accidentally went off. The young man, only fourteen-years old, was

critically injured; traumatic brain injury, with paralysis on his right side.

Petitioner pleaded guilty to assault with intent to murder, MICH. COMP. LAWS

§ 750.83, and felony firearm, MICH. COMP. LAWS § 750.227BA, in Detroit, Michigan’s

Recorder’s Court, after extensive plea negotiations, which resulted in a sentencing

agreement “for two years on the felony firearm as mandated by law, and a life sentence

on the assault with intent to murder charge. The People further agree not to bring a

homicide charge against the defendant if the victim in this case should die.” (Plea Hr’g

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Tr., 2-3, Feb. 23, 1990.) The following colloquy took place between the trial judge and

Petitioner:

THE COURT: Mr. Goodwin, how old are you, sir?

DEFENDANT GOODWIN: Nineteen.

THE COURT: Nineteen. Mr. Goodwin, you understand the charge

in this case is assault with intent to murder -- that carries anything up to life

in prison -- and felony firearm, that’s a mandatory two years. And there is

no reduced plea offer, and there is a sentence agreement of the straight life

on the assault with intent to murder, plus the two years on the felony

firearm that the Prosecutor is offering, also with an agreement not to

prosecute any further any homicide charges should the victim in this case

end up dying.

Do you understand that -- the charges, the possible penalties, and the

agreement of everybody involved? Do you understand that now –

DEFENDANT GOODWIN: Yes.

THE COURT: -- as I’ve just repeated it? 

All right. And you’ve talked that over with Mr. Henry, as he’s

indicated. He tells me you want to take advantage of that. Is that what you

want to do, sir?

DEFENDANT GOODWIN: Yes.

THE COURT: Do you plead guilty to assault with intent to murder?

DEFENDANT GOODWIN: Yes.

THE COURT: Do you plead guilty to having a firearm in your

possession at the time of committing this assault?

DEFENDANT GOODWIN: Yes.

THE COURT: All right. Has anybody threatened you or forced you

to plead guilty, Mr. Goodwin?

DEFENDANT GOODWIN: No.

THE COURT: Anybody promise you anything other than what

we’ve been talking about right here in open court?

DEFENDANT GOODWIN: No.

THE COURT: Are you pleading guilty then, Mr. Goodwin, because

you are guilty?

DEFENDANT GOODWIN: Yes, sir.

THE COURT: And are you pleading guilty freely and voluntarily?

DEFENDANT GOODWIN: Yes, sir.

THE COURT: And you understand what you’re doing here this

morning, sir?

DEFENDANT GOODWIN: Yes, sir.

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THE COURT: All right. Mr. Goodwin, by pleading guilty now,

you’re waiving -- that means you’re going to give up your right to either a

jury trial or a trial by a judge without a jury. If you went to trial, you

wouldn’t have to take the witness stand at that trial to testify unless you

wanted to, and neither the judge nor the jury could hold it against you if you

remained silent and didn’t testify. And if you went to trial, you would be

presumed innocent, and the Prosecutor would have to prove you guilty

beyond a reasonable doubt.

Do you understand those rights?

DEFENDANT GOODWIN: Yes, sir.

THE COURT: And you understand that by pleading guilty you’re

giving up those rights?

DEFENDANT GOODWIN: Yes.

THE COURT: Mr. Goodwin, if you had a trial, you would have a

right to have all the witnesses against you appear here in open court. You

would have a right to question them and cross-examine them through your

lawyer, Mr. Henry. And if you had a trial and you had witnesses of your

own, you could bring your own witnesses to court, and this Court would

compel those witnesses to come to court to testify for you.

Do you understand those rights?

DEFENDANT GOODWIN: Yes.

THE COURT: And you understand that by pleading guilty, you’re

giving up those rights also?

DEFENDANT GOODWIN: Yes.

THE COURT: All right. The Information I have in this file is that

this offense occurred on January 20th of this year, 1990, over at an address

on Glendale here in the City of Detroit. Is that correct?

DEFENDANT GOODWIN: Yes.

THE COURT: Were you over there at that address?

DEFENDANT GOODWIN: Yes.

THE COURT: Did you have a weapon with you?

DEFENDANT GOODWIN: Yes.

THE COURT: What kind of weapon was that?

DEFENDANT GOODWIN: A thirty-two.

THE COURT: A thirty-two. Was that a pistol or -- pardon me?

DEFENDANT GOODWIN: Yes.

THE COURT: All right. What did you do with that pistol?

DEFENDANT GOODWIN: I hit somebody, and it went off.

THE COURT: The gun went off?

DEFENDANT GOODWIN: Yes.

THE COURT: Did you point it at somebody to shoot somebody?

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DEFENDANT GOODWIN: No.

THE COURT: Well, you didn’t then?

DEFENDANT GOODWIN: Yes. I would say yes.

THE COURT: Pardon?

DEFENDANT GOODWIN: Yes.

THE COURT: You did?

DEFENDANT GOODWIN: Yes.

THE COURT: All right. And when you shot it, did you intend to

kill that person when you shot him?

DEFENDANT GOODWIN: Yes.

* * *

THE COURT: All right. I’ll accept the plea of guilty. . . . 

(Plea Hr’g Tr., 5-9, Feb 23, 1990.) 

Subsequent to the plea hearing, on March 7, 1990, Petitioner was sentenced,

pursuant to the sentencing agreement, to life imprisonment, with the chance of parole, for

the assault-with-intent-to murder conviction, and the mandatory two-years imprisonment

for the felony-firearm conviction.

Following his sentencing, Petitioner filed a motion to withdraw his guilty plea, on

the basis that his plea was illusory. It was Petitioner’s position that he was led to believe

that the person that he shot was going to die–that the respirator was going to be turned

off–and that he would then be charged with first-degree murder. The trial court denied

the motion. (Motion Hr’g Tr., 16, Mar. 7, 1990.)

Subsequently, Petitioner, through counsel, filed his appeal as of right with the

Michigan Court of Appeals, raising the following claims: (1) that the plea was induced by

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an illusory plea bargain, and, (2) that his sentence was disproportionate. On November

20, 1992, the Michigan Court of Appeals issued an opinion affirming Petitioner’s

conviction and sentence. People v. Goodwin, No. 128696 (Mich.Ct.App. Nov. 20, 1992).

Thereafter, Petitioner filed an application for leave to appeal that decision with the

Michigan Supreme Court. On February 25, 1994, the Michigan Supreme Court, pursuant

to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), issued an order remanding

the case to the trial court, in order to determine whether Petitioner received ineffective

assistance of counsel. People v. Goodwin, No. 95564 (Mich. Feb. 25, 1994). The

Michigan Supreme Court stated in pertinent part:

Trial counsel advised defendant to accept a plea and sentencing

agreement of life imprisonment for assault with intent to commit murder

solely on the prospect that defendant might have faced first-degree murder

charges, if the victim had died. Defendant asserts he was falsely led to

believe the victim was near death. He pled guilty to the maximum possible

offense and received a life sentence under the plea bargain, which

substantially exceeded the sentencing guideline range of 96 to 180 months.

There is reason to suspect, therefore, that the plea bargain may have been

illusory. However, since no Ginther hearing was conducted, the record is

inadequate for review of defendant’s claims.

If the trial court on remand finds that trial counsel was ineffective in

advising defendant to accept the plea and sentencing agreement, defendant

shall be allowed to withdraw his guilty plea.

Goodwin, No. 95564, slip op. at 1.

Following the Ginther hearing on remand, the trial court denied Petitioner’s

motion to withdraw his guilty plea.

Subsequently, Petitioner filed a claim of appeal with the Michigan Court of

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Appeals, contending that the trial judge should have granted his motion to withdraw his

plea. On December 1, 1995, the Court of Appeals issued an opinion affirming

Petitioner’s sentence. People v. Goodwin, No. 182849 (Mich.Ct.App. Dec. 1, 1995). The

Court of Appeals stated:

Defendant’s sole contention on appeal is that the trial court should

have granted his motion to withdraw his plea because of ineffective

assistance of counsel. We disagree. To prevail on a claim of ineffective

assistance of counsel, a defendant must first show that counsel’s

performance was deficient and that, under an objective standard of

reasonableness, counsel made an error so serious that counsel was not

functioning as an attorney as guaranteed under the Sixth Amendment of the

United States Constitution. Second, the alleged deficiency must be

prejudicial to the defendant. When reviewing a claim of ineffective

assistance arising out of a guilty plea, courts must determine whether the

defendant tendered a plea voluntarily and understandingly.

Here, defendant admitted to the police that on January 20, 1990, he

struck the complainant with a gun, but stated that the shooting was

accidental. By the time that defendant made his plea on February 23, 1990,

the complainant’s condition had stabilized. Ten days before the plea was

tendered, the complainant had been transferred from Henry Ford Hospital to

Children’s Hospital. Nevertheless, the prosecutor informed defendant that

the complainant was near death. If the complainant died, the prosecutor

planned to charge defendant with first-degree murder. Defendant contends

that his counsel should have made a more thorough investigation into the

condition of the complainant.

Defendant has not shown that counsel made an error so serious that

counsel was not functioning as the counsel guaranteed by the Sixth

Amendment. This was not an illusory plea bargain. The Sixth Amendment

does not require counsel to gather up-to-the-minute medical information on

the victim of a crime. Given the fact that the complainant was shot in the

head point-blank, defendant continues to receive the benefit of his plea to

this day.

In addition, nobody could have known at the time of the plea

whether complainant would live or die. The complainant was in the

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Intensive Care Unit from January 21, 1990, until February 1, 1990. When

the complainant was transferred out of the ICU, “he was basically

unresponsive to verbal commands.” Even when he was transferred to the

Children’s Hospital on February 13, 1990, the complainant had “no

purposeful neurological function.” The complainant did not become

ambulatory until seven months after defendant made his plea. The fact that

the complainant made a miraculous recovery does not negate the voluntary

and understanding nature of defendant’s plea at the time it was made. The

trial court did not err in denying defendant’s motion.

Goodwin, No. 182849, slip op. at 1 (citations omitted).

Petitioner then filed a delayed application for leave to appeal from that decision

with the Michigan Supreme Court. On September 27, 1996, the Michigan Supreme Court

issued an order denying Petitioner’s application. People v. Goodwin, 453 Mich. 896, 554

N.W.2d 315 (1996).

Then, more than ten years later, on January 12, 2007, Petitioner filed a motion for

relief from judgment, pursuant to M.C.R. 6.500 et. seq., with the trial court. On February

7, 2007, the trial court denied the motion. People v. Goodwin, No. 90-001369-01 (Wayne

County Circuit Court, Feb. 7, 2007).

He then filed a delayed application for leave to appeal from that decision

with the Michigan Court of Appeals. The Court of Appeals denied the application. 

People v. Goodwin, No. 276338 (Mich.Ct.App. June 21, 2007). 

 Petitioner filed his application for leave to appeal with the Michigan Supreme

Court. It was denied on January 11, 2008 “because the defendant has failed to meet the

burden of establishing entitlement to relief under MCR 6.508(D).” People v. Goodwin,

480 Mich. 1018, 743 N.W.2d 60 (2008). Justice Kelly, with Justice Cavanagh joining,

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dissented and stated:

Defendant pleaded guilty of assault with intent to

murder and possession of a firearm during the commission of

a felony. He was sentenced to life in prison, with the

possibility of parole, for the assault conviction. In this motion

for relief from judgment, defendant challenges the legitimacy

of that sentence in light of the current Michigan Parole

Board’s “life means life” policy. In Foster-Bey v. Rubitschun,

Judge Marianne O. Battani of the United States District Court

for the Eastern District of Michigan held that changes made to

Michigan’s parole law and polices in 1992 and 1999 violated

the Ex Post Facto Clause of the United States Constitution. 

For the reasons discussed in my dissenting statement in

People v. Scott, 480 Mich. 1019, 743 N.W.2d 62, 2008 WL

109682 (2008), I believe the Court should grant leave to

appeal in this case as well as in Scott to consider the

jurisprudentially significant issues raised in the Foster-Bey

decision.

Id. (footnotes omitted).

On September 5, 2008, Petitioner filed his pending petition for a writ of

habeas corpus. The petition was signed and dated August 25, 2008. 

II. STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No.

104-132, 110 Stat. 1214 (“AEDPA” or “the Act”) applies to all habeas petitions filed after

the Act’s effective date, April 24, 1996, and imposes a one-year limitations period for

habeas-corpus petitions. 28 U.S.C. § 2244(d)(1); McCray v. Vasbinder, 499 F.3d 568,

571 (6th Cir. 2007), cert. denied, --- U.S. ----, 128 S.Ct. 1236, 170 L.Ed.2d 81 (2008). 

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

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habeas-corpus relief, apply to his application. Lindh v. Murphy, 521 U.S. 320, 337

(1997).

Title 28 of the United States Code, sections 2244(d)(1)(A) through (D) state

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 such

State action;

(C) the date on which the

constitutional right asserted was

originally 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

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discovered through the exercise of

due diligence.

Concerning § 2244(d)(1)(A) and a direct appeal from state court, the oneyear statute of limitations does not begin to run until the day after the petition for a writ of

certiorari was due in the Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283-84 (6th

Cir. 2000). Under Rule 13 of the Supreme Court Rules, a petition for a writ of certiorari

“is timely when it is filed with the Clerk of this Court within 90 days after entry of

judgment.” SUP.CT.R.13. However, case law provides that where a newly-enacted

statute of limitations shortens the time for filing suit, a party against whom the limitations

period has already run when the statute becomes effective must be given a reasonable

time to file suit. The Sixth Circuit has held that it is reasonable to allow a litigant the

benefit of the full one-year limitations period. Searcy v. Carter, 246 F.3d 515, 517 (6th

Cir. 2001).

Additionally, under § 2244(d)(2), the time during which a properly filed

application for state post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending tolls any period of limitation contained in the

statute. A post-conviction relief petition is “properly filed” under the statute if it meets

the applicable state rules governing filing. Artuz v. Bennett, 531 U.S. 4, 8 (2000). 

Tolling is effective only when collateral review is properly sought within the limitations

period. Id.

Concerning a petition for state post-conviction relief, the one-year statute of

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limitations is tolled during the time period between the state appellate court’s decision

and the state supreme court’s decision concerning the petition. Carey v. Saffold, 536 U.S.

214, 219-20 (2002); Matthews v. Abramajtys, 319 F.3d 780, 787-88 (6th Cir. 2003). 

However, a properly filed application for state post-conviction relief, while tolling the

statute of limitations, does not start a new limitations period. Vroman v. Brigano, 346

F.3d 598, 602 (6th Cir. 2003). The United States Supreme Court has held that, after

completion of state-court-collateral review, the statute of limitations is not tolled during

the pendency of a certiorari petition in the United States Supreme Court seeking review of

the denial of state post-conviction relief. Lawrence v. Florida, 549 U.S. 327, 329 (2007).

III. DISCUSSION

A. Timeliness of Petition

In this case, Petitioner did not file his application for a writ of habeas

corpus within the statute of limitations; Petitioner’s delayed application for leave to

appeal, following remand for a Ginther hearing, was denied on September 27, 1996. 

Petitioner then had ninety days from the Michigan Supreme Court’s order denying his

delayed application in which to seek a writ of certiorari with the United States Supreme

Court. Thus, for purposes of the statute of limitations, Petitioners’ convictions became

final on December 26, 1996. Against that backdrop, Petitioner then had until December

26, 1997, in which to file his habeas petition, excluding any time during which a properly

filed application for state post-conviction relief was pending.

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Here, the record reveals that Petitioner filed his motion for state postconviction relief with the trial court on January 12, 2007, a little over nine years after the

limitations period had expired. In its opinion and order denying that motion, the trial

court made reference to a motion for relief from judgment being filed in June 1999: “In

June 1999, the Defendant filed a pro per Motion for Relief from Judgment (MRJ). For

reasons not entirely clear to this Court, this motion was held in abeyance.” Goodwin, No.

90-001369-01, slip op. at 2. 

Even if the Court were to assume that a motion for relief from judgment

was indeed filed in June 1999, the filing of such a motion would still be outside of the

limitations period by approximately eighteen months. A state court post-conviction

motion that is filed following the expiration of the limitations period cannot toll that

period because there is no period remaining to be tolled. Jurado v. Burt, 337 F.3d 638,

641 (6th Cir. 2003).

In this case, Petitioner’s state post-conviction proceedings did not toll the

running of the statute of limitations. The AEDPA’s limitations period does not begin to

run anew after the completion of state post-conviction proceedings. See Searcy, 246 F.3d

at 519. And, furthermore, Petitioner’s habeas petition, dated August 25, 2008, was filed

with this Court on September 5, 2008, almost eleven years after the expiration of the

applicable one-year statute of limitations. Thus, the untimely filing of Petitioner’s postconviction motion did not toll or restart the running of the statute of limitations period.

Consequently, the Court finds that Petitioner is barred from habeas relief by the untimely

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filing of his petition as set forth in 28 U.S.C. § 2244(d).

However, Petitioner contends that the doctrine of equitable tolling should

apply on the basis of (1) Jimenez, supra, and (2) because he is actually innocent of the

crime charged.

B. Equitable Tolling

The United States Supreme Court has not yet decided whether the statute of

limitations for habeas actions is subject to equitable tolling. Pace v. DeGuglielmo, 544

U.S. 408, 418 n. 8 (2005). However, most circuits, including the United States Court of

Appeals for the Sixth Circuit, have determined that the one-year limitations period can be

subject to equitable tolling. See Griffin v. Rogers, 308 F.3d 647, 652 (6th Cir. 2002). The

applicability of equitable tolling on grounds of actual innocence is likewise undecided by

the Supreme Court but recognized by the Sixth Circuit. Souter v. Jones, 395 F.3d 577,

599 (6th Cir. 2005). Although the Supreme Court has not considered the question of

equitable tolling in habeas cases, it has determined that, if equitable tolling is available in

habeas challenges to state-court convictions, a litigant must show (1) that he has been

pursuing his rights diligently and (2) that some extraordinary circumstances stood in his

way. Pace, 544 U.S. at 418.

In Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the

Sixth Circuit held that the test to determine whether equitable tolling of the habeas

limitations period is appropriate is the five-factor analysis set forth in Andrews v. Orr,

851 F.2d 146 (6th Cir. 1988). The factors which the Court is to consider are:

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(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. “[T]hese factors ‘are not necessarily comprehensive or

always relevant; ultimately every court must consider an equitable tolling claim on a

case-by-case basis.’” Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005) (quoting King

v. Bell, 378 F.3d 550, 553 (6th Cir. 2004)). “In essence, the doctrine of equitable tolling

allows federal courts to toll a statute of limitations when ‘a litigant’s failure to meet a

legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s

control.’” Keenan, 400 F.3d at 421 (quoting Graham-Humphreys v. Memphis Brooks

Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)); see Pace, 544 U.S. at 418. 

The Sixth Circuit has repeatedly cautioned that equitable tolling should be granted

“sparingly.” Keenan, 400 F.3d at 420 (“Equitable tolling is permissible under the

[AEDPA], although rare.”) (Citation omitted). A petitioner has the burden of

demonstrating that he is entitled to equitable tolling. Griffin, 308 F.3d at 653.

Ignorance of the law, illiteracy, and lack of legal assistance do not amount

to grounds for equitable tolling. Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)

(quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)) (“[I]gnorance of the law

alone is not sufficient to warrant equitable tolling.”); Cobas v. Burgess, 306 F.3d 441, 444

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(6th Cir. 2002) (Inmate’s lack of legal training, his poor education, or even his illiteracy

does not give a court reason to toll the statute of limitations).

The Sixth Circuit has held that a credible claim of actual innocence may

equitably toll the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1). 

Souter, 395 F.3d at 588-90. As the Souter Court explained, where a petitioner, in order to

support a claim of actual innocence in a collateral proceeding “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.” Souter, 395 F.3d 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 (1995). Furthermore, actual innocence means

“factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,

623 (1998).

Here, Petitioner has failed to establish that he is entitled to equitable tolling.

First, Petitioner alleges that the state created an impediment to the filing of

his habeas petition by holding his original motion for relief from judgment, allegedly filed

in June 1999, in abeyance. However, even if the Court were to consider Petitioner’s

argument, that argument fails because that motion was filed almost two years after the

limitations period had expired. Furthermore, the Court finds that Petitioner has also

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failed to establish that he diligently pursued his rights, given that he filed his second

motion for relief from judgment, dated January 12, 2007, a little more than nine years

after the limitations period had expired, and subsequently, Petitioner waited over seven

months after denial of his post-conviction relief to file this habeas action.

Second, Petitioner is also not entitled to equitable tolling under Souter, as

he has neither alleged nor met the stringent standard for establishing a credible claim of

actual innocence. Moreover, any actual exception to the statute of limitations is

inapplicable in light of the fact that Petitioner pleaded guilty to the charge that he

challenges in his petition. See Reeves v. Cason, 380 F.Supp.2d 883, 885 (E.D. Mich.

2005).

Even if Petitioner’s claim were considered, tolling on an assertion of actual

innocence is not warranted. In support of his position, Petitioner presents the following

evidence: (1) his own affidavit; (2) the affidavit from his then-girlfriend, who was a

witness to the shooting and now claims that her statement to the police was coerced and

made out of fear of being charged as an accessory; and (3) a summary of the polygraph

examinations of himself and his then-girlfriend. Petitioner presented this evidence to the

trial court in this motion for relief from judgment, which the trial court denied. 

This Court finds that the trial court’s rejection of Petitioner’s claim was

correct. Petitioner did not deny committing the acts that gave rise to his conviction; he

admitted to shooting the victim. Furthermore, Petitioner has not submitted any new

evidence that would demonstrate to the Court that he is actually innocent of the charge. 

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The Court therefore finds that Petitioner is not entitled to habeas relief on an actual

innocence claim.

Finally, Petitioner also argues that Jimenez, supra, applies to his case. In

Jimenez, the United States Supreme Court held that a late round of appellate review by a

state court did not preclude habeas review where the state grants a criminal defendant the

right to file an out-of-time collateral review. The Supreme Court reasoned that a

Petitioner’s conviction is not “final” for purposes of § 2244(d)(1)(A) until the conclusion

of the out-of-time direct appeal has expired. Jimenez, __ U.S. __, 129 S.Ct. at 686. 

However, this Court finds that Petitioner misconstrues the holding in the Jimenez case.

The facts in Jimenez are as follows: After the petitioner was sentenced for

burglary, his attorney filed an appellate brief with the Texas Court of Appeals, explaining

that he was unable to identify any nonfrivolous ground on which to base an appeal. He

left a copy of the brief and a letter (advising the petitioner of his right to file a pro se

brief) at the county jail, where he believed the petitioner to be. The petitioner, however,

had been transferred to a state facility and did not receive the delivery. The Texas Court

of Appeals dismissed the appeal, and served the petitioner with notice of the dismissal at

the county-jail address that, again, was the wrong address.

The petitioner in Jimenez eventually learned that his appeal had been

dismissed. He then filed an application in state court for a writ of habeas corpus, arguing

that he was denied his right to a meaningful appeal when he was denied the opportunity to

file a pro se brief. The Texas Court of Criminal Appeals agreed and granted him the right

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to file an out-of-time appeal. The petitioner thereafter filed the out-of-time appeal. His

conviction was affirmed. The Texas Court of Criminal Appeals subsequently denied

discretionary review. The petitioner then filed a second application for a writ of habeas

corpus in state court, which was denied.

Petitioner then filed a federal petition for a writ of habeas corpus. He relied

on 28 U.S.C. § 2244(d)(1)(A), which provides “the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking such

review” as the trigger for AEDPA’s one-year limitations period. He argued that his

judgment became final when time expired for seeking certiorari review of the decision in

his out-of-time appeal. Until that date, he argued, direct review of his state-court

conviction was not complete.

The district court disagreed with the petitioner in Jimenez and dismissed the

federal habeas petition as time barred. In the district court’s view, the proper start date

for AEDPA’s one-year limitations period was when time for seeking discretionary review

of the decision in the petitioner’s first direct appeal expired. The district court concluded

that it could not take into account the Texas court’s later decision reopening the

petitioner’s direct appeal because circuit precedent established that AEDPA provided for

only a linear limitations period, one that starts and ends on specific dates, with only the

possibility that tolling will expand the period in between. 

The United States Supreme Court disagreed with the district court, stating:

With respect to post[-]conviction relief for federal

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prisoners, this Court has held that the conclusion of direct

review occurs when “this Court affirms a conviction on the

merits on direct review or denies a petition for a writ of

certiorari.” Id., at 527, 528-532, 123 S.Ct. 1072 (interpreting

§ 2255, ¶ 6(1)). We have further held that if the federal

prisoner chooses not to seek direct review in this Court, then

the conviction becomes final when “the time for filing a

certiorari petition expires.” Id., at 527, 123 S.Ct. 1072. In

construing the similar language of § 2244(d)(1)(A), we see no

reason to depart from this settled understanding, which

comports with the most natural reading of the statutory text. 

See Lawrence v. Florida, 549 U.S. 327, 332-335, 127 S.Ct.

1079, 166 L.Ed.2d 924 (2007) (citing Clay, supra, at 528, n.

3, 123 S.Ct. 1072). As a result, direct review cannot conclude

for purposes of § 2244(d)(1)(A) until the “availability of

direct appeal to the state courts,” Caspari v. Bohlen, 510 U.S.

383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994), and to this

Court, Lawrence, supra, at 332-333, 127 S.Ct. 1079, has been

exhausted. Until that time, the “process of direct review” has

not “com[e] to an end” and “a presumption of finality and

legality” cannot yet have “attache[d] to the conviction and

sentence,” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct.

3383, 77 L.Ed.2d 1090 (1983).

* * *

Our decision today is a narrow one. We hold that,

where a state court grants a criminal defendant the right to file

an out-of-time direct appeal during state collateral review, but

before the defendant has first sought federal habeas relief, his

judgment is not yet “final” for purposes of § 2244(d)(1)(A). 

In such a case, “the date on which the judgment became final

by the conclusion of direct review or the expiration of the

time for seeking such review” must reflect the conclusion of

the out-of-time direct appeal, or the expiration of the time for

seeking review of that appeal . . . .

Jimenez, ___U.S. at ___, 129 S.Ct. at 685-687.

This case is distinguishable from Jimenez, as Petitioner was not granted the

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right to file an out-of-time direct appeal. Petitioner attempts to argue that because his

post-conviction motion for relief was, for reasons unknown to the Court, stayed, that stay,

or the additional time in which the trial court took to rule on his collateral appeal, should

invoke the application of the rule outlined by the Supreme Court in Jimenez in his case. 

Petitioner is mistaken in the application of Jimenez. The rule in Jimenez is narrow and

deals with when a judgment is final for purposes of § 2244(d)(1)(A), and should only be

applied in cases where “a state court grants [Petitioner] the right to file an out-of-time

direct appeal during state[-]collateral review, but before [Petitioner] has first sought

federal habeas relief.” Jimenez, ___U.S. at ___, 129 S.Ct. at 685-687. That is not the

situation in Petitioner’s case. For the reasons stated, the Court finds that Jimenez is in

fact inapposite to Petitioner’s case.

Against that backdrop, the Court concludes that Petitioner has not met his

burden of establishing that he is entitled to equitable tolling. Therefore, the Court finds

that Petitioner is not entitled to habeas relief.

C. 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 district court, in its discretion, may decide whether to

issue a COA at the time the court rules on a petition for a writ of habeas corpus or may

wait until a notice of appeal is filed to make such a determination. See Castro v. United

States, 310 F.3d 900, 903 (6th Cir. 2002); Lyons v. Ohio Adult Parole Auth., 105 F.3d

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1063, 1072 (6th Cir. 1997), overruled in part on other grounds by Lindh v. Murphy, 521

U.S. 320 (1997). In denying the habeas petition, the Court has studied the case record

and the relevant law, and concludes that, as a result, it is presently in the best position to

decide whether to issue a COA. See Castro, 310 F.3d at 901 (quoting Lyons, 105 F.3d at

1072 (“[Because] ‘a district judge who has just denied a habeas petition . . . will have an

intimate knowledge of both the record and the relevant law,’” the district judge is, at that

point, often best able to determine whether to issue the COA.)).

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). A petitioner

must “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues presented

were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529

U.S. 473, 484 (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, and no certificate of appealability is therefore warranted. Nor should Petitioner

be granted leave to proceed on appeal in forma pauperis. See Fed. R. App. P. 24(a).

IV. CONCLUSION

Accordingly, IT IS ORDERED that Respondent’s “Motion for Summary

Judgment” [dkt. # 9] is GRANTED, and Petitioner’s “Petition for Writ of Habeas Corpus

" [dkt. # 1] is DISMISSED with prejudice.

IT IS FURTHER ORDERED that the Court DECLINES to issue

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Petitioner a certificate of appealability and an application for leave to appeal in forma

pauperis.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

Dated: May 28, 2009

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Opinion and Order was

served upon the Petitioner and Counsel for the Respondent.

s/Bernadette M. Thebolt

Case Manager

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