UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEVON ECHOLS 

 Petitioner, CASE NO. 2:09-CV-10049 

v. HONORABLE GEORGE C. STEEH 

 UNITED STATES DISTRICT JUDGE 

CAROL HOWES HONORABLE R. STEVEN WHALEN 

 UNITED STATES MAGISTRATE JUDGE 

 Respondent. 

 / 

Nicholas J. Bachand MICHAEL A. COX 

Peter J. Lucido P.C. ATTORNEY GENERAL 

39999 Garfield Road 

Clinton Township, MI 48038 Andrew L. Shirvell (P70472) 

 Assistant Attorney General 

 Attorney for Respondent 

 Appellate Division 

 P.O. Box 30217 

 Lansing, MI 48909 

 (517) 373-4875

MOTION TO DISMISS HABEAS PETITION

AND BRIEF IN SUPPORT

MOTION TO DISMISS

 Respondent Carol Howes, through her attorneys, Michael A. Cox, Attorney General for 

the State of Michigan, and Andrew L. Shirvell, Assistant Attorney General, moves for dismissal 

of Petitioner's habeas corpus petition, pursuant to Habeas Corpus Rule 4. 

 

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BRIEF IN SUPPORT OF MOTION TO DISMISS PETITION

Relevant Facts and Procedural History 

 Following a jury trial in Wayne County Circuit Court, Petitioner was convicted on 

September 27, 2002 of assault with intent to commit murder,1 felon in possession of a firearm,2

and felony firearm.3

 On January 22, 2003, Petitioner was sentenced as a third habitual offender 

to 10-to-30 years' imprisonment on the assault conviction and to a mandatory consecutive 2-year 

term of imprisonment on the felony-firearm conviction. It is not clear from the record whether 

Petitioner was actually sentenced on his felon-in-possession-of-a-firearm conviction. 

 In March 2003, Petitioner, via counsel, filed a motion for new trial with the Wayne 

County Circuit Court, raising two issues. On or about October 10, 2003, the Wayne County 

Circuit Court issued an order denying Petitioner's motion for new trial. 

 Over two years later, on November 18, 2005, Petitioner, apparently through counsel, filed 

with the Wayne County Circuit Court a motion for relief from judgment under M.C.R. 6.508(D), 

in which he raised three issues. In an order dated June 14, 2006, the Wayne County Circuit 

Court denied Petitioner's motion for relief from judgment.4

 In February 2007, Petitioner replaced his attorney Linda Ashford with current counsel, 

James Czarnecki, II. In June 2007, Petitioner, through counsel, filed with the Michigan Court of 

Appeals a delayed application for leave to appeal the Circuit Court's order denying Petitioner's 

motion for relief from judgment. On August 20, 2007, the Michigan Court of Appeals issued an 

order denying Petitioner's delayed application for leave to appeal because Petitioner had "failed 

 

1

 Mich. Comp. Laws § 750.83. 

2

 Mich. Comp. Laws § 750.224f. 

3

 Mich. Comp. Laws § 750.227b. 

4 People v. Echols, Wayne County Circuit Court No. 02-3076 (2006). 

2

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to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)."5

 In October 

2007, Petitioner, again via counsel, filed with the Michigan Supreme Court an application for 

leave to appeal the Court of Appeals' August 20, 2007 order. On January 8, 2008, the Michigan 

Supreme Court issued an order denying Petitioner's application for leave to appeal because 

Petitioner had "failed to meet the burden of establishing entitlement to relief under M.C.R. 

6.508(D)."6 

On January 7, 2009, Petitioner, pursuant to 28 U.S.C. § 2254, filed a habeas petition and 

brief through counsel. He raises two claims in his brief. 

 

 

5 People v. Echols, Michigan Court of Appeals No. 278675 (2007). 

6 People v. Echols, Michigan Supreme Court No. 135042 (2008). 

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Argument

I. Where the undisputed facts show that more than one year elapsed on the applicable 

limitations period before the filing of Petitioner's habeas petition, Petitioner's 

habeas petition should be dismissed based on Petitioner’s failure to comply with the 

statute of limitations. 

In his habeas petition, Petitioner presents two claims for this Court to review. 

Respondent asserts that it is not necessary for this Court to reach the merits of the issues 

presented because Petitioner has failed to comply with the statute of limitations, and, therefore, 

his petition must be dismissed. 

Pursuant to Habeas Corpus Rule 4 regarding preliminary review of a habeas petition, "if 

it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 

relief in the district court, the judge must dismiss the petition and direct the clerk to notify the 

petitioner." 

In this case, it is plainly apparent from Petitioner's habeas petition that he is not entitled 

to relief in this Court. The federal habeas corpus statute, 28 U.S.C. § 2244(d) (as amended by 

the AEDPA, which was signed into law on April 24, 1996), states: 

(d)(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 discovered through the exercise of due diligence. 

4

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(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 shall not be 

counted toward any period of limitation under this subsection. 

Here, Petitioner's convictions became final after the AEDPA's April 24, 1996 effective 

date. Thus, as outlined above, 28 U.S.C. § 2244(d), which governs the timeframe for filing a 

federal habeas petition, applies to Petitioner. To begin with, § 2244(d)(1)(B), (C), and (D) are 

not applicable to Petitioner's case since he does not allege in his habeas petition that the State 

created an impediment to filing the petition, and he does not rely on any new constitutional rule 

or on any newly discovered factual predicate concerning his habeas claims. Consequently, the 

timeframe for filing a habeas petition as described under § 2244(d)(1)(A) concerns Petitioner's 

case. 

Under § 2244(d)(1)(A), the one-year statute of limitations for filing a habeas petition 

begins on "the date on which the judgment became final by the conclusion of direct review or the 

expiration of the time for seeking such review." In this case, Petitioner did not appeal his 

convictions to the Michigan Court of Appeals or seek leave to appeal with the Michigan 

Supreme Court via a direct appeal. Therefore, under M.C.R. 7.205(F), his convictions became 

final on January 22, 2004 – one year after Petitioner's sentencing date. 

Petitioner had until January 22, 2005 to file his habeas petition with this Court, or to 

instead properly file an application for State post-conviction review, which would toll the oneyear statute of limitations period. Petitioner did not choose to seek collateral review of his 

convictions until November 18, 2005, which was approximately ten months after the habeas 

limitations period had expired. Consequently, the habeas statute of limitations period clearly had 

expired before Petitioner filed his motion for relief from judgment with the Wayne County 

Circuit Court, and the filing of the motion did not re-set the statute of limitations. Thus, because 

5

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Petitioner has failed to comply with the statute of limitations, the petition should be dismissed 

unless equitable tolling applies. 

A court determines whether to equitably toll AEDPA’s statute of limitations using the 

five-factor test set forth in Andrews v. Orr.

7

 A court considers: (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.8

 The petitioner bears the burden of demonstrating that he is entitled to equitable 

tolling,9

 and equitable tolling should only be granted "sparingly."10 Absent compelling equitable 

considerations, a court should not extend the limitations period by even a single day.11

Petitioner is not entitled to equitable tolling in this case. Petitioner has failed to establish 

that he lacked notice, constructive or otherwise, of the filing requirement, or that his lack of 

notice or ignorance was reasonable, and has failed to show that he diligently pursued his rights. 

Regarding prejudice to Respondent, the United States Sixth Circuit Court of Appeals has held 

that the "absence of prejudice is a factor to be considered only after a factor that might justify 

tolling is identified."12 Because Petitioner has failed to demonstrate the existence of a factor that 

would justify tolling in this case, any alleged lack of prejudice to Respondent may not be 

 

7 Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988); See Dunlap v. United States of America, 

250 F.3d 1001, 1010 (6th Cir. 2001). 

8 Dunlap, 250 F.3d at 1008. 

9 Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). 

10 Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). 

11 Graham-Humphreys v. Memphis Brooks Museum of Art, Inc, 209 F.3d 552, 561 (6th Cir. 

2000). 

12 Allen v. Yukins, 366 F.3d 396, 404 (6th Cir. 2004), citing Vroman v. Brigano, 346 F.3d 598, 

605 (6th Cir. 2003). 

6

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considered. Consequently, Petitioner is not entitled to equitable tolling of AEDPA's statute of 

limitations under any of the factors set out in Andrews. 

In Souter v. Jones, the Sixth Circuit recognized that actual innocence is a valid ground 

upon which a petitioner might avoid the bar of the statute of limitations in § 2444(d)(l).13 

However, to avail himself of that rule, a petitioner must establish actual innocence under the 

stringent rule of Schlup v. Delo by coming forward "with new reliable evidence – whether it be 

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – 

that was not presented at trial,"14 and which shows that "it is more likely than not that no 

reasonable juror would have found petitioner guilty beyond a reasonable doubt."15 Here, 

Petitioner makes no such showing. Therefore, Petitioner cannot avoid the bar of the statute of 

limitations in § 2444(d)(l) because he is not actually innocent of the crimes for which he has 

been convicted. 

Respondent respectfully asks this Court to dismiss the habeas petition because of 

Petitioner’s failure to comply with the statute of limitations.

 

 

13 Souter v. Jones, 395 F.3d 577, 599-600 (6th Cir. 2005). 

14 Schlup v. Delo, 513 U.S. 298, 324 (1995). 

15 Schlup, 513 U.S. at 327. 

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Conclusion

For the reasons stated above, the petition should be denied. 

 Respectfully submitted, 

Michael A. Cox 

 Attorney General 

 s/Andrew L. Shirvell

Andrew L. Shirvell 

Assistant Attorney General 

 Appellate Division 

P.O. Box 30217 

Lansing, MI 48909 

 shirvella@michigan.gov 

 P70472 

Dated: July 15, 2009 

20090003621A/Echols, Devon/EcholsMotToDismiss

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Certificate of Service

I hereby certify that on July 15, 2009, I electronically filed the foregoing papers with the 

Clerk of the Court using the ECF system which will send notification of such filing to the 

following: 

HONORABLE GEORGE C. STEEH 

MAGISTRATE JUDGE R. STEVEN WHALEN 

NICHOLAS J. BACHAND, ATTORNEY FOR PETITIONER 

 MICHAEL A. COX 

 Attorney General 

s/Andrew L. Shirvell

Assistant Attorney General 

 Appellate Division 

P.O. Box 30217 

Lansing, MI 48909 

 shirvella@michigan.gov 

 P70472 

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