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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PETER HANNA,

 

Petitioner, Civil No. 5:09-CV-10004

HONORABLE JOHN CORBETT O’MEARA

v. UNITED STATES DISTRICT JUDGE

KENNETH McKEE,

Respondent.

_______________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

Peter Hanna, (“Petitioner”), presently confined at the Thumb Correctional Facility in

Lapeer, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

In his application, filed by attorney Gary A. Colbert, petitioner challenges his conviction for

kidnapping, M.C.L.A. 750.349; extortion, M.C.L.A. 750.213; and assault with intent to do great

bodily harm less than murder, M.C.L.A. 750.84. Respondent has filed a motion to dismiss,

contending that the petition was not timely filed in accordance with the statute of limitations

contained in 28 U.S.C. § 2244(d)(1). Petitioner has filed a response to the motion to dismiss. 

For the reasons stated below, the application for a writ of habeas corpus is DISMISSED WITH

PREJUDICE.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Macomb

County Circuit Court. Petitioner’s conviction was affirmed on appeal by the Michigan Court of

Appeals. People v. Hanna, No. 252363(Mich.Ct.App. March 15, 2005).

In April of 2005, petitioner filed an application for leave to appeal with the Michigan

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 See Docket Sheet from People v. Hanna, No. 2003-000052-FC (Macomb County Circuit Court), p. 2

Docket Entry from 10/24/2005(Attached to the Petition for Writ of Habeas Corpus). 

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Supreme Court. While this application was pending in the Michigan Supreme Court, petitioner

retained current counsel, who filed a post-conviction motion for relief from judgment with the

trial court pursuant to M.C.R. 6.500, et. Seq. Petitioner’s counsel also filed a motion in the

Michigan Supreme Court to stay the proceedings until the trial court resolved petitioner’s motion

for relief from judgment. The prosecutor moved to dismiss the motion for relief from judgment,

on the ground that the trial court lacked jurisdiction to entertain the post-conviction motion

because petitioner’s application for leave to appeal remained pending before the Michigan

Supreme Court. On October 24, 2005, the Macomb County Circuit Court granted the

prosecutor’s motion and dismissed the motion for relief from judgment. 1

 On October 31, 2005,

the Michigan Supreme Court denied petitioner’s application for leave to appeal and also denied

his motion to stay the proceedings. People v. Hanna, 474 Mich. 901 (2005).

On April 3, 2006, petitioner re-filed his post-conviction motion for relief from judgment

with the trial court. After the trial court and the Michigan Court of Appeals denied petitioner

post-conviction relief, collateral proceedings in the state courts ended on January 8, 2008, when

the Michigan Supreme Court denied petitioner’s post-conviction application for leave to appeal.

People v. Hanna, 480 Mich. 1009 (2008). Petitioner filed his habeas application with this Court

on February 2, 2009.

II. Discussion

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one (1) year

statute of limitations shall apply to an application for writ of habeas corpus by a person in

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custody pursuant to a judgment of a state court. The one year statute of limitation 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 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).

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

the one year statute of limitations. See Holloway v. Jones, 166 F. Supp. 2d 1185, 1187 (E.D.

Mich. 2001). 

In the present case, the Michigan Supreme Court denied petitioner leave to appeal from

his appeal of right in the Michigan Court of Appeals on October 31, 2005. Petitioner’s

conviction would become final, for the purposes of the AEDPA’s limitations period, on the date

that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See

Bronaugh v. Ohio, 235 F. 3d 280, 283 (6th Cir. 2000). Petitioner’s judgment therefore became

final on January 29, 2006, when he failed to file a petition for writ of certiorari with the U.S.

Supreme Court. See Fugate v. Booker, 321 F. Supp. 2d 857, 859 (E.D. Mich. 2004). Petitioner

therefore had until January 29, 2007 to file his petition in compliance with the statute of

limitations unless the one year period was somehow tolled. Id. at 859-60.

Petitioner originally filed a post-conviction motion for relief from judgment with the trial

court while his application for leave to appeal the Michigan Court of Appeals’ affirmance of his

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direct appeal was still pending with the Michigan Supreme Court. Petitioner claims that this

motion was never dismissed by the Macomb County Circuit Court, but remained pending before

that court after the Michigan Supreme Court denied petitioner’s application for leave to appeal

on October 31, 2005. Petitioner claims that the time from when the Michigan Supreme Court

denied his application for leave to appeal his direct appeal on October 31, 2005 through the time

that the Michigan Supreme Court denied his post-conviction appeal on January 8, 2008 should

be tolled because his post-conviction motion remained pending in the state courts for that entire

time period.

A habeas petitioner has the burden of demonstrating facts that will statutorily toll the

one-year limitations pursuant to § 2244(d)(2). See e.g. Johnson v. Lewis, 310 F. Supp. 2d 1121,

1125 (C.D. Cal. 2004). Although petitioner’s original post-conviction motion was held in

abeyance on July 25, 2005 by the trial court pending a decision by the Michigan Supreme Court,

the Macomb County Circuit Court subsequently dismissed this first motion for relief from

judgment on October 24, 2005. This dismissal is reflected in the Macomb County Circuit Court

docket entries. In a habeas proceeding, a federal district court is permitted to take judicial notice

of the records in the case which resulted in the petitioner’s underlying conviction. See Camper v.

Benov, 966 F. Supp. 951, 953, n. 2 (C.D. Cal. 1997). In the absence of reliable evidence to the

contrary, a federal district court should presume the accuracy of a court clerk’s docket entries.

Arnold v. Wood, 238 F. 3d 992, 995 (8th Cir. 2001). Petitioner has presented no evidence to this

Court that would dispute the Macomb County Circuit Court docket entry. Although petitioner

claims that this docket entry refers to his motion for an evidentiary hearing, the docket entry

indicates that the motion for an evidentiary hearing was dismissed because counsel failed to

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 See Brief in Support of Petition for Writ of Habeas Corpus, p. 8. 

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appear, but further indicated that the trial court had granted the prosecutor’s motion to dismiss

the motion for relief from judgment. Further evidence that this first post-conviction motion was

dismissed is evidenced in the trial court’s subsequent order denying petitioner’s re-filed motion

for relief from judgment. In that opinion, the trial court judge noted that it had granted the

prosecutor’s motion to dismiss petitioner’s motion for relief from judgment on October 24, 2005.

People v. Hanna, No. 2003-0052-FC, * 2 (Macomb County Circuit Court, April 27, 2006). The

trial court further noted that although M.C.R. 6.502(G) limits a defendant to filing one postconviction motion, “[B]ecause defendant’s prior motion was premature, the Court will discount

that motion and will respond to the defendant’s amended motion filed April 3, 2006.” Id. 

Petitioner himself indicates in his petition for writ of habeas corpus that this first motion for

relief from judgment was dismissed, although he claims that it was because an illness of counsel

prevented him from appearing in court. 2

Petitioner’s first post-conviction motion was filed prematurely, because his direct appeal

was still pending with the Michigan Supreme Court when he filed this motion with the Macomb

County Circuit Court. Under M.C.R. 6.508(D)(1), a Michigan court may not grant relief from

judgment if the criminal defendant’s motion seeks relief from the judgment of a conviction and

sentence that still is subject is to challenge on appeal under M.C.R. 7.200 [the court rules for the

Michigan Court of Appeals] or M.C.R. 7.300 [the court rules for the Michigan Supreme Court].

People v. McSwain, 259 Mich. App. 654, 679; 676 N.W. 2d 236 (2003); See also Moritz v.

Lafler, No. 2008 WL 783751, * 2 (E.D. Mich. March 19, 2008). The Macomb County Circuit

Court would not have had jurisdiction to entertain petitioner’s post-conviction motion while his

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direct appeal remained pending before the Michigan Supreme Court.

An application for state post-conviction relief is considered “properly filed”, for purposes

of triggering the tolling provisions of § 2244(d)(2), when “its delivery and acceptance are in

compliance with the applicable laws and rules governing filings, e.g. requirements concerning

the form of the document, the court and office in which it must be lodged, payment of a filing

fee, and applicable time limits upon its delivery.” Israfil v. Russell, 276 F. 3d 768, 771 (6th Cir.

2001). In this case, the trial court appears to have dismissed petitioner’s post-conviction motion

pursuant to M.C.R. 6.508(D)(1) because it had been filed prematurely. Because federal courts

defer to state courts on issues of state law and procedure, this Court must defer to the state trial

court’s finding that petitioner’s original post-conviction motion was not filed in substantial

compliance with the filing requirements found in M.C.R. 6.508. See Vroman v. Brigano, 346 F.

3d 598, 603 (6th Cir. 2003); Israfil, 276 F. 3d at 771-72. Thus, the state trial court’s

determination whether petitioner’s post-conviction motion was properly filed governs whether

petitioner’s post-conviction motion action tolled the statute of limitations under § 2244(d)(2).

Vroman, 346 F. 3d at 603.

Because petitioner’s first post-conviction motion was dismissed for failing to conform

with the requirements of M.C.R. 6.508(D)(1), petitioner’s motion for relief from judgment was

not properly filed and did not toll the limitations period pursuant to § 2244(d)(2). See Herbert v.

Jones, 351 F. Supp. 2d 674, 677 (E.D. Mich. 2005). A state post-conviction motion or state

habeas application that is dismissed as premature because it was filed during the pendency of the

petitioner’s direct appeal is not a properly filed post-conviction application and does not toll the

limitations period pursuant to § 2244(d)(2). See Blackson v. Warden, SCI Waymart, No. 2009

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WL 929857, * 3 (E.D. Pa. March 27, 2009); Roberts v. Norris, No. 2007 WL 38152, * 3-4 (E.D.

Ark. January 5, 2007). Petitioner’s prematurely filed post-conviction motion for relief from

judgment did not toll the limitations period.

Petitioner ultimately filed his second post-conviction motion for relief from judgment

with the state trial court on April 3, 2006, after sixty four days had already elapsed on the one

year statute of limitations. 28 U.S.C. § 2244(d)(2) expressly provides that the time during which

a properly filed application for state post-conviction relief or other collateral review is pending

shall not be counted towards the period of limitations contained in the statute. Corbin v. Straub,

156 F. Supp. 2d 833, 836 (E.D. Mich. 2001). A post-conviction application remains pending in

the state courts, for purposes of § 2244(d)(2), until it “has achieved final resolution through the

state’s post-conviction procedures.” Carey v. Safford, 536 U.S. 214, 220 (2002). The tolling of

the AEDPA’s one year statute of limitations ended in this case when the Michigan Supreme

Court denied petitioner’s application for leave to appeal the denial of his motion for relief from

judgment on January 8, 2008. Hudson v. Jones, 35 F. Supp. 2d 986, 988-989 (E.D. Mich. 1999). 

Petitioner had three hundred and one days remaining from this date, which would have been no

later than November 4, 2008, to timely file his petition with this Court. Because the instant

petition was not filed until almost two months later on January 2, 2009, the petition is untimely

and was not filed in compliance with the AEDPA’s one year statute of limitations. 

In his reply to the motion to dismiss, petitioner’s counsel claims that he only discovered

petitioner’s Brady claim involving the police department’s failure to process a fingerprint that

was recovered from above the faucet of the bathtub where petitioner had submerged the victim’s

head in water. 

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Pursuant to 28 U.S.C.§ 2244(d)(1)(D), the AEDPA’s one year limitations period begins

to run from the date upon which the factual predicate for a claim could have been discovered

through due diligence by the habeas petitioner. See Ali v. Tennessee Board of Pardon and

Paroles, 431 F. 3d 896, 898 (6th Cir. 2005). However, the time commences under §

2244(d)(1)(D) when the factual predicate for a habeas petitioner’s claim could have been

discovered through the exercise of due diligence, not when it was actually discovered by a given

petitioner. Redmond v. Jackson, 295 F. Supp 2d 767, 771 (E.D. Mich. 2003). Moreover, the time

under the AEDPA’s limitations period begins to run pursuant to § 2244(d)(1)(D) when a habeas

petitioner knows, or through due diligence, could have discovered, the important facts for his or

her claims, not when the petitioner recognizes the facts’ legal significance. Id. Finally, “§

2244(d)(1)(D) does not convey a statutory right to an extended delay while a petitioner gathers

every possible scrap of evidence that might support his claim.” Redmond, 295 F. Supp. 2d at

771. A habeas petitioner has the burden of proof in persuading a federal court that he or she

exercised due diligence in searching for the factual predicate of the habeas claims. See Stokes v.

Leonard, 36 Fed. Appx. 801, 804 (6th Cir. 2002).

In the present case, the commencement of the one year limitations period was not delayed

pursuant to § 2244(d)(1)(D) until petitioner’s alleged discovery of the factual predicate for his

Brady claim, in light of the fact that petitioner was aware at trial that the police had not

processed this fingerprint. See Whalen v. Randle, 37 Fed. Appx. 113, 119 (6th Cir. 2002). 

The one year limitations period under the AEDPA is considered a statute of limitations

which is subject to equitable tolling, and is not a jurisdictional prerequisite which would bar

review by the federal courts if not met. Dunlap v. United States, 250 F. 3d 1001, 1004 (6th Cir.

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2001). The Sixth Circuit also noted that the doctrine of equitable tolling should be used

“sparingly,” Dunlap, 250 F. 3d at 1008-09, and that “[a]bsent a satisfactory explanation for his

failure to timely file his habeas petition,” a petitioner would fail to exercise due diligence in

pursuing his claim, and thus would not be entitled to equitable tolling of the limitations period.

Id. at p. 1010. The burden is on a habeas petitioner to show that he or she is entitled to the

equitable tolling of the one year limitations period. She Jurado v. Burt, 337 F. 3d 638, 642 (6th

Cir. 2003). 

Petitioner’s counsel first appears to argue that the limitations period should be equitably

tolled because he believed that the first post-conviction motion remained pending before the

Macomb County Circuit Court. As a general rule, “a lawyer’s mistake is not a valid basis for

equitable tolling.” Jurado, 337 F. 3d at 644(quoting Whalen, 37 Fed. at 120). Counsel’s

mistaken belief that petitioner’s first state postconviction application was pending for purposes

of tolling the one-year limitations period would not justify equitable tolling of the one-year

limitations period. Jurado, 337 F. 3d at 644-45.

Petitioner’s counsel next contends that the limitations period should be equitably tolled

because he suffers from an unspecified visual impairment, as well as the fact that counsel’s

mother and dogs passed away and he lost his home and law office during the time that the statute

of limitations ran. 

While the Court is sympathetic to counsel’s personal and financial problems, they would

be insufficient to equitably toll the limitations period. See Modrowski v. Mote, 322 F. 3d 965,

967-68 (7th Cir. 2003)(rejecting the argument that petitioner’s counsel’s depression, physical

illnesses, the death of his father, and the disintegration of his law practice justified equitable

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tolling of the limitations period). An attorney’s incapacity does not justify equitable tolling of

the limitations period, “because attorney incapacity is equivalent to attorney negligence for

equitable tolling purposes.” Id. at 968. Habeas petitioners bear the ultimate responsibility for

filing their habeas applications, even if that means preparing duplicative petitions. Id. Petitioner

is not entitled to equitable tolling on this basis.

III. Conclusion

The Court determines that the current habeas petition is barred by the AEDPA’s one year

statute of limitations contained in § 2244(d)(1). Accordingly, the Court will summarily dismiss

the current petition. The Court will also deny petitioner a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(A) and F.R.A.P. 22(b) state that an appeal from the district court’s denial of a writ

of habeas corpus may not be taken unless a certificate of appealability (COA) is issued either by

a circuit court or district court judge. If an appeal is taken by an applicant for a writ of habeas

corpus, the district court judge shall either issue a certificate of appealability or state the reasons

why a certificate of appealability shall not issue. F.R.A.P. 22(b). To obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a constitutional right.

28 U.S.C. § 2253(c)(2). 

When a district court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claims, a certificate of appealability should issue, and an

appeal of the district court’s order may be taken, if the petitioner shows 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. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a plain procedural bar

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is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or that the

petition should be allowed to proceed further. In such a circumstance, no appeal would be

warranted. Id. A federal district court may grant or deny a certificate of appealability when the

court issues a ruling on the habeas petition. Castro v. United States, 310 F. 3d 900, 901 (6th Cir.

2002). 

The Court will deny petitioner a certificate of appealability, because reasonable jurists

would not find it debatable whether this Court was correct in determining that petitioner had

filed his habeas petition outside of the one year limitations period. Grayson v. Grayson, 185 F.

Supp. 2d 747, 753 (E.D. Mich. 2002). 

IV. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is

DENIED WITH PREJUDICE.

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

s/John Corbett O’Meara

United States District Judge

Date: September 9, 2009

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

on this date, September 9, 2009, by electronic and/or ordinary mail.

s/William Barkholz

Case Manager

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