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Petitioner was acquitted of two additional counts of first-degree premeditated murder,

Mich. Comp. Laws §750.316(1)(a). 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DOUGLAS DUNLAP,

Petitioner,

v. Case No. 09-10168-BC

Honorable Thomas L. Ludington 

DEBRA SCUTT, 

Respondent.

_________________________/

OPINION AND ORDER DENYING PETITIONER’S MOTION 

FOR EQUITABLE TOLLING, DISMISSING THE HABEAS 

PETITION WITH PREJUDICE, DECLINING TO ISSUE 

A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE 

TO PROCEED IN FORMA PAUPERIS ON APPEAL 

Petitioner, Douglas Dunlap, presently confined at the G. Robert Cotton Correctional Facility

in Jackson, Michigan, has filed a pro se application for the writ of habeas corpus pursuant to 28

U.S.C. § 2254. Petitioner was convicted of assault with intent to murder, Mich. Comp. Laws

§750.83; and felony firearm, Mich. Comp. Laws §750.227b.1

 He was sentenced to 28 to 60 years

in prison for the assault with intent to murder conviction and a consecutive sentence of two years

for the firearm conviction. Petitioner alleges that he was convicted on the basis of erroneous jury

instructions, ineffective assistance of trial counsel, improper admission of third-party hearsay

evidence, prosecutorial misconduct, and improper sentencing. Pending before the Court is

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Petitioner’s “Motion for Equitable Tolling to Allow Petitioner’s Pro Se Petition for Writ of Habeas

Corpus to Proceed Timely.” 

“Petitioner concedes that he has missed the statutory one-year time limit in which to file his

§ 2254 petition for writ of habeas corpus.” Mot. at 4, ¶10. “Nevertheless, Petitioner urges the

Court to equitably toll the one year limitations period.” Id. The petition is not timely, and equitable

tolling is not appropriate in this case. Therefore, the habeas petition will be dismissed with

prejudice.

I

Petitioner is correct in his assessment of the untimeliness of his habeas petition. Petitioner

was convicted on December 17, 1998. He filed a direct appeal; and his conviction was affirmed on

January 16, 2001. People v. Dunlap, No. 217123, 2001 WL 776752 (Mich. Ct. App. Jan. 16, 2001).

Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court, which

was denied on November 30, 2001. People v. Dunlap, 465 Mich. 912; 636 N.W.2d 526 (Nov. 30,

2001)(table). Direct appeal of Petitioner’s conviction ended with the state high court’s decision.

Petitioner’s conviction become final, for the purposes of commencing the AEDPA’s one-year

limitations, 90 days after the state supreme court denied the appeal, or February 28, 2002. That is

the date when the period for seeking certiorari with the U.S. Supreme Court expired. Bronaugh v.

Ohio, 235 F.3d 280, 283 (6th Cir. 2000); Thomas v. Straub, 10 F.Supp.2d 834, 835 (E.D. Mich.

1998). Because Petitioner’s conviction became final after the April 24, 1996 enactment date of the

AEDPA, Petitioner had one year from February 28, 2002 to timely file a petition for habeas relief

in a federal court. 28 U.S.C. § 2244(d)(1)(A). Absent state collateral review, Petitioner would have

been required to file his petition for writ of habeas corpus with the federal court no later than

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February 28, 2003. However, no further action was taken on this case until January 20, 2005, when

Petitioner filed a motion for relief from judgment, which was denied on April 6, 2006.

A properly filed application for state post-conviction review or other state collateral review

(i.e., motion for relief from judgment or motion for a new trial) tolls the statute of limitations during

the period the application is pending, but it cannot revive the statute of limitations period (i.e., restart

the clock) after the limitations period has expired. See Hargrove v. Brigano, 300 F.3d 717, 718, n.1

(6th Cir. 2002); 28 U.S.C. § 2244(d)(2). Such a post-judgment filing can only serve to pause a clock

that has not yet fully run. Benoit v. Bock, 237 F. Supp. 2d 804, 807 (E.D. Mich. 2003). Once the

limitations period has expired, collateral petitions can no longer serve to avoid a § 2244 statute of

limitations. Because Petitioner filed his motion for state collateral review almost two years after the

statutory period had already expired, his habeas petition is not timely.

II

Petitioner has not alleged that a state-created impediment, 28 U.S.C. § 2244(d)(1)(B), a

newly recognized constitutional right, 28 U.S.C. § 2244(d)(1)(C), or a newly discovered fact, 28

U.S.C. § 2244(d)(1)(D), prevented him from filing his habeas petition sooner. Consequently, §

2244(d)(1)(A) is the only relevant subsection, and it expired on February 28, 2003. Petitioner urges

the Court to equitably toll the limitations period due to his misunderstanding of the law as it relates

to preparing habeas corpus filings, his visual acuity problems, and his mental health challenges.

Specifically, petitioner states that he “missed the deadline because [he] is legally blind in one eye,

has limited vision in the other eye, did not have constructive knowledge of the AEDPA’s one-year

limitation, and during the year 2005 was seeking psychiatric and psychological assistance.” Mot.

at 4, ¶10. He claims that these circumstances made it impossible for him to timely pursue a habeas

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corpus remedy. Petitioner also alleges that he was diligent in pursuing his claims once he learned

of his right to seek post-conviction relief in state court and the statutory limitations period. He also

asserts that respondent will not be “substantially” prejudiced if the Court grants Petitioner’s

equitable tolling motion.

In appropriate circumstances, equitable tolling applies to the one-year limitations period for

habeas petitions. Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir. 2001). However, “a

litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005). When deciding whether equitable tolling is appropriate,

the Court considers and balances the factors set out in Andrew v. Orr, 851 F.2d 146 (6th Cir. 1988),

“unless there is congressional authority to the contrary.” Dunlap, 250 F.3d at 1009. The Andrews

factors are: (1) lack of actual notice of [the] filing requirement; (2) lack of constructive knowledge

of [the] filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the

defendant; and (5) a plaintiff’s reasonableness in remaining ignorant of the notice requirement.

Andrews, 851 F.2d at 151. “These factors . . . are not all relevant in all cases. Ultimately, the

decision whether to equitably toll a period of limitations must be decided on a case-by-case basis.”

Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002) (internal citation omitted). 

Addressing Petitioner’s mental health argument, “[a] habeas petitioner’s mental

incompetence is not a per se reason to toll the statute of limitations . . . . Instead, the alleged mental

incompetence must somehow have affected the petitioner’s ability to timely file a habeas petition.”

Brown v. McKee, 232 F. Supp. 2d 761, 767 (E.D. Mich. 2002). The petitioner has the burden of

showing that his mental problems rendered him unable to file a timely habeas petition. Id. at 768.

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Therefore, he must allege more than the mere existence of a mental illness in order to qualify for

equitable tolling. See Miller v. Runyan, 77 F.3d 189, 191 (7th Cir. 1996). Mental illness is a basis

for equitable tolling of a limitations period only in “exceptional circumstances.” Id. Moreover, the

extraordinary circumstances that would justify equitable tolling on the basis of mental incapacity

are not present when the party who seeks the tolling has been able to pursue his legal claims during

the period of his alleged mental incapacity. Id. 

In support of the existence of petitioner’s psychological impediment, he merely states that

“during the year 2005 [he] was seeking psychiatric and psychological assistance.” Mot. at 4, ¶10.

The Court does not find this argument persuasive for two reasons. First, the statute of limitations

had expired at least two years before Petitioner’s psychological status became an issue. Second,

Petitioner fails to provide the Court with any details surrounding his psychiatric condition and how

that impeded his ability to timely file a habeas petition in this matter.

Regarding Petitioner’s vision impairment, the Court concludes that his vision challenges are

insufficient to invoke equitable tolling where he has not demonstrated that he was “rendered wholly

unable to pursue his legal rights during the relevant time period due to his legal blindness . . . .” See

Warren v. U.S., 71 F. Supp. 2d 820, 823, n.3 (S.D. Ohio 1999). Petitioner’s assertions regarding his

“blindness” and lack of “visual acuity” are conclusory with no substantiation so as to justify

equitable tolling.

Finally, Petitioner claims that his misunderstanding of the law regarding the statute of

limitations and its relationship to habeas corpus filings is a basis for equitable tolling in this case.

Even assuming that Petitioner lacked actual knowledge of the filing requirement, ignorance of the

law and Petitioner’s pro se status are not sufficient grounds to warrant equitable tolling. Allen v.

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Yukins, 366 F.3d 396, 403 (6th Cir. 2004) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir.

1991)); Johnson v. United States Postal Service, 863 F.2d 48, No. 86-2189, 1988 WL 122962, at *2

(6th Cir. Nov. 16, 1988) (unpublished decision citing Baldwin County Welcome Ctr. v. Brown, 466

U.S. 147 (1984)). The Court need not consider lack of prejudice to the respondent, because

petitioner has failed to demonstrate the existence of other factors that justify tolling. Allen, 366 F.3d

at 404. Lack of prejudice to the respondent is not an independent basis for invoking the doctrine of

equitable tolling. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). 

III

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

of a habeas petition. 28 U.S.C. § 2253(c)(1). 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 it 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 1063, 1072 (6th Cir. 1997),

overruled in part on other grounds by Lindh v. Murphy, 521U.S. 320. 

In denying the habeas petition, the Court has studied the case record and the relevant law,

and concludes that 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). 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 demonstrate “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

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procedural bar requires dismissal of the petition, and no certificate of appealability is therefore

warranted. 

IV

Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a district court action

who desires to appeal in forma pauperis must file a motion to that effect in the district court. An

appeal may not be taken in forma pauperis if the court determines that it is not taken in good faith.

28 U.S.C. §1915(a)(3). The standard governing the issuance of a certificate of appealability is more

demanding than the standard for determining whether an appeal is in good faith. See Foster v.

Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of appealability may

only be granted if petitioner makes a substantial showing of the denial of a constitutional right, a

court may grant leave to proceed in forma pauperis if it finds that an appeal is being taken in good

faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3). “Good faith” requires a showing that the issues raised

are not frivolous; it does not require a showing of probable success on the merits. Foster, 208 F.

Supp. 2d at 765. 

Petitioner’s habeas petition was clearly filed beyond the statutory period. Petitioner

nevertheless may appeal this decision in forma pauperis because he was granted leave to proceed

in forma pauperis in this Court. Fed. R. App. P. 24(a)(3).

V

Accordingly, it is ORDERED that Petitioner’s “Motion for Equitable Tolling to Allow

Petitioner’s Pro Se Petition for Writ of Habeas Corpus to Proceed Timely” [Dkt. #3] is DENIED.

It is further ORDERED that Petitioner’s habeas petition is DISMISSED with prejudice.

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It is further ORDERED that a certificate of appealability is DENIED, because reasonable

jurists would not find it debatable whether the petition states a valid claim of the denial of a

constitutional right or whether the Court was correct in ruling that a procedural bar precludes review

of the substantive merits of Petitioner’s claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

It is further ORDERED that Petitioner nevertheless may appeal this decision in forma

pauperis because he was granted leave to proceed in forma pauperis in this Court. Fed. R. App. P.

24(a)(3).

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: September 24, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on September 24, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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