UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM LESTER SUMMERS,

Petitioner,

CASE NO. 2:08-CV-14100

v. JUDGE NANCY G. EDMUNDS

MAGISTRATE JUDGE PAUL KOMIVES

DEBRA L. SCUTT

Respondent.

 /

REPORT AND RECOMMENDATION ON RESPONDENT’S

MOTION FOR SUMMARY JUDGMENT (docket #8)

I. RECOMMENDATION: The Court should conclude that petitioner’s application for the writ

of habeas corpus is not barred by the one year statute of limitations contained in 28 U.S.C. §

2244(d). Accordingly, the Court should deny respondent’s motion for summary judgment (docket

#9) and order respondent to file an answer addressing the merits of petitioner’s claims.

II. REPORT:

A. Procedural Background

Petitioner William Lester Summers is a state prisoner, currently confined at the G. Robert

Cotton Correctional Facility in Jackson, Michigan. Petitioner is serving a sentence of 7-30 years’

imprisonment imposed as a result of his 2003 state court convictions for first degree criminal sexual

conduct. Petitioner’s application and the state court record reveal the following time line of the state

court proceedings:

• Petitioner was convicted of first degree criminal sexual conduct pursuant to his guilty

plea in the St. Joseph County Circuit Court. On December 18, 2003, the Court

imposed its sentence.

• Following an unsuccessful motion to withdraw his plea in the trial court, petitioner

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filed an application for leave to appeal his conviction in the Michigan Court of

Appeals. The court of appeals denied petitioner’s application for leave to appeal on

May 13, 2005. See People v. Summers, No. 259613 (Mich. Ct. App. May 13, 2005).

• Petitioner filed an application for leave to appeal in the Michigan Supreme Court.

That application was denied on October 31, 2005. See People v. Summers, 474

Mich. 907, 705 N.W.2d 132 (2005).

• On January 11, 2006, petitioner filed a motion for relief from judgment in the trial

court pursuant to MICH. CT. R. 6.500-.509. The trial court denied the motion on

February 9, 2006. 

• Petitioner sought leave to appeal in the Michigan Court of Appeals. The court of

appeals denied petitioner’s application on December 27, 2006. See People v.

Summers, No. 271068 (Mich. Ct. App. Dec. 27, 2006).

• Petitioner thereafter sought leave to appeal in the Michigan Supreme Court. That

court denied petitioner’s application on June 26, 2007. See People v. Summers, 478

Mich. 925, 733 N.W.2d 48 (2007).

In early June, 2008, petitioner filed a brief pleading in this Court which was titled a “Delayed

Application for Leave to File an Appeal,” and which was captioned in the format of the state court

proceedings, with the state trial court case number. The document was headed “Delayed

Application for Leave to Appeal–United States Federal Court.” See Pet’r’s Resp., Ex. A. On June

6, 2008, the Clerk sent to petitioner a form document informing petitioner that “IN ORDER TO

PROCESS YOUR DOCUMENTS, PLEASE RETURN THIS FORM TO THE COURT WITH THE

REQUESTED CORRECTIONS.” The form is checked next to the line indicating “[t]he caption is

incorrect on the complaint, listing a different court.” On the lines provided for “Other,” the Clerk

indicated “wrong court.” See id., Ex. B. In a letter received by the Court on July 1, 2008, petitioner

informed the court: “I am sorry for the mistake on the other letter that I sent. It’s not the brief for

delayed application for leave to file an appeal. This is habeas corpus brief. I want to let you know

about it.” Id., Ex. C. On September 24, 2008, petitioner filed an application for the writ of habeas

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The AEDPA codified a one-year statute of limitations provision for motions to vacate federal

convictions brought under 28 U.S.C. § 2255 which is nearly identical to the one found in § 2244(d)(1).

See 28 U.S.C. § 2255 para. 6. Accordingly, cases discussing the § 2255 statute of limitations are

applicable here.

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on the standard form petition, and included an accompanying brief. 

Respondent filed this motion for summary judgment on March 27, 2009, arguing that

petitioner’s habeas application is untimely. Petitioner filed a response to the motion on April 17,

2009. For the reasons that follow, the Court should grant respondent’s motion to dismiss.

B. Timeliness of Petitioner’s Habeas Application

Respondent argues that petitioner’s application is barred by the one-year statute of

limitations governing habeas petitions. On April 24, 1996, President Clinton signed into law the

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1220 (Apr.

24, 1996). In relevant part, the AEDPA amended 28 U.S.C. § 2244 to provide a one year statute of

limitations for habeas petitions. Specifically, the statute as amended by the AEDPA provides:

(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 of 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 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.

(2) The time during which a properly filed application for State postconviction 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.

28 U.S.C. § 2244(d).1

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As the language of the statute indicates, there are four possible dates on which the limitations

period may begin to run. The claims asserted in petitioner’s habeas application do not implicate

subparagraphs (B) through (D), and thus subparagraph (A) applies here. Under subparagraph (A)

of § 2244(d), 

a judgment of conviction does not become “final” . . . until the Supreme Court

affirms the conviction and sentence on the merits or denies a timely filed petition for

certiorari.

In addition, if a defendant does not file a certiorari petition, the judgment of

conviction does not become “final” until the time for seeking certiorari review

expires.

Kapral v. United States, 166 F.3d 565, 570-71 (3d Cir. 1999); see also, United States v. Simmonds,

111 F.3d 737, 744 (10th Cir. 1997) (conviction became final upon denial of certiorari); Torres v.

Irvin, 33 F. Supp. 2d 257, 271 (S.D.N.Y. 1998) (“[A] judgment of conviction only becomes final

upon the expiration of the ninety days to seek a writ of certiorari from the United States Supreme

Court.”); United States v. Dorsey, 988 F. Supp. 917, 918 (D. Md. 1998) (same); cf. Penry v.

Lynaugh, 492 U.S. 302, 314 (1989) (for purpose of determining whether application of new rule of

law would be an impermissible retroactive application to a case which has already become final,

conviction becomes final upon denial of the defendant’s petition for certiorari); Griffith v. Kentucky,

479 U.S. 314, 321 n.6 (1987) (“By ‘final,’ we mean a case in which a judgment of conviction has

been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed

or a petition for certiorari finally denied.”).

Here, the Michigan Supreme Court denied petitioner’s application for leave to appeal in

connection with his direct appeal on October 31, 2005, and his conviction became final 90 days later

when the time for seeking certiorari in the United States Supreme Court expired. Petitioner’s

conviction therefore became final on January 29, 2006. Thus, the limitations began to run on

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January 29, 2006, and expired one year later, on January 29, 2007.

Under § 2244(d)(2), the limitations period is tolled for “[t]he 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[.]” Here, petitioner filed his state court motion for relief from

judgment on January 11, 2006, prior to the time the limitations period began to run. Thus, when the

post-judgment proceedings concluded on June 26, 2007, with the Michigan Supreme Court’s denial

of his application for leave to appeal, petitioner still had one full year in which to file his habeas

application. Thus, petitioner’s application is timely so long as it was filed by June 26, 2008.

Petitioner’s form habeas petition was not dated until September 22, 2008, and was not filed

by the Clerk until September 24, 2008. If either of these dates provides the effective filing date of

the habeas petition, the petition is untimely. The question, therefore, is whether the petition should

be deemed “filed” for purposes of the limitations period on June 3, 2008, the date he filed in this

Court his “Delayed Application for Leave to File an Appeal.” If his petition is deemed filed as of

June 3, 2008, the petition is timely.

The Court need not answer whether petitioner’s application may be deemed filed as of June

3, 2008, because even if the answer to that question is resolved against petitioner, it is clear that he

is entitled to equitable tolling of the limitations period from that date. In Irwin v. Department of

Veterans Affairs, 498 U.S. 89 (1990), the Supreme Court explained that it has generally “allowed

equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing

a defective pleading during the statutory period.” Id. at 96. The federal courts have applied this rule

in the context of the habeas statute of limitations, holding that “[e]quitable tolling is appropriate

where . . . the petitioner has timely filed but in the wrong forum or in a defective way.” Smith v.

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Duncan, 276 F. Supp. 2d 379, 382 (E.D. Pa. 2003); see also, Vrona v. Brigano, 346 F.3d 598, 604

(6th Cir. 2003) (quoting Irwin); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (equitable

tolling appropriate “when a prisoner actively pursues judicial remedies but files a defective pleading

during the statutory period.”).

Here, during the statutory period, petitioner filed a pleading in this Court challenging his

conviction. Although the pleading was captioned with the state court case information and was

titled an application for leave to appeal, petitioner diligently attempted to correct his mistake,

informing the Clerk in response to the Clerk’s form letter that he had intended to file a habeas

petition, and subsequently filing an application on the standard form. Petitioner reasonably believed

that he would have the opportunity to correct his deficiency, both by virtue of the Clerk’s form letter

and by virtue of FED. R. CIV. P. 5(d)(4), which provides that “[t]he clerk must not refuse to file a

paper solely because it is not in the form prescribed by these rules or by a local rule or practice.”

See also, Rule 2, 28 U.S.C. foll. § 2254, advisory committee note to 2004 amendment (FED.R.CIV.

P. 5 provides appropriate means for dealing with an insufficient petition). And petitioner timely

attempted to correct the deficiency in his habeas pleading. Because petitioner filed a timely, albeit

defective, petition, and because petitioner diligently attempted to correct the deficiency in his initial

pleading, petitioner is entitled to equitable tolling of the limitations period.

C. Conclusion

In view of the foregoing, the Court should conclude that petitioner’s application for the writ

of habeas corpus is not barred by the statute of limitations governing habeas petitions. Accordingly,

the Court should deny respondent’s motion for summary judgment. If the Court accepts this

recommendation, the Court should order respondent to file an answer addressing the merits of

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petitioner’s claims.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C.

§ 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver

of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health

& Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir.

1981). Filing of objections which raise some issues but fail to raise others with specificity, will not

preserve all the objections a party might have to this Report and Recommendation. Willis v.

Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation

of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2),

a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the opposing

party may file a response. The response shall be not more than five (5) pages in length unless by

motion and order such page limit is extended by the Court. The response shall address specifically,

and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 11/30/09

The undersigned certifies that a copy of the foregoing

order was served on the attorneys and Williams Lester

Summers of record by electronic means or U.S. Mail on

November 30, 2009.

s/Eddrey Butts 

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