UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PERRY DAVIS

Petitioner,

CASE NO. 09-10560

v. HONORABLE DENISE PAGE HOOD

LLOYD RAPELJE, 

Respondent.

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ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Respondent’s Motion for Summary Judgment [Docket

No. 4, filed on October 26, 2009]. Respondent moves for summary judgment on the grounds

that the governing statute of limitations bars review of Petitioner’s habeas petition. Petitioner

filed a response on January 26, 2010 [Docket No. 9, filed on January 26, 2010].

On or around May 27, 1998, Petitioner was convicted of two counts of first-degree

murder. He was subsequently sentenced to life in prison without parole. Petitioner filed an

appeal of right with the Michigan Court of Appeals. His conviction was affirmed on June 11,

1992. Petitioner filed an application for leave to appeal in the Michigan Supreme Court. His

application was denied on December 30, 1992. He filed a motion for reconsideration of this

decision, which was denied on 1993.

Petitioner filed a motion for relief from judgment in the Macomb County Circuit Court

on March 8, 2005. The motion was denied on October 13, 2006. Petitioner filed a delayed

application for leave to appeal, which was denied June 18, 2007. Petitioner filed a motion for

reconsideration, which was denied by the Court of Appeals on July 24, 2007. His application for

leave to appeal was denied on December 28, 2007 by the Michigan Supreme Court and his

subsequent motion for reconsideration was denied February 19, 2008. Petitioner filed his habeas
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petition on February 13, 2009.

Petitioner argues that, because the Michigan Supreme Court denied Petitioner’s motion

for reconsideration on February 19, 2008, and his petition was filed on February 13, 2009, his

petition is timely. However, Plaintiff was convicted prior to the enactment of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). 

The AEDPA amended 28 U.S.C. § 2244(d)(1)(A) to include a new oneyear period of limitations for habeas petitions brought by prisoners

challenging state court judgments. See 28 U.S.C. § 2244(d)(1)(A). 

For prisoners . . . whose convictions were finalized prior to enactment

of the AEDPA, this Circuit has ruled that they have one additional year

after the Act’s effective date to file a habeas petition. . . . Therefore, 

Cook had until April 24, 1997 to file his habeas petition.

Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002). The statute of limitations for Petitioner to

file his habeas claim ran out on April 24, 1997– almost eight years before Petitioner filed his

motion for relief from judgment in Macomb County Circuit Court. 

Petitioner claims he falls under 28 U.S.C. § 2244(d)(1)(D), which allows the limitations

period to run from “the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.” However, as Respondent

argues in his motion, Petitioner never sets forth any newly-discovered factual predicates that

would toll the statute of limitations in his case.

Equitable tolling generally applies when a petitioner demonstrates “(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). Petitioner argues ineffective assistance of

appellate counsel, presumably to excuse his procedural default in this case. However, the

alleged appellate errors do not excuse his failure to raise his claim during the one-year grace

period cited in Cook. After the AEDPA statute was enacted, Petitioner had one year to raise the

errors, which Petitioner states were “significant and obvious.” Petitioner’s Answer and Brief in

Opposition to Defendant’s Motion for Summary Judgment at 5. Petitioner first raised his habeas
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claims in a motion for relief from judgment in 2005. His motion and subsequent appeals did not

delay the date on which the judgment became final. Payton v. Brigano, 256 F.3d 405, 408 (6th

Cir. 2001). Nor did resolution of the motions and related appeals cause the statute to begin

running anew. Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001). 

Petitioner also argues the statute of limitations should be tolled in this case because he is

actually innocent. “To establish actual innocence, ‘a petitioner must show that it is more likely

than not that no reasonable juror would have found petitioner guilty beyond a reasonable

doubt.’” Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005) quoting Schlup v. Delo, 513 U.S.

298, 327 (1995). “To be credible, such a claim requires petitioner to support his allegations of

constitutional error with new reliable evidence–whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence–that was not presented at trial.” 

Id. (internal quotations omitted). Petitioner claims he has maintained his actual innocence “from

the beginning.” However, Petitioner does not argue any new facts or show any new evidence to

support his actual innocence.

For the reasons set forth above,

IT IS ORDERED that Respondent’s Motion for Summary Judgment [Docket No. 4,

filed on October 26, 2009] is GRANTED.

IT IS FURTHER ORDERED that Petitioner’s Petition for Habeas Corpus is

DISMISSED.

S/Denise Page Hood 

Denise Page Hood

Dated: September 28, 2010 United States District Judge

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

on September 28, 2010, by electronic and/or ordinary mail.

S/William F. Lewis 

Case Manager