UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHRISTIAN JOHNSON,

Petitioner,

v. Case Number: 09-CV-11373

Honorable George Caram Steeh

BLAINE LAFLER,

Respondent.

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OPINION AND ORDER (1) GRANTING RESPONDENT’S MOTION TO DISMISS,

DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND (2) DECLINING TO

ISSUE A CERTIFICATE OF APPEALABILITY AND AN APPLICATION FOR LEAVE

TO PROCEED ON APPEAL IN FORMA PAUPERIS

On April 13, 2009, Petitioner Christian Johnson, a Michigan state inmate currently

incarcerated at the Boyer Road Correctional Facility in Carson City, Michigan, filed a pro se petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation

of his constitutional rights. In 2006, Johnson was convicted of (1) possession with intent to deliver

less than 50 grams of cocaine, MICH.COMP.LAWS § 333.7401(2)(a)(iv),(2) resisting or obstructing

a police officer, MICH.COMP.LAWS § 750.81(d)(1), and (3) maintaining a drug house, MICH.COMP.

LAWS § 333.7405(1)(d). He was sentenced, as a habitual offender, third offense, MICH. COMP.

LAWS § 769.11, to seven to forty years in prison for the possession-with-intent-to-deliver conviction

and two to four years in prison for each of the remaining convictions.

In his pro se pleadings, Johnson raises the following claims: (1) state procedures did not

conform to federal procedures, (2) ineffective assistance of trial and appellate counsel, (3) violation

of his Fourth Amendment rights, (4) violation of Blakely v. Washington, 542 U.S. 296 (2004), and

(5) violation of the preservation of error doctrine.

On December 16, 2009, in lieu of filing his answer, Respondent filed a motion to dismiss,

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arguing that Johnson’s petition was not timely filed under 28 U.S.C. § 2244(d)(1) and should

therefore be dismissed.

After carefully reviewing Johnson’s claims, the Court concludes that the petition was filed

after the applicable limitation period had expired, and that the late petition cannot be saved by the

doctrine of equitable tolling. The Court will therefore dismiss the petition and will decline to issue

a certificate of appealability and an application for leave to proceed on appeal in forma pauperis.

I. BACKGROUND

A. Substantive Facts

This case arises as a result of an incident that occurred on November 22, 2005. On that day,

the Saginaw police officers conducted a surveillance investigation, after receiving complaints that

drugs were being sold out of a certain apartment. While there, the police observed a vehicle

occupied by two individuals stop outside the apartment. One occupant entered the apartment,

returned to the vehicle, and drove off. After stopping the vehicle for a traffic violation, the officers

found a crack cocaine rock in the vehicle. Saginaw Police Sergeant Kevin Revard used information

provided by the occupants of that vehicle to obtain a search warrant for the apartment.

Subsequently, the police executed the warrant during the early morning hours of November 23,

2005. Johnson was in a common area of the building when the police announced the warrant. He

was shot with a taser gun after stepping back and turning toward the apartment, but managed to run

to the apartment before he fell down. The police found another individual in the southwest bedroom

of the apartment.

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The police seized crack cocaine from Johnson’s shirt pocket. Johnson also possessed a key

that fit a lock on a toolbox that contained various amounts of crack cocaine packaged in paper. The

toolbox was located near a scale in the southwest bedroom. Mail addressed to Johnson was found

in the apartment.

B. Procedural Facts

Johnson was subsequently convicted and sentenced. The procedural history is as follows.

Subsequent to his convictions and sentences, Johnson filed an appeal of right with the

Michigan Court of Appeals. In a unpublished opinion, the Michigan Court of Appeals affirmed his

convictions and sentences. People v. Johnson, No. 271410, 2007 WL 3357671 (Mich.Ct.App. Nov.

13, 2007). Johnson did not appeal that matter to the Michigan Supreme Court. Additionally,

Johnson neither filed a writ of certiorari with the United States Supreme Court nor did he file a post

conviction motion in the state courts. Rather, on April 13, 2009, he filed this habeas petition. The

petition is dated April 8, 2009.

II. STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat.

1214 (“AEDPA” or “the Act”) applies to all habeas petitions filed after the Act’s effective date,

April 24, 1996, and imposes a one-year limitations period for habeas-corpus petitions. 28 U.S.C.

§ 2244(d)(1); McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007), cert. denied, --- U.S. ----,

128 S.Ct. 1236, 170 L.Ed.2d 81 (2008). Johnson’s habeas petition was filed after April 24, 1996,

and

thus, the provisions of the AEDPA, including the limitations period for filing an application for

habeas relief, apply to his petition. Lindh v. Murphy, 521 U.S. 320, 337 (1997). Title 28 of the

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United States Code, sections 2244(d)(1)(A) through (D) state in pertinent part:

(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.

Concerning § 2244(d)(1)(A) and a direct appeal from state court, the one-year statute of

limitations does not begin to run until the day after the petition for a writ of certiorari was due in the

Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283-84 (6th Cir. 2000). Under Rule 13 of

the Supreme Court Rules, a petition for a writ of certiorari “is timely when it is filed with the Clerk

of this Court within 90 days after entry of judgment.” SUP.CT.R.13. The statute of limitations may

be tolled statutorily by a properly filed motion for post-conviction relief, or equitably by the Court,

under limited circumstances.

Additionally, under § 2244(d)(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

tolls any period of limitation contained in the statute. A post-conviction relief petition is “properly

filed” under the statute if it meets the applicable state rules governing filing. Artuz v. Bennett, 531

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U.S. 4, 8 (2000). However, tolling is effective only when collateral review is properly sought within

the limitations period. Id.

Concerning a petition for state post-conviction relief, the one-year statute of limitations is

tolled during the time period between the state appellate court’s decision and the state supreme

court’s decision concerning the petition. Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Matthews

v. Abramajtys, 319 F.3d 780, 787-88 (6th Cir. 2003). However, a properly filed application for state

post-conviction relief, while tolling the statute of limitations, does not start a new limitations period.

Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). The United States Supreme Court has held

that, after completion of state court collateral review, the statute of limitations is not tolled during

the pendency of a certiorari petition in the United States Supreme Court seeking review of the denial

of state post-conviction relief. Lawrence v. Florida, 549 U.S. 327, 329 (2007).

III. DISCUSSION

A. Timeliness of Petition

In this case, Johnson did not file his application for a writ of habeas corpus within the statute

of limitations period. Here, the Michigan Court of Appeals affirmed Johnson’s convictions on direct

review on November 13, 2007. Under Mich.Ct.R. 7.302(C)(2), Johnson would have had fifty six

days to file an application for leave to appeal with the Michigan Supreme Court following the denial

of any appeal by the Michigan Court of Appeals. Rice v. Trippett, 63 F.Supp.2d 784, 787 (E.D.

Mich. 1999). Because Johnson did not file a timely application for leave to appeal his conviction

with the Michigan Supreme Court, his conviction became final, for purposes of § 2244(d)(1)(A), on

January 8, 2008, when the time for seeking leave to appeal with the Michigan Supreme Court

expired. See Brown v. McKee, 232 F.Supp.2d 761, 765 (E.D. Mich. 2002); Erwin v. Elo, 130

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Normally, the one year statute of limitations does not begin to run until the ninety day

time period for filing a petition for writ of certiorari in the United States Supreme Court has

expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). In this case, however,

Johnson would not be entitled to have the ninety day time period for seeking a writ of certiorari

added to the calculation of the limitations period, because his failure to file a timely application

for leave to appeal to the Michigan Supreme Court divested the United States Supreme Court of

jurisdiction to grant a writ of certiorari. See Eisermann v. Penarosa, 33 F.Supp.2d 1269,

1272-73, n. 5 (D. Haw. 1999) (citing to Flynt v. Ohio, 451 U.S. 619 (1981); Street v. New York,

394 U.S. 576 (1969)).

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F.Supp.2d 887, 889 (E.D. Mich. 2001).1

 Thus, the statue of limitations began to run the next day,

on January 9, 2008. Johnson thus had until January 9, 2009, in which to file his habeas petition.

Johnson’s habeas petition was dated April 8, 2009 and filed April 13, 2009–three months after the

limitations period had already expired. Against that backdrop, the Court concludes that Johnson’s

habeas petition was filed untimely.

In his reply to Respondent’s motion, Johnson argues that his petition is not barred by the

statute of limitations because direct review does not conclude at a state intermediate court. Johnson

however is incorrect in his interpretation of the law. Johnson also argues that he is actually

innocent, because he has served the entire statutory maximum of four years and therefore he is

actually innocent of the offense accounting for the balance of his prison sentence. He essentially

argues that, if the Court fails to address his claims, a miscarriage of justice would occur. The Court

finds those arguments misplaced and concludes that Johnson is not entitled to equitable tolling.

B. Equitable Tolling

 The United States Supreme Court has not yet decided whether the statute of limitations for

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However, the United States Supreme Court recently granted certiorari in Holland v.

Florida, No. 09-5327, 130 S.Ct. 398 (2009), where it may decide whether equitable tolling is

applicable to AEDPA’s statute of limitations.

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habeas actions is subject to equitable tolling.2 Pace v. DeGuglielmo, 544 U.S. 408, 418 n. 8 (2005).

However, most circuits, including the Sixth Circuit, have determined that the one-year limitations

period can be subject to equitable tolling. See Griffin v. Rogers, 308 F.3d 647, 652 (6th Cir. 2002).

The applicability of equitable tolling on grounds of actual innocence is likewise undecided by the

Supreme Court but recognized by the Sixth Circuit. Souter v. Jones, 395 F.3d 577, 599 (6th Cir.

2005). Although the Supreme Court has not considered the question of equitable tolling in habeas

cases, it has determined that, if equitable tolling is available in habeas challenges to state-court

convictions, a litigant must show (1) that he has been pursuing his rights diligently and (2) that some

extraordinary circumstances stood in his way. Pace, 544 U.S. at 418.

In Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit held

that the test to determine whether equitable tolling of the habeas limitations period is

appropriate is the five-factor analysis set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The

factors which the Court is to consider are:

(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.

Dunlap, 250 F.3d at 1008. “[T]hese factors ‘are not necessarily comprehensive or always relevant;

ultimately every court must consider an equitable tolling claim on a case-by-case basis.’” Keenan

v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005) (quoting King v. Bell, 378 F.3d 550, 553 (6th

Cir.2004)). “In essence, the doctrine of equitable tolling allows federal courts to toll a statute of

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limitations when ‘a litigant’s failure to meet a legally-mandated deadline unavoidably arose from

circumstances beyond that litigant’s control.’” Keenan, 400 F.3d at 421 (quoting

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir.2000));

see Pace, 544 U.S. at 418. The Sixth Circuit has repeatedly cautioned that equitable tolling should

be granted “sparingly.” Keenan, 400 F.3d at 420 (“Equitable tolling is permissible under the

[AEDPA], although rare.”) (Citation omitted). A petitioner has the burden of demonstrating that he

is entitled to equitable tolling. Griffin, 308 F.3d at 653.

Ignorance of the law, illiteracy, and lack of legal assistance do not amount to grounds for

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

1331, 1335 (6th Cir. 1991)) (“[I]gnorance of the law alone is not sufficient to warrant equitable 

tolling.”); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (Inmate’s lack of legal training, his

poor education, or even his illiteracy does not give a court reason to toll the statute of limitations).

The Sixth Circuit has recently held that a credible claim of actual innocence may equitably

toll the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1). Souter, 395 F.3d at 588-

90. As the Souter Court explained, where a petitioner, in order to support a claim of actual

innocence in a collateral proceeding “can demonstrate that it is more likely than not that no

reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner should be

allowed to pass through the gateway and argue the merits of his underlying constitutional claims.”

Souter, 395 F.3d at 602. A valid claim of actual innocence requires a petitioner “to support his

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

evidence, trustworthy eyewitness account, or critical physical evidence–that was not presented at

trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Furthermore, actual innocence means “factual

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innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).

Here, the Court finds that Johnson has failed to establish that he diligently pursued his rights,

given that he failed to file his state appeal with the Michigan Supreme Court and given that he failed

to file any state post-conviction motions. He has failed to allege or establish that he was not aware

of the filing requirements regarding his habeas petition. Thus, the Court finds that Johnson has

failed to establish that he is entitled to equitable tolling.

The Court also finds that Johnson is not entitled to equitable tolling under Souter, as he has

neither alleged nor met the stringent standard for establishing a credible claim of actual innocence.

For those reasons, the Court finds that Johnson is not entitled to habeas-corpus relief.

C. Certificate of Appealability

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

of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §§ 2253(c)(1)(A),

(B). 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 “sho[w] 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 procedural bar is present requiring the dismissal of

Johnson’s habeas petition, and no certificate of appealability is therefore warranted. Nor should

Johnson be granted leave to proceed on appeal in forma pauperis. See Fed. R. App. P. 24(a).

IV. CONCLUSION

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Accordingly, IT IS ORDERED that Respondent’s “Motion to Dismiss” [dkt. # 11] is

GRANTED, and Petitioner’s “Petition for Writ of Habeas Corpus” [dkt. # 1] is DISMISSED with

prejudice.

IT IS FURTHER ORDERED that the Court DECLINES to issue Petitioner a certificate

of appealability and an application for leave to appeal in forma pauperis.

Dated: February 5, 2010

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

February 5, 2010, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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