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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES STEPHAN PINSON,

Petitioner, Civil No. 2:09-13640

HONORABLE NANCY G. EDMUNDS

v. UNITED STATES DISTRICT JUDGE

JOHN BOYNTON,

Respondent,

 /

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF

HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

James Stephan Pinson, (“Petitioner”), presently confined at the Alger Correctional

Facility in Munising, Michigan, has filed a pro se petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254, in which he challenges his conviction for armed robbery, M.C.L.A.

750.529; conspiracy to commit armed robbery, M.C.L.A. 750.157a, two counts of

possession of a firearm during the commission of a felony, M.C.L.A. 750.227b, fleeing and

eluding, third degree, M.C.L.A. 750.479a, felon in possession of a firearm, M.C.L.A.

750.224f, resisting and obstructing a police officer, causing injury, M.C.L.A. 750.81d; and

being fourth felony habitual offender, M.C.L.A. 769.12. Respondent has filed a motion for

summary judgment, contending that petitioner has failed to comply with the statute of

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

For the reasons stated below, the petition for a writ of habeas corpus is SUMMARILY

DISMISSED. 
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I. Background

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

County Circuit Court. Petitioner’s direct appeals with the Michigan courts ended on July

26, 2005, when the Michigan Supreme Court denied petitioner leave to appeal following the

affirmance of his conviction by the Michigan Court of Appeals. People v. Pinson, 473 Mich.

884 (2005). 

On October 26, 2006, petitioner filed a post-conviction motion for relief from

judgment with the trial court pursuant to M.C.R. 6.500, et. seq., which was denied by the

trial court on February 21, 2007. People v. Pinson, No. 03-022986-FC-2 (Saginaw County

Circuit Court, February 21, 2007). Petitioner’s application for leave to appeal to the

Michigan Court of Appeals was dismissed as being untimely, because petitioner failed to

file his application for leave to appeal within twelve months of the trial court’s denial of his

post-conviction motion, as required by M.C.R. 7.205(F)(3). People v. Pinson, No. 283793

(Mich.Ct.App. April 9, 2008); reconsideration den. May 29, 2008. 

On June 4, 2008, petitioner filed a protective petition for writ of habeas corpus with

the United States District Court for the Eastern District of Michigan. On July 8, 2008,

petitioner’s application for habeas relief was held in abeyance by Judge Paul V. Gadola and

the case was administratively closed. Pinson v. Sherry, No. 2008 WL 2714428 (E.D. Mich.

July 8, 2008). The Michigan Supreme Court denied petitioner’s post-conviction appeal on

December 18, 2008. People v. Pinson, 482 Mich. 1119 (2008).

On or about February 19, 2009, petitioner filed a new habeas petition with the United

States District Court for the Western District of Michigan and was given a new case

number. After petitioner corrected a filing fee deficiency, the United States District Court
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for the Western District of Michigan transferred this case to the United States District Court

for the Eastern District of Michigan. Pinson v. Boynton, U.S.D.C. 2:09-CV-43 (W.D. Mich.

September 10, 2009). 

II. Discussion

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.” Sanders v. Freeman, 221 F. 3d 846, 851 (6th Cir. 2000)(quoting Fed.

R. Civ. P. 56(c). To defeat a motion for summary judgment, the non-moving party must set

forth specific facts sufficient to show that a reasonable factfinder could return a verdict in

his favor. Id. The summary judgment rule applies to habeas proceedings. See Redmond

v. Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003). 

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

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

custody pursuant to a judgment of a state court. See Corbin v. Straub, 156 F. Supp. 2d

833, 835 (E.D. Mich. 2001). 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).
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Although not jurisdictional, the AEDPA’s one year limitations period “effectively bars

relief absent a showing that the petition’s untimeliness should be excused based on

equitable tolling and actual innocence.” See Akrawi v. Booker, 572 F. 3d 252, 260 (6th Cir.

2009). 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).

Petitioner’s direct appeal of his conviction ended when the Michigan Supreme Court

denied leave to appeal on July 26, 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 October 24, 2005,

when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Holloway,

166 F. Supp. 2d at 1188. Absent collateral review, petitioner would have until October 24,

2006 to file his habeas petition in compliance with the statute of limitations.

Petitioner filed his post-conviction motion for relief from judgment on October 26,

2006, two days after the one year limitations period had already expired. 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, 156 F. Supp. 2d at 836. However, a

state court post-conviction motion that is filed following the expiration of the limitations

period for seeking federal habeas relief cannot toll that period pursuant to 28 U.S.C. §

2244(d)(2), because there is no period remaining to be tolled. See Hargrove v. Brigano,

300 F. 3d 717, 718, n. 1 (6th Cir. 2002); See also Jurado v. Burt, 337 F. 3d 638, 641 (6th Cir.
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2003). The instant petition is therefore untimely. 

Compounding petitioner’s untimeliness is the fact that after the trial court denied

petitioner’s post-conviction motion on February 21, 2007, petitioner’s application for leave

to appeal was not filed with the Michigan Court of Appeals until February 22, 2008. The

Michigan Court of Appeals dismissed petitioner’s appeal as untimely, because the appeal

had not been filed within twelve months of the trial court’s denial of the motion for relief

from judgment, as required by Michigan law. 

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

purposes 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).

A criminal defendant in Michigan has twelve months from the denial of a motion for relief

from judgment by the trial court to file an application for leave to appeal with the Michigan

Court of Appeals. M.C.R. 6.509; M.C.R. 7.205(F)(3). Petitioner’s untimely application for

leave to appeal the state trial court’s order denying his post-conviction motion would not

toll the limitations period pursuant to § 2244(d)(2), because the application for leave to

appeal was not filed in compliance with Michigan court rules. See Palmer v. Lavigne, 43

Fed. Appx. 827, 829 (6th Cir. 2002). The Michigan Court of Appeals concluded that

petitioner’s application for leave to appeal the denial of his post-conviction motion was

untimely and a federal habeas court must defer to a state court’s ruling as to whether a

post-conviction motion was properly filed. Id.; Israfil, 276 F. 3d at 771-72 (habeas court

must defer to state appellate court’s finding as to whether a habeas petitioner’s application
1 Petitioner and respondent also dispute over whether petitioner adequately complied with Judge

Gadola’s directive to re-file his habeas petition within sixty days of the conclusion of his post-conviction

proceedings. Respondent claims that petitioner did not comply with Judge Gadola’s order because he did

not re-file his habeas petition until June 22, 2009. Petitioner, on the other hand, states that he mailed the

current habeas petition on February 17, 2009, albeit to the wrong district court. It is unnecessary to

resolve this issue because even giving petitioner the benefit of the doubt that he complied with the terms

of Judge Gadola’s order, the current petition is still untimely. 

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to appeal the denial of state post-conviction relief was timely). Finally, because the

Michigan Court of Appeals expressly held that petitioner had not timely appealed the trial

court’s decision, the Michigan Supreme Court’s decision not to review the case is

presumed to rest upon that ground as well. Palmer, 43 Fed. Appx. at 829. Petitioner’s

habeas petition was not filed in compliance with the one year limitations period. 1

The AEDPA’s statute of limitations “is subject to equitable tolling in appropriate

cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). A habeas petitioner is entitled to

equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way’” and prevented the timely filing

of the habeas petition. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

In his reply to the motion for summary judgment, petitioner argues that he is entitled

to equitable tolling of the limitations period because he gave his post-conviction application

for leave to appeal to his prison counselor on February 20, 2008 to be sent by expedited

mail to the Michigan Court of Appeals and that his counselor’s failure to do so resulted in

his post-conviction application for leave to appeal being rejected as untimely.

The first problem with petitioner’s argument is that both he and respondent ignore

the fact that the one year limitations period had already expired by the time that petitioner

initially filed his post-conviction motion for relief from judgment with the state courts.

Equitable tolling does not operate to revive an expired limitations period. See Downs v.
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McNeil, 520 F.3d 1311, 1325 (11th Cir. 2008). “[E]quitable tolling functions to halt an

already running limitations period that has not expired; it does not function to revive a stale

claim.” Lewis v. United Air Lines, Inc., 117 F. Supp. 2d 434, 441 (D.N.J. 2000). 

Moreover, petitioner would be unable to avail himself of the “prison mailbox rule”

enunciated in Houston v. Lack, 487 U.S. 266, 276 (1988) to argue that his state postconviction motion for relief from judgment was filed with the state courts, for purposes of

§ 2244(d)(2), when he allegedly handed his motion to his prison counselor for mailing.

Michigan does not recognize the prison mailbox rule, See Moore v. Michigan Department

of Corrections, 462 Mich. 872, 873; 615 N.W. 2d 212 (2000)(Corrigan, J., concurring);

Walker-Bey v. Department of Corrections, 222 Mich. App. 605, 606; 564 N. W. 2d 171

(1997), nor is it mandated by the federal constitution. The U.S. Supreme Court in Houston

did not hold that the prison mailbox rule was constitutionally required. The rationale of

Houston was not constitutional or equitable in nature; instead, it was based on an

interpretation of the word ‘filed’ in the federal rule and statute governing the timeliness of

notices of appeal. Jenkins v. Burtzloff, 69 F. 3d 460, 461 (10th Cir. 1995). The federal

mailbox rule therefore cannot be applied by a federal habeas court to determine that a

prisoner’s state post-conviction pleading had been timely filed, where the mailbox rule has

been rejected by that state’s appellate courts. See Vroman v. Brigano, 346 F. 3d 598, 603-

04 (6th Cir. 2003).

Petitioner is also not entitled to invoke the prison mailbox rule, because there is no

evidence that petitioner followed the established prison procedures for mailing legal

pleadings by giving his application for leave to appeal to his prison counselor. In United

States v. Bell, 203 F. Supp. 2d 1287, 1291 (S.D. Ala. 2002), the federal district court held
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that under the prison mailbox rule, a pro se federal prisoner’s motion to vacate sentence

which had been filed pursuant to 28 U.S.C. § 2255, was filed on the date that the signed

and executed motion was delivered into the prison’s legal mailbox according to the prison’s

established procedures, not earlier, when the prisoner had delivered the motion to a prison

counselor with no apparent authority to mail the motion. In this case, petitioner has offered

no evidence that his prison counselor had the authority to mail his legal pleadings for him.

Therefore, the mailbox rule is inapplicable to determining the date that motion for relief from

judgment was filed. 

Finally, to the extent that petitioner is arguing lack of prejudice in support of equitable

tolling, absence of prejudice to a respondent is a factor to be considered by a federal court

on habeas review only after a factor which might justify equitable tolling is identified. See

Vroman, 346 F. 3d at 605.

Petitioner further appears to argue that this Court should ignore the limitations period

because his claims have merit. The AEDPA’s statute of limitations must be complied with

by a habeas petitioner before a federal court can address the merits of the habeas petition

itself. See Sweger v. Chesney, 294 F. 3d 506, 518-19 (3rd Cir. 2002). A merits decision is

unnecessary where a district court denies a habeas petition on statute of limitations

grounds. See Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007). Because petitioner’s

habeas application is untimely, the Court would not err in declining to address the merits

of petitioner’s substantive claims.

The one year statute of limitations may be equitably tolled based upon a credible

showing of actual innocence under the standard enunciated in Schup v. Delo, 513 U.S. 298

(1995). See Souter v. Jones, 395 F. 3d 577, 599-600 (6th Cir. 2005). To establish actual
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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.” Id. at 590 (quoting Schlup

513 U.S. at 327). For an actual innocence exception to be credible, such a claim requires

a habeas petitioner to support his or her 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.” Schlup, 513 U.S. at 324;

Souter, 395 F. 3d at 590. The Sixth Circuit further noted that “actual innocence means

factual innocence, not mere legal insufficiency.” Souter, 395 F. 3d at 590 (quoting Bousley

v. United States, 523 U.S. 614, 623 (1998)). Finally, the Sixth Circuit in Souter recognized

the Supreme Court’s admonition that the actual innocence exception should “remain rare”

and “only be applied in the ‘extraordinary case.’” Id. (quoting Schlup, 513 U.S. at 321). 

Petitioner’s case falls outside of the actual innocence tolling exception enunciated

in Souter, because petitioner has presented no new, reliable evidence to establish that he

was actually innocent of the crimes charged. See Ross v. Berghuis, 417 F. 3d 552, 556 (6th

Cir. 2005). Petitioner’s sufficiency of evidence claim cannot be considered by this Court

in determining whether an actual innocence exception exists for purposes of tolling the

statute of limitations period. Redmond, 295 F. Supp. 2d at 773; Grayson v. Grayson, 185

F. Supp. 2d 747, 752 (E.D. Mich. 2002). Likewise, petitioner’s prosecutorial misconduct

claim relates to the fundamental fairness of his trial and not to his actual innocence, and

therefore cannot toll the limitations period based on an actual innocence exception. See

Cannon v. Johnson, 23 Fed. Appx. 218, 220 (6th Cir. 2001). Finally, petitioner’s claim that

the state court misapplied Michigan’s habitual offender statute does not fit within the actual

innocence exception enunciated in Souter for tolling the limitations period. See Craig v.
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White, 227 Fed. Appx. 480, 481-82 (6th Cir. 2007). 

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 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. “The district court must issue

or deny a certificate of appealability when it enters a final order adverse to the applicant.”
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Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.

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,

185 F. Supp. 2d at 753. The Court will also deny petitioner leave to appeal in forma

pauperis, because the appeal would be frivolous. Id.

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.

IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma

pauperis.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: August 17, 2010

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

on August 17, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager