UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERRY WILSON, #137914,

Petitioner,

CASE NO. 2:09-CV-12939

v. HONORABLE PATRICK J. DUGGAN

HUGH WOLFENBARGER,

Respondent.

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OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

AND DENYING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

At a session of said Court, held in the U.S. District

Courthouse, Eastern District

 of Michigan on March 22, 2010. 

PRESENT: HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Michigan prisoner/parolee Terry Wilson (“Petitioner”) has filed a pro se petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his

state criminal conviction and sentence. Hugh Wolfenbarger (“Respondent”), through

counsel, has filed a motion to dismiss the petition for failure to comply with Rule 11.2 of

the Local Rules for the Eastern District of Michigan and for failure to comply with the

one-year statute of limitations applicable to federal habeas actions. For the reasons set

forth herein, the Court grants Respondent’s motion and dismisses the habeas petition on
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Petitioner filed two prior habeas petitions in this District that were dismissed without

prejudice for failure to exhaust state court remedies. The first case was filed on March

28, 2001 and dismissed on April 6, 2001. See Wilson v. Bouchard, No. 01-CV-71209-DT

(E.D. Mich. April 6, 2001). The second case was filed on January 2, 2002 and dismissed

on January 30, 2002. See Wilson v. Andrew, No. 02-CV-70261-DT (E.D. Mich. Jan. 30,

2002). Those cases do not affect the timeliness of the instant petition as they concluded

before Petitioner’s conviction became final.

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statute of limitations grounds. The Court also denies a certificate of appealability and

denies Petitioner leave to proceed in forma pauperis on appeal.

I. Facts and Procedural History

On January 15, 2002, Petitioner pleaded guilty to first-degree retail fraud in the

Circuit Court for Oakland County, Michigan, and was sentenced as a fourth habitual

offender to a term of imprisonment of one year six months to ten years. Petitioner filed a

delayed application for leave to appeal with the Michigan Court of Appeals, which was

dismissed by stipulation. People v. Wilson, No. 242258 (Mich. Ct. App. Aug. 1, 2002)

(unpublished). Petitioner did not seek leave to appeal with the Michigan Supreme Court. 

(See Doc. 14 Ex. 1 [Aff. of Corbin R. Davis, Michigan Supreme Court Clerk].)

In July and December 2002, Petitioner filed motions for relief from judgment in

the state trial court. The latest of those motions was denied on February 8, 2006 and

reconsideration was denied on February 17, 2006. (Doc. 13-1 [Oakland Co. docket

sheet].) Petitioner did not seek leave to appeal with the Michigan appellate courts. (Id.)

Petitioner filed the present petition for a writ of habeas corpus on July 24, 2009.1

In his petition, he raises claims concerning the voluntariness of his plea, the voluntariness

of his confession, illegal search and seizure, self-incrimination, prosecutorial misconduct,
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Rule 11.2 states:

Every attorney and every party not represented by an attorney must

include his or her contact information consisting of his or her

address, e-mail address, and telephone number on the first paper

that person files in a case. If there is a change in the contact

information, that person promptly must file and serve a notice with

the new contact information. The failure to file promptly current

contact information may subject that person or party to appropriate

sanctions, which may include dismissal, default judgment, and

costs.

E.D. Mich. LR 11.2

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double jeopardy, and the effectiveness of counsel. As indicated earlier, Respondent has

filed a motion to dismiss the petition for failure to comply with Local Rule 11.22

 and the

one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Petitioner has not filed

a reply to the motion.

II. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified

at 28 U.S.C. §§ 2241-2255, became effective on April 24, 1996. The AEDPA governs

the filing date for this case because Petitioner filed his pleadings after the statute’s

effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068 (1997). 

The AEDPA establishes a one-year limitations period for habeas petitions brought by

prisoners challenging state court judgments. Specifically, the statute 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– 
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(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.

(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 shall not be

counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). Absent exceptions discussed below, a habeas petition filed outside

the time period prescribed by this section must be dismissed. See Isham v. Randle, 226

F.3d 691, 694-95 (6th Cir. 2000) (dismissing case filed 13 days after the limitations

period expired); Wilson v. Birkett, 192 F. Supp. 2d 763, 765 (E.D. Mich. 2002).

Petitioner’s direct appeal in the Michigan Court of Appeals was dismissed on

August 1, 2002. He then had 56 days to file an application for leave to appeal in the

Michigan Supreme Court. See Mich. Ct. R. 7.302(C)(2); Rice v. Trippett, 63 F. Supp. 2d

784, 787 (E.D. Mich. 1999). He did not do so. Accordingly, Petitioner’s conviction

became final on September 26, 2002, 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.
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There may have been days within this period when Petitioner did not actually have a motion

pending in the state court and additional days of the one-year limitations period would have

run during that time. Such time would further shorten the one-year period, but is

inconsequential to the Court’s ruling.

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Mich. 2002). Accordingly, Petitioner was required to file his federal habeas petition by

September 26, 2003, excluding any time during which a properly filed application for

state post-conviction or collateral review was pending in accordance with § 2244(d)(2).

Petitioner filed motions for relief from judgment in the trial court in July and

December 2002. One of those motions remained pending until February 17, 2006.3

Petitioner then had, at the most, one year or until February 17, 2007, to pursue an appeal

with the Michigan Court of Appeals. See Mich. Ct. R. 6.509(A). He did not do so. 

Therefore, Petitioner had one year from February 17, 2007, to seek federal habeas relief. 

He did not file the present petition until July 24, 2009– well after the one-year period

expired. His petition therefore is untimely.

Petitioner does not assert that the State created an impediment to filing his habeas

petition or that his claims are based upon newly-discovered evidence or newly-created

rights which would warrant habeas relief. His habeas action is thus untimely under the

statute of limitations set forth at 28 U.S.C. § 2244(d).

The United States Court of Appeals for the Sixth Circuit has determined that the

one-year limitations period is subject to equitable tolling. In Dunlap v. United States, 250

F.3d 1001, 1008-09 (6th Cir. 2001), the court ruled that the test to determine whether

equitable tolling of the habeas limitations period is appropriate is the five-part test set

forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of the test are:
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(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. “These factors are not necessarily comprehensive and they 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). A petitioner has the burden of

demonstrating that he is entitled to equitable tolling. See Allen v. Yukins, 366 F.3d 396,

401 (6th Cir. 2004); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). “Typically,

equitable tolling applies only when a litigant’s failure to meet a legally-mandated

deadline unavoidably arose from circumstances beyond that litigant’s control.” Jurado v.

Burt, 337 F.3d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks

Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)).

Petitioner has not set forth sufficient circumstances to justify equitable tolling in

this case. The fact that Petitioner is untrained in the law, had to proceed without a lawyer,

or may have been unaware of the statute of limitations for a certain period does not

warrant tolling. See Allen, 366 F.3d at 403 (ignorance of the law does not justify tolling);

Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (illiteracy does not justify tolling);

Holloway v. Jones, 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001) (lack of legal

assistance does not justify tolling). Any miscalculation or misinterpretation of the plain

language of § 2244(d) also does not constitute an extraordinary circumstance sufficient to
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justify equitable tolling of the one-year period. See Fugate v. Booker, 321 F. Supp. 2d

857, 861 (E.D. Mich. 2004) (citing Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000)).

Moreover, Petitioner has not shown diligence in seeking habeas relief given that he failed

to properly pursue his direct appeals and post-conviction appeals in the state courts, and

then filed the instant petition 17 months after the expiration of the one-year period. Given

such circumstances, the Court concludes that Petitioner is not entitled to equitable tolling

under Dunlap.

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

toll the one-year statute of limitations set forth in § 2244(d)(1). See Souter v. Jones, 395

F.3d 577, 588-90 (6th Cir. 2005). As explained in Souter, to support a claim of actual

innocence, a petitioner in a collateral proceeding “must demonstrate that, in light of all

the evidence, it is more likely than not that no reasonable juror would have convicted

him.” Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998) (quoting

Schlup v. Delo, 513 U.S. 298, 327-28, 115 S. Ct. 851, 867-68 (1995)). 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, 513 U.S. at 324, 115 S. Ct. at 865. Furthermore, actual innocence means “factual

innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623, 118 S. Ct. at 1611. 
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Given this determination, the Court finds it unnecessary to address Respondent’s

alternate argument for dismissal based on Local Rule 11.2.

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Petitioner has made no such showing. His petition therefore is untimely and must be

dismissed.4

III. Conclusion

Based on the foregoing analysis, the Court concludes that Petitioner failed to file

his habeas petition within the AEDPA’s one-year limitations period and he is not entitled

to statutory or equitable tolling of that period. The statute of limitations therefore

precludes federal review of the petition. The Court therefore is granting Respondent’s

motion to dismiss.

Before Petitioner may appeal this Court’s dispositive decision, a certificate of

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A

certificate of appealability may issue “only if the applicant has made 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 addressing the merits, a

certificate of appealability should issue only if it is shown 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, 484-85, 120

S. Ct. 1595, 1604 (2000). The Court concludes that jurists of reason would not find its

procedural ruling incorrect. The Court further concludes that any appeal of the Court’s

decision would be frivolous and cannot be taken in good faith. See Fed. R. App. P. 24(a).
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Accordingly,

IT IS ORDERED, that Respondent’s motion to dismiss is GRANTED;

IT IS FURTHER ORDERED, that a certificate of appealability shall not issue

and Petitioner is denied leave to proceed in forma pauperis on appeal because such an

appeal would be frivolous and cannot be taken in good faith.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Terry Wilson, #137914

c/o Pontiac Parole Office

Jason Furst, Carolynn Wilson

1025 N. Perry St.

Pontiac, MI 48340

Laura A. Cook, Esq.