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Petitioner challenges the propriety of the motion, contending that a dismissal under

“Habeas Corpus Rule 4” is inappropriate once a responsive pleading has been ordered. 

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICHARD CONRAD WITBRODT, #272951,

Petitioner,

CASE NO. 2:09-CV-11046

v. HONORABLE PAUL D. BORMAN

BLAINE LAFLER,

Respondent.

__________________________________/

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

(2) DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS,

AND (3) DENYING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Richard Conrad Witbrodt (“Petitioner”), a Michigan prisoner, has filed a pro se petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his

constitutional rights. Petitioner was convicted of two counts of first-degree criminal sexual conduct,

Mich. Comp. Laws § 750.520b(1)(a), following a jury trial in the Bay County Circuit Court in 1998

and was sentenced to concurrent terms of 25 to 40 years imprisonment. In his habeas pleadings,

Petitioner raises claims alleging prosecutorial misconduct, ineffective assistance of trial counsel,

improper denial of request for time to investigate late-endorsed witnesses, cumulative error, and

disproportionate/inaccurate sentence. This matter is before the Court on Respondent’s motion to

dismiss the petition as untimely.1

 For the reasons stated herein, the Court agrees with Respondent

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However, Rule 4 requires that the court undertake a preliminary review of the petition to

determine whether “it plainly appears from the face of the petition and any exhibits annexed to it

that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254

Cases, 28 U.S.C. foll. § 2254. The rule provides for summary dismissal by the court before

service upon the respondent. The statute of limitations is an affirmative defense which can be

raised by the respondent in a motion or answer to the petition. Petitioner’s claim to the contrary

lacks merit. 

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and dismisses the petition for failure to comply with the one-year statute of limitations set forth at

28 U.S.C. § 2244(d). The Court also denies a certificate of appealability and denies leave to proceed

in forma pauperis on appeal.

II. Procedural History

Following sentencing, Petitioner, through counsel, filed an appeal of right with the Michigan

Court of Appeals raising several claims of error. Petitioner also filed a pro per supplemental brief

raising additional claims. The court affirmed Petitioner’s convictions and sentences, but remanded

the case to the trial court for the ministerial task of correcting the statutory reference on the

judgment of sentence. People v. Witbrodt, No. 216730, 2001 WL 690636 (Mich. Ct. App. June 19,

2001) (per curiam unpublished). Petitioner also filed an application for leave to appeal with the

Michigan Supreme Court, which was denied in a standard order. People v. Witbrodt, 465 Mich. 958,

640 N.W.2d 878 (March 4, 2002).

On March 29, 2007, Petitioner, through counsel, filed a motion for relief from judgment with

the state trial court raising several issues, which was denied. People v. Witbrodt, Nos. 98-1264-FH,

98-1265-FH (Bay Co. Cir. Ct. March 30, 2007). Petitioner then filed a delayed application for leave

to appeal with the Michigan Court of Appeals, which was denied “for failure to meet the burden of

establishing entitlement to relief under MCR 6.508(D).” People v. Witbrodt, No. 279144 (Mich. Ct.

App. Jan. 11, 2008) (unpublished). Petitioner also filed an application for leave to appeal with the

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Michigan Supreme Court, which was similarly denied. People v. Witbrodt, 482 Mich. 971, 755

N.W.2d 185 (Sept. 9, 2008).

Petitioner dated his federal habeas petition on March 17, 2009. Respondent filed the instant

motion on September 23, 2009, asserting that the petition should be dismissed for failure to comply

with the one-year statute of limitations applicable to federal habeas actions. Petitioner has filed a

reply to the motion contending that his petition is timely and/or that he is entitled to equitable tolling

of the one-year period.

III. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28

U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA governs the filing date for

this action because Petitioner filed his petition after the AEDPA’s effective date. See Lindh v.

Murphy, 521 U.S. 320, 336 (1997). The AEDPA amended 28 U.S.C. § 2244 to include a one-year

period of limitations for habeas petitions brought by prisoners challenging state court judgments.

The revised 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--

(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

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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).

Petitioner’s convictions became final after the AEDPA’s April 24, 1996 effective date. The

Michigan Supreme Court denied leave to appeal on March 4, 2002. Petitioner then had 90 days in

which to file a petition for writ of certiorari with the United States Supreme Court. See Rule 31(1),

Supreme Court Rules. He did not do so. With regard to the statute of limitations, therefore, his

convictions became final on June 3, 2002. See Lawrence v. Florida, 549 U.S. 327, 333 (2007) (the

time for seeking direct review of a state court conviction includes the time for seeking a writ of

certiorari with the United States Supreme Court). Accordingly, Petitioner was required to file his

federal habeas petition on or before June 3, 2003, excluding any time during which a properly filed

application for state post-conviction or collateral review was pending in accordance with 28 U.S.C.

§ 2244(d)(2).

Petitioner did not file his state court motion for relief from judgment until March 29, 2007.

Thus, the one-year limitations period expired well before Petitioner sought state post-conviction

review. A state court post-conviction motion which is filed following the expiration of the

limitations period cannot toll that period because there is no period remaining to be tolled. See

Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002); Webster v. Moore, 199 F.3d 1256, 1259

(11th Cir. 2000); see also Jurado v. Burt, 337 F.3d 638, 641 (6th Cir. 2003). Petitioner’s 2007-08

state court proceedings did not toll the running of the statute of limitations. The AEDPA’s

limitations period does not begin to run anew after the completion of state post-conviction

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

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Petitioner has not established that the State created an impediment to the filing of his habeas

petition or that his claims are based upon newly-discovered facts or newly-recognized constitutional

rights which have been given retroactive effect. Petitioner asserts that the State created “an

impediment” to the timely filing of his habeas petition because there is no time limit on the filing

of a motion for relief from judgment in the Michigan courts. The fact that the State has chosen not

to place time limits on such motions, however, is irrelevant to the federal statute of limitations. The

State did not prevent Petitioner from filing his motion for relief from judgment in the state trial court

on an earlier date, nor did it preclude him from timely seeking federal habeas review. The language

of the federal statute is clear regarding the calculation of the one-year limitations period and what

actions may serve to toll that period. The State did not create an impediment to the filing of the

petition in this case. Petitioner’s habeas action is untimely under 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 not a jurisdictional bar and is subject to equitable tolling. In Dunlap v. United

States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit 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 this test 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. A petitioner has the burden of demonstrating that he is entitled to

equitable tolling. See Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). “Typically, equitable

tolling applied only when a litigant’s failure to meet a legally-mandated deadline unavoidably arose

from circumstances beyond that litigant’s control.” Jurado, 337 F.3d at 642 (quoting Graham2:09-cv-11046-PDB-CEB Doc # 12 Filed 01/20/10 Pg 5 of 9 Pg ID 1764
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Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)). 

Petitioner has not set forth sufficient circumstances which caused him to institute his federal

habeas action several years after the expiration of the one-year limitations period. Petitioner seems

to assert that his delay in seeking state post-conviction review (and consequently habeas relief) was

due to his lack of knowledge about his remedies, the fact that he had difficulty obtaining legal

counsel and was not represented by counsel until February, 2004, and that it took time to research

trial records and documents to develop his claims. However, the fact that Petitioner is untrained in

the law, was proceeding without a lawyer for a period of time, or may have been unaware of the

statute of limitations for a certain period of time does not warrant tolling. See Allen v. Yukins, 366

F.3d 396, 403 (6th Cir. 2004) (ignorance of the law does not justify tolling); Holloway v. Jones, 166

F. Supp. 2d 1185, 1189 (E.D. Mich. 2001) (lack of professional legal assistance does not justify

tolling); Sperling v. White, 30 F. Supp. 2d 1246, 1254 (C.D. Cal. 1998) (citing cases establishing that

ignorance of the law, illiteracy, and lack of legal assistance do not justify tolling). It is well-settled

that there is no constitutional right to an attorney in post-conviction proceedings. See Coleman v.

Thompson, 501 U.S. 722, 752 (1991); see also Lawrence, supra, 549 U.S. at 336-37 (“Attorney

miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”).

Petitioner has also not shown diligence in seeking habeas relief given that he filed his state

court motion for relief from judgment nearly five years after the completion of his direct appeals.

Petitioner has not provided sufficient explanation as to why it took him so long to research his case

and pursue his state post-conviction remedies and/or seek federal habeas review. While Petitioner’s

conduct may have not been intentionally dilatory, it was not diligent. Lastly, the Court notes that

the absence of prejudice to the respondent is a factor to be considered “only after a factor that might

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justify tolling is identified.” Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003). No such factor

has been identified. Petitioner is not entitled to equitable tolling under Dunlap.

The Sixth Circuit has also 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). See Souter v. Jones, 395 F.3d

577, 588-90 (6th Cir. 2005); see also Knickerbocker v. Wolfenbarger, 212 Fed. Appx. 426 (6th Cir.

2007). 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 (1998)

(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also House v. Bell, 547 U.S. 518, 537-39

(2006). 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. Furthermore, actual innocence means “factual innocence, not mere legal

insufficiency.” Bousley, 523 U.S. at 623. Petitioner has made no such showing. He has thus failed

to demonstrate that he is entitled to equitable tolling of the one-year period. His petition must

therefore be dismissed.

IV. Conclusion

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

petition within the one-year limitations period established by 28 U.S.C. § 2244(d), that he is not

entitled to tolling of the one-year period, and the statute of limitations precludes federal review of

the petition. Accordingly, the Court GRANTS Respondent’s motion to dismiss and DISMISSES

WITH PREJUDICE the petition for a writ of habeas corpus.

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

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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 federal district court denies a habeas claim on procedural grounds

without addressing the claim’s merits, 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. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a plain procedural bar is present

and the district court is correct to invoke it to dispose of the matter, 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. In such a case, no appeal is warranted. Id.

After conducting the required inquiry and for the reasons stated herein, the Court is satisfied

that jurists of reason would not find the Court’s procedural ruling debatable. No certificate of

appealability is warranted in this case and any appeal would be frivolous. See Fed. R. App. P. 24(a).

Accordingly, the Court DENIES a certificate of appealability and DENIES leave to proceed in

forma pauperis on appeal.

IT IS SO ORDERED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: January 20, 2010

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

January 20, 2010.

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S/Denise Goodine 

Case Manager

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