Hawks v. Braman

CHARLES BURWELL HAWKS, Petitioner, v. MELINDA BRAMAN,¹ Respondent.

CASE NO. 2:20-CV-12169

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 29, 2021

HONORABLE VICTORIA A. ROBERTS

OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (ECF NO. 8), DISMISSING PETITION (ECF NO. 1), AND DENYING CERTIFICATE OF APPEALABILITY

On August 12, 2020, Petitioner Charles Burwell Hawks filed a petition for habeas corpus through counsel, pursuant to 28 U.S.C. § 2254. Petitioner is challenging his jury trial convictions and sentence in Sanilac County Circuit Court for multiple counts of first-, second-, and third-degree criminal sexual conduct. (ECF No. 1.) In his petition and in a later-filed supplemental brief in support (ECF No. 3), Petitioner asserts his habeas petition was timely filed. (ECF No. 1, PageID.5; ECF No. 3, PageID.38.) Respondent disagreed and filed a motion to dismiss the petition as time-barred. (ECF No. 6.) The Court concludes that the petition is untimely, and that Petitioner is not entitled to equitable tolling. The petition is dismissed.

I. Background

On February 15, 2017, a Sanilac County Circuit Court jury found Petitioner guilty of four counts of first-degree criminal sexual conduct ("CSC"), one count of second-degree CSC, and two counts of third-degree CSC. Trial Tr., 2/15/17, ECF No. 7-6, PageID.444-45. The state trial court sentenced Petitioner to concurrent prison terms of seventeen to thirty-five years for the first-degree convictions, and seven to fifteen years for the second- and third-degree convictions. Sent. Tr., 4/5/17, ECF No. 7-7, PageID.460.

Petitioner did not file an appeal by right in the Michigan Court of Appeals. On August 17, 2018, he filed a pro se motion for relief from judgment in the state trial court, raising five claims of error. The Court denied it on January 7, 2019. The Michigan Court of Appeals denied leave to appeal. People v. Hawks, No. 347870 (Mich. Ct. App. May 22, 2019); see ECF No. 7-11, PageID.577. The state supreme court also denied leave on December 23, 2019, finding Petitioner had "failed to meet the burden of establishing entitlement to relief under [Mich. Ct. R.] 6.508(D)." People v. Hawks, 505 Mich. 941 (2019). While Petitioner's application for leave to appeal was pending, his habeas attorney filed an appearance in the Michigan Supreme Court on September 15, 2019. See Mich. Sup. Ct. Rec., ECF No. 7-12, PageID.750-51.

The habeas petition was filed through counsel on August 12, 2020. ECF No. 1. The petition raises the following claims:

I. THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW THE DEFENSE TO INQUIRE AS TO THE CIRCUMSTANCES OF THE ALLEGED 'CONFESSION' WHEN IT IS A QUESTION FOR THE JURY AS TO WHETHER THE STATEMENT WAS MADE, WHETHER IT WAS VOLUNTARY AND WHAT WEIGHT TO GIVE THE STATEMENT.

A. THAT THE TRIAL COURT ERRED IN ADMITTING THE PETITIONER'S ALLEGED STATEMENT WHEN THE OFFICER DID NOT HAVE PROBABLE CAUSE TO COMMENCE AN INTERVIEW AND FAILED TO PROVIDE ADEQUATE MIRANDA WARNINGS.

B. THE PETITIONER WAS DENIED A FAIR TRIAL WHEN THE COURT ADMITTED AT TRIAL A STATEMENT PURPORTEDLY MADE BY THE PETITIONER WHERE IT WAS NOT ESTABLISHED THE STATEMENT WAS MADE VOLUNTARILY.

II. THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO FILE A PRETRIAL MOTION CHALLENGING HIS STATEMENT AND AS A RESULT WAS BARRED AT TRIAL FROM INQUIRING AS TO THE CIRCUMSTANCES OF THE STATEMENT.

A. THE PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO MAKE A FULL INVESTIGATION, DEVELOP TRIAL STRATEGY OR PROVIDE EFFECTIVE ASSISTANCE.

III. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW DEFENSE COUNSEL TO WITHDRAW AND REFUSING TO ADJOURN THE TRIAL WHEN THERE WAS A CLEAR BREAK-DOWN IN THE ATTORNEY-CLIENT RELATIONSHIP AND THERE WOULD HAVE BEEN NO PREJUDICE IN ADJOURNING TRIAL.

A. THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW PETITIONER'S TRIAL COUNSEL TO WITHDRAW.

IV. THE TRIAL COURT ERRED WHEN IT DENIED THE PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT ON THE BASIS THAT THE PETITIONER DID NOT HAVE GOOD CAUSE FOR FAILURE TO RAISE THESE GROUNDS ON DIRECT APPEAL AND SUFFERED NO PREJUDICE BECAUSE THE PETITIONER DID NOT FILE ANY REQUEST FOR APPELLANT COUNSEL OR AN APPEAL IN THIS MATTER.

V. THE TRIAL COURT JUDGE ERRED IN REFUSING TO ADDRESS PETITIONER'S CHALLENGE IN HIS MOTION FOR RELIEF FROM JUDGMENT AS TO THE SCORING OF OFFENSE VARIABLES THREE AND THIRTEEN WHEN THERE WAS NO EVIDENCE TO SUPPORT 5 POINTS FOR OFFENSE VARIABLE THREE WHERE THE COMPLAINANT HERSELF TESTIFIED THERE WAS NO PHYSICAL HARM EVEN ALLEGED AND ASSESSED 25 POINTS FOR OFFENSE VARIABLE THIRTEEN WHERE THERE WAS NO

FINDING OF A PATTERN OF FELONIOUS CRIMINAL ACTIVITY INVOLVING THREE OR MORE CRIMES AGAINST A PERSON.

A. THE TRIAL COURT ERRED WHEN IT DENIED THE PETITIONER DUE PROCESS BY ERRONEOUSLY SCORING THE SENTENCING GUIDELINES AND ASSESSING POINTS BASED ON THE ALLEGATION THAT THERE WAS PHYSICAL HARM TO THE COMPLAINANT AND THAT THE PETITIONER WAS ALLEGEDLY A MEMBER OF AN ORGANIZED GROUP.

Supp. Br., ECF No. 3.

Respondent filed a motion to dismiss the petition as untimely, arguing that it was filed six months after the expiration of the applicable one-year statute of limitations. ECF No. 6. Petitioner says that even if the petition was filed late, he is entitled to equitable tolling due to the extraordinary circumstances of the COVID-19 pandemic. ECF No. 8.

II. Legal Standard

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") applies to all habeas petitions filed after the Act's effective date, April 24, 1996, and imposes a one-year limitations period for habeas petitions. 28 U.S.C. § 2244(d)(1). The statute states 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[.]

Id.

A habeas petition filed outside the time period prescribed by this section must be dismissed. Lee v. Brunsman, 474 F. App'x 439, 440 (6th Cir. 2012) (citing Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002)). However, because the AEDPA statute oflimitations is not jurisdictional, it is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (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 timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the burden to demonstrate that she is entitled to equitable tolling, Pace, 544 U.S. at 418, and such relief should be granted sparingly. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010); Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005) (citation omitted).

III. Discussion

A. Finality, the limitations period, and tolling

To resolve the question of whether the petition was filed timely, the Court must first determine when Petitioner's conviction became "final," which dictates when the limitations period began to run. See Williams v. Wilson, 149 F. App'x. 342, 345 (6th Cir. 2005). A state-court judgment becomes final when direct review by the state court ends or when the time to seek direct review expires, whichever comes later. Wilberger v. Carter, 35 F. App'x. 111, 114 (6th Cir. 2002); 28 U.S.C. § 2244(d)(1)(A).

Petitioner was sentenced on April 5, 2017. He then had six months from the date of his sentence pursuant to Michigan Court Rule 7.205(A)(2)(a) to file a delayed application for leave to appeal. Petitioner never filed a direct appeal from his conviction and sentence; thus, the "conclusion of direct review" term of section 2241(d)(1)(A) does not apply. Instead, Petitioner's judgment of sentence became final on October 5, 2017, when the time to file in the Michigan Court of Appeals expired. See Williams v. Birkett,670 F.3d 729, 731 (6th Cir. 2012). Under AEDPA, Petitioner then had one year, until October 5, 2018, to file a timely petition for writ of habeas corpus unless the limitations period was tolled.

Properly filing a post-conviction motion for relief from judgment in the state trial court on August 17, 2018, Petitioner did toll the limitations period with forty-nine days remaining. Scarber v. Palmer, 808 F.3d 1093, 1095 (6th Cir. 2015) (citing 28 U.S.C. § 2244(d)). The period remained tolled while Petitioner timely appealed the trial court's denial of his motion. Id. at 1095-96. The limitations period then resumed running the day after the state supreme court denied Petitioner's request for leave to appeal on December 23, 2019. Id. at 1095.

Petitioner's one-year limitations period expired forty-nine days later, on February 10, 2020. Petitioner filed his habeas petition on August 12, 2020, six months after his deadline.

B. Petitioner's arguments regarding timeliness

To support his argument that his petition was timely, Petitioner contends that he was entitled to one year and ninety days after the December 23, 2019 decision of the Michigan Supreme Court. ECF No. 8, PageID.818. This is incorrect. The one-year time period began at the expiration of his time to seek direct review. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (citing 28 U.S.C. § 2244(d)(1)(A)). Petitioner's properly filed post-conviction motion tolled the limitations period while it was pending in the state courts, but did not reset the clock. Carter v. Klee, 286 F. Supp. 3d 846, 851 (E.D. Mich. 2018) (citing Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001)) ("The AEDPA'slimitations period does not begin to run anew after the completion of state post-conviction proceedings.")

Petitioner next argues that the petition may have been untimely,...