Petition for Writ of Certiorari — Henry T. Liggins, Petitioner v. Bob Vashaw, Warden

s? 'p L

No. 20-1037

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HENRY T. LIGGINS,

Petitioner-Appellant,

v.

BOB VASHAW, Warden,

Respondent-Appellee.

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Apr 29, 2020

DEBORAH S. HUNT, Clerk

ORDER

Before: SUTTON, Circuit Judge.

Henry T. Liggins, a Michigan prisoner proceeding pro se, appeals a district court judgment

denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Liggins has

filed an application for a certificate of appealability, a motion to proceed in forma pauperis, three

memoranda in support of his application, and a motion for discovery.

In March 1997, Liggins was sentenced to 5 to 15 years of imprisonment after pleading

guilty to second-degree criminal sexual conduct. The Michigan Court of Appeals denied his

delayed application for leave to appeal, and the Michigan Supreme Court denied him leave to

appeal. People v. Liggins, 590 N.W.2d 68 (Mich. 1999) (table). In July 2019, Liggins filed a

§ 2254 petition, arguing that his guilty pica was void because the prosecutor did not charge him

with fourth-degree criminal sexual conduct. The district court determined that the § 2254 petition

was untimely, that Liggins was not entitled to equitable tolling, and that he did not make a viable .

claim of actual innocence. Accordingly, the district court denied the § 2254 petition and declined

to issue a certificate of appealability.

A certificate of appealability may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard

when the district court has denied a § 2254 petition on procedural grounds, a petitioner must show

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No. 20-1037

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“that jurists of reason would find it debatable whether the petition 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).

The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of

limitations for filing a federal habeas petition. 28 U.S.C. § 2244(d)(1). Generally, a habeas

petition must be filed within one year of “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A). Liggins’s conviction became final on May 26, 1999, ninety days after the

Michigan Supreme Court denied his application for leave to appeal on February 25, 1999. See

Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Therefore, under § 2244(d)(1)(A), the

statute of limitations expired on May 27, 2000. Liggins is not entitled to statutory tolling under

28 U.S.C. § 2244(d)(2) because he did not file a motion for collateral review until 2011, long after

the statute of limitations had already expired. See Vroman v. Brigano, 346 F.3d 598,602 (6th Cir.

2003). Because the § 2254 petition was not filed prior to May 27, 2000, reasonable jurists would

not debate the district court’s determination that the petition was time-barred under

§ 2244(d)(1)(A).

Section 2254’s statute of limitations may be equitably tolled when a petitioner shows “that

he has been pursuing his rights diligently” and “that some extraordinary circumstance stood in his

way and prevented timely filing.” Hally. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th

Cir. 2011) (quoting Holland v. Florida, 560 U.S. 63 i, 649 (2010)). Even if he were able to show

that extraordinary circumstances prevented the timely filing of his habeas petition, Liggins has

failed to demonstrate that he pursued his rights diligently because he waited almost twenty years

after his conviction became final before filing the § 2254 petition. See Jurado v. Burt, 331 F.3d

638, 644 (6th Cir. 2003). Accordingly, reasonable jurists would not debate the district court’s

determination that Liggins was not entitled to equitable tolling.

In extraordinary cases, a colorable claim of actual innocence may be used as a gateway to

review an otherwise barred constitutional claim. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

No. 20-1037

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In order to show actual innocence based upon new evidence, a petitioner must establish that “in

light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond

a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Because Liggins

offers no newly discovered evidence to support his assertion that he is actually innocent,

reasonable jurists would not debate the district court’s determination that Liggins did not make a

credible showing of actual innocence.

Based upon the foregoing, the court DENIES the application for a certificate of

appealability and DENIES all other pending motions as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case l:19-cv-00592-RJJ-PJG ECF No. 9, PagelD.85 Filed 11/18/19 Page 1 of 9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Henry T. Liggins,

Petitioner,

v.

Case No. l:19-cv-592

Honorable Robert J. Jonker

Gregory Skipper,

Respondent.

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C.

§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must

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;

see 28 U.S.C. § 2243.

If so, the petition must be summarily dismissed. Rule 4; see

Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen

out” petitions that lack merit on their face). A dismissal under Rule 4 includes those

petitions which raise legally frivolous claims, as well as those containing factual

allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 43637 (6th Cir. 1999). The Court may sua sponte dismiss a habeas action as time-barred

under 28 U.S.C. § 2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006). After

Case l:19-cv-00592-RJJ-PJG ECF No. 9, PagelD.86 Filed 11/18/19 Page 2 of 9

undertaking the review required by Rule 4, I conclude that the petition is barred by

the one-year statute of limitations.

Discussion

I.

Factual Allegations

Petitioner Henry T. Liggins is incarcerated with the Michigan Department of

Corrections at the Michigan Reformatory (RMI) in Ionia County, Michigan.

According to the Michigan Department of Corrections Offender Tracking Information

System (OTIS), Petitioner is serving consecutive sentences: a sentence of five to

fifteen years for second-degree criminal sexual conduct (CSC-II) imposed by the

Wayne County Circuit Court on March 7, 1997, following Petitioner’s guilty plea; and.

a sentence of seven years, six months to fifteen years for CSC-II imposed by the

Chippewa County Circuit Court on May 26, 1998, following Petitioner’s guilty plea.

See https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber= 147829 (last

visited November 18, 2019).

Petitioner has twice filed habeas petitions challenging the conviction and

sentence imposed by the Chippewa County Circuit Court.

dismissed as untimely.

Both petitions were

See Liggins v. Bergh, No. 2:08-cv-225 (W.D. Mich. June 18,

2009); Liggins v. Bauman, No. 2:14-cv-120 (W.D. Mich. Dec. 11, 2014).

Petitioner has never challenged his Wayne County Circuit Court conviction

and sentence by way of a federal habeas petition. He filed a delayed application for

leave to appeal in the Michigan Court of Appeals. That application was denied by

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order entered June 5, 1998.1 He then sought leave to appeal in the Michigan

Supreme Court. That court denied leave by order entered February 25, 1999. Id.

Petitioner then waited more than twenty years before filing his habeas petition on

July 18, 2019.

II.

Statute of Limitations

Petitioner’s application is barred by the one-year statute of limitations

provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part

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

1214 (AEDPA). Section 2244(d)(1) 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

the date on which the judgment became final by the

(A)

conclusion of direct review or the expiration of the time for

seeking such review;

the date on which the impediment to filing an application

(B)

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;

the date on which the constitutional right asserted was

(C)

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

1 See

https://courts.michigan.gov/oninions orders/case search/pages/default.aspx?Search

Type=l&CaseNumber=l 12485&CourtType CaseNumber=l (last visited November

18, 2019).

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Case l:19-cv-00592-RJJ-PJG ECF No. 9, PagelD.88 Filed 11/18/19 Page 4 of 9

(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).

In most cases, § 2244(d)(1)(A) provides the operative date from which the oneyear limitations period is measured. Under that provision, the one-year limitations

period runs from “the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review.”

28 U.S.C.

§ 2244(d)(1)(A). Petitioner appealed the judgment of conviction to the Michigan Court

of Appeals and the Michigan Supreme Court. The Michigan Supreme Court denied

his application on February 25, 1999. Petitioner did not petition for certiorari to the

United States Supreme Court. (Am. Pet., ECF No. 5, PageID.43.) The one-year

limitations period, however, did not begin to run until the ninety-day period in which

Petitioner could have sought review in the United States Supreme Court had expired.

See Lawrence v. Florida, 549 U.S. 327, 332-33 (2007); Bronaugh v. Ohio, 235 F.3d

280, 283 (6th Cir. 2000). The ninety-day period expired on May 26, 1999.

Petitioner had one year, until May 26, 2000, to file his habeas application.

Petitioner filed his application on July 18, 2019. Obviously, he filed more than one

year after the period of limitations began to run. Thus, absent tolling, his application

is time-barred.

The running of the statute of limitations is tolled when “a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see also Duncan u.

Walker, 533 U.S. 167, 181-82 (2001) (limiting the tolling provision to only State, and

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not Federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining “properly

filed”). Petitioner suggests that he pursued collateral relief in the state courts; but

he declines to identify when or how long his efforts persisted. Instead, he invites the

Court to review the case filings in the state trial court, the court of appeals, and the

supreme court. The Court has done so.

Based on the dockets of the Wayne County Circuit Court,2 and the appellate

courts,3 there are significant gaps when it is apparent Petitioner was not pursuing

any collateral challenges to the Wayne County conviction. Those gaps often coincide

with periods of time Petitioner was pursuing his direct appeal and collateral attacks

on the Chippewa County conviction. Those gaps total years over the two decades that

have passed since Petitioner was sentenced and foreclose any possibility that tolling

by virtue of collateral attacks might suffice to render Petitioner’s present petition

timely.

The one-year limitations period applicable to § 2254 is also subject to equitable

tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010); Akrawi v. Booker, 572 F.3d

252, 260 (6th Cir. 2009); Keenan v. Bagley, 400 F.3d 417, 420 (6th Cir. 2005). A

petitioner bears the burden of showing that he is entitled to equitable tolling. See

Keenan, 400 F.3d at 420; Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Sixth

Circuit repeatedly has cautioned that equitable tolling should be applied “sparingly”

2 See https://cmspublic.3rdcc.org/CaseDetail.aspx?CaseID=239335 (last visited

October 13, 2019)

3 See https://courts.michigan.gov/opinions orders/case search/pages/default.aspx

(search “Liggins Henry,” last visited Oct. 13, 2019)

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by this Court. See, e.g., Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th

Cir. 2011); Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010); Sherwood v.

Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009). A petitioner seeking equitable tolling of

the habeas statute of limitations has the burden of establishing two elements: “(1)

that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Holland, 560 U.S. at 649 (citing Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005)); Lawrence v. Florida, 549 U.S. 327, 335 (2007); Hall, 662

F.3d at 750; Akrawi, 572 F.3d at 260.

Petitioner has failed to raise equitable tolling or allege any facts or

circumstances that would warrant its application in this case.

The fact that

Petitioner is untrained in the law, was proceeding 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 403-04; see also Craig v. White, 221 F. App’x 480, 482

(6th Cir. 2007); Harvey v. Jones, 179 F. App’x 294, 299-300 (6th Cir. 2006); Martin v.

Hurley, 150 F. App’x 513, 516 (6th Cir. 2005); Fisher v. Johnson, 174 F.3d 710, 714

(5th Cir. 1999) (“[I]gnorance of the law, even for an incarcerated pro se petitioner,

generally does not excuse [late] filing.”). Accordingly, Petitioner is not entitled to

equitable tolling of the statute of limitations.

In McQuiggin v. Perkins, 569 U.S. 383, 391-393 (2013), the Supreme Court

held that a habeas petitioner who can show actual innocence under the rigorous

standard of Schlup v. Delo, 513 U.S. 298 (1995), is excused from the procedural bar

of the statute of limitations under the miscarriage-of-justice exception. In order to

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Case l:19-cv-00592-RJJ-PJG ECF No. 9, PagelD.91 Filed 11/18/19 Page 7 of 9

make a showing of actual innocence under Schlup, a Petitioner must present new

evidence showing that ‘“it is more likely than not that no reasonable juror would have

convicted [the petitioner].’” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at

329 (addressing actual innocence as an exception to procedural default)). Because

actual innocence provides an exception to the statute of limitations rather than a

basis for equitable tolling, a petitioner who can make a showing of actual innocence

need not demonstrate reasonable diligence in bringing his claim, though a court may

consider the timing of the claim in determining the credibility of the evidence of

actual innocence. Id. at 399-400.

In the instant case, although Petitioner may baldly claim that he is actually

innocent, he proffers no new evidence of his innocence, much less evidence that makes

it more likely than not that no reasonable jury would have convicted him. Schlup

513 U.S. at 329. Because Petitioner has wholly failed to provide evidence of his actual

innocence, he is not excused from the statute of limitations under 28 U.S.C.

§ 2244(d)(1). His habeas petition therefore is time-barred.

The Supreme Court has directed the District Court to give fair notice and an

adequate opportunity to be heard before dismissal of a petition on statute of

limitations grounds. See Day, 547 U.S. at 210. This report and recommendation shall

therefore serve as notice that the District Court may dismiss Petitioner’s application

for habeas corpus relief as time-barred. The opportunity to file objections to this

report and recommendation constitutes Petitioner’s opportunity to be heard by the

District Judge.

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III.

Certificate of appealability

Even though I have concluded that Petitioner’s habeas petition should be

denied, under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a

certificate of appealability should be granted. A certificate should issue if Petitioner

has demonstrated a “substantial showing of a denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of

blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467

(6th Cir. 2001) (per curiam). Rather, the district court must “engage in a reasoned

assessment of each claim” to determine whether a certificate is warranted. Id.

I have concluded that Petitioner’s application is untimely and, thus, barred by

the statute of limitations. Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), when

a habeas petition is denied on procedural grounds, a certificate of appealability may

issue only “when the prisoner shows, at least, [1] that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and [2] that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Both showings must be made to warrant the

grant of a certificate. Id.

I find that reasonable jurists could not find it debatable whether Petitioner’s

application was timely. Therefore, I recommend that a certificate of appealability

should be denied.

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Moreover, although I conclude that Petitioner has failed to demonstrate that

he is in custody in violation of the constitution and has failed to make a substantial

showing of a denial of a constitutional right, I would not conclude that any issue

Petitioner might raise on appeal would be frivolous. Coppedge v. United States, 369

U.S. 438, 445 (1962).

Recommended Disposition

For the foregoing reasons, I recommend that the habeas corpus petition be

denied because it is barred by the one-year statute of limitations.

I further

recommend that a certificate of appealability be denied. Finally, I recommend that

the Court not certify that an appeal would not be taken in good faith.

Dated: November 18, 2019

/s/ Phillip J. Green

Phillip J. Green

United States Magistrate Judge

NOTICE TO PARTIES

ANY OBJECTIONS to this Report and Recommendation must be filed and served

within 14 days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR

72.3(b). Failure to file timely objections may constitute a waiver of any further right

of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Am,

474 U.S. 140 (1985).

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Case 1:19-CV-00592-RJJ-PJG ECF No. 10, PagelD.94 Filed 12/17/19 Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HENRY T. LIGGINS,

Petitioner,

File no: l:19-CV-592

v.

HON. ROBERT J. JONKER

GREGORY SKIPPER,

Respondent.

ORDER APPROVING MAGISTRATE'S

REPORT AND RECOMMENDATION

The Court has reviewed the Report and Recommendation filed by the United States

Magistrate Judge in this action on November 18, 2019 (ECF No. 9).

The Report and

Recommendation was duly served on the parties. No objections have been filed under 28 U.S.C. §

636(b)(1)(C).

ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the

Magistrate Judge (ECF No. 9) is approved and adopted as the opinion of the Court.

IT IS FURTHER ORDERED that Petitioner’s habeas petition is DENIED.

IT IS FURTHER ORDERED that this matter is TERMINATED.

The Court discerns no good-faith basis for appeal of this matter.

See McGore v.

Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).

Date:

December 17, 2019

/s/ Robert J. Jonker

ROBERT J. JONKER

CHIEF UNITED STATES DISTRICT JUDGE

Case l:19-cv-00592-RJJ-PJG ECF No. 11, PagelD.95 Filed 12/17/19 Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HENRY T. LIGGINS,

Petitioner,

File no: l:19-CV-592

v.

HON. ROBERT J. JONKER

GREGORY SKIPPER,

Respondent.

JUDGMENT

JUDGMENT is entered in favor of Respondent.

Date:

December 17, 2019

Is/ Robert J. Jonker

ROBERT J. JONKER

CHIEF UNITED STATES DISTRICT JUDGE