McClendon v. ShermanMcClendon v. Sherman
*KAREN NELSON MOORE, Circuit Judge. Petitioner Demetrius McClendon appeals from the district court‘s grant of summary judgment to the Respondent, arguing that the district court incorrectly determined that McClendon‘s habeas corpus petition was filed outside the statute of limitations provided in
I. BACKGROUND
In November of 1991, McClendon was convicted by a jury on two counts of possession with intent to deliver more than 650 grams of cocaine. He was sentenced to two consecutive terms of life in prison. The Michigan Supreme Court finally denied McClendon‘s direct appeal on August 28, 1995.
On April 23, 1997, McClendon filed a Motion for Relief from Judgment in the state trial court, arguing, among other things, that he had been denied effective assistance of counsel on his direct appeal. That motion for relief was denied, and the Michigan Supreme Court finally denied McClendon‘s
McClendon filed a habeas corpus petition in federal court on November 28, 2000, almost — but not quite — a year after his state court Motion for Relief from Judgment was ultimately denied. The district court granted the Warden‘s motion for summary judgment, ruling that the petition was not filed within the one-year statute of limitations provided for in
McClendon timely appealed, and the district court granted a certificate of appealability to determine whether McClendon‘s petition should be barred as untimely. We have jurisdiction pursuant to
II. ANALYSIS
This case requires us to determine whether Demetrius McClendon‘s delay in filing his petition for habeas corpus will prevent him from obtaining a federal forum to challenge the two life-sentences he received for his drug offense. According to
A. The Statute of Limitations
The principal question in determining whether McClendon complied with the statutory limitation period is when McClendon‘s statute began to run.
McClendon‘s conviction became final on August 28, 1995, and his statute of limitations thus began to run on April 24, 1996. In Payton v. Brigano, 256 F.3d 405 (6th Cir. 2001), cert. denied, 534 U.S. 1135 (2002), we held that a conviction becomes final for
We reject McClendon‘s contention that whenever a prisoner raises an allegation in his state post-conviction proceedings that he was denied the effective assistance of counsel on direct appeal, his conviction does not become final until those state post-conviction proceedings have ended. If McClendon were correct that ineffective assistance of appellate counsel claims are necessarily part of the direct review process, his conviction would not have become final until November 29, 1999, when his Motion for Relief from Judgment was finally denied, and his federal petition would have been timely when he filed it on November 28, 2000. Although McClendon may be correct that it is practically impossible to raise an ineffective assistance of appellate counsel claim during the actual direct appeal, that difficulty does not require, as McClendon suggests, that all ineffective assistance of appellate counsel challenges be treated as direct appeals. McClendon draws this proposition from Payton v. Brigano, 256 F.3d at 409 n.4, and White v. Schotten, 201 F.3d 743 (6th Cir.), cert. denied, 531 U.S. 940 (2000), in which we treated Ohio prisoners’ ineffective assistance of appellate counsel claims as part of the direct review process.
Payton and White do not, however, support the general proposition that when a prisoner raises in state post-conviction proceedings a claim of ineffective assistance of appellate counsel, the prisoner‘s conviction is not considered final until those post-conviction proceedings conclude. Even if the principles of the Payton and White line were not limited to Ohio cases by a unique aspect of Ohio law that forces us to treat ineffective assistance of counsel claims as part of the direct review process, see White, 201 F.3d at 752-53 (citing State v. Murnahan, 584 N.E.2d 1204, 1208 (Ohio 1992), which rules that ineffective assistance of counsel claims cannot be raised in state post-conviction proceedings), those cases make clear that upon the filing of an ineffective assistance claim in state court, the statute of limitations is not restarted, but merely tolled. See Bronaugh v. Ohio, 235 F.3d 280, 286 (6th Cir. 2001); see also Isham v. Randle, 226 F.3d 691, 692-93, 694 (6th Cir. 2000) (treating Ohio prisoner‘s state ineffective assistance of appellate counsel challenge as tolling, though not restarting, the statute of limitations), cert. denied, 531 U.S. 1201 (2001). The conviction is still considered final at the close of the initial direct appellate proceedings. If the rule were otherwise, such that a subsequent motion could constitute part of the direct appeal and thus restart the limitation period, the rule “would severely undercut Congress‘[s] intent in enacting the AEDPA by greatly extending the time in which a petitioner may properly bring a . . . challenge.” Johnson v. United States, 246 F.3d 655, 659 (6th Cir. 2001) (refusing to allow
Thus McClendon‘s conviction became final on August 28, 1995, and the one-year statute of limitations began to run on April 24, 1996. The statute ran for 364 days before McClendon filed a Motion for Relief from Judgment on April 23, 1997. The statute was tolled while this application for state post-conviction relief was pending.
B. Equitable Tolling
The petitioner bears the burden of demonstrating that he is entitled to equitable tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). In analyzing whether a habeas petitioner should be entitled to equitable tolling, we look at the factors laid out in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). See Dunlap, 250 F.3d at 1008-09 (adopting Andrews factors in habeas context). Under Andrews, we consider “(1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one‘s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff‘s reasonableness in remaining ignorant of the notice requirement.” Andrews, 851 F.2d at 151.
McClendon argues that the combination of his lack of notice of the April 24, 1997 deadline, his diligent filing of his habeas petition after his state proceedings had completed, and the lack of prejudice to the Warden warrant equitable tolling of the statute of limitations. With respect to McClendon‘s alleged lack of notice, as McClendon points out, the April 24, 1997 deadline was not formally set until after the limitation period had expired.
Assuming for purposes of summary judgment that McClendon, who initiated his state post-conviction proceedings on April 23, 1997, lacked actual notice of the April 24, 1997 deadline, he was not diligent in pursuing relief. McClendon‘s state court post-conviction proceedings concluded on November 29, 1999. Even if McClendon believed on that day — erroneously, as we hold, supra — that his one-year limitation period under
Comparison with two previous cases supports our conclusion. In Miller v. Collins, 305 F.3d 491 (6th Cir. 2002), we found equitable tolling appropriate for a petitioner who claimed that he lacked notice of the relevant deadline and acted diligently in his pursuit. There, the petitioner argued that he had never received a copy of a state court decision, and thus did not know that it was time for him to proceed to the next stage in his proceedings. Id. at 495-96. The record supported his claim that he lacked knowledge, as he had filed a motion in the state court asking it to proceed to judgment while he thought, erroneously, that his case was still pending. Id. Moreover, once the state court informed the petitioner that it had already ruled, the petitioner filed at the next stage within three weeks. Id. We found his lack of notice and his diligence sufficient to merit equitable tolling.
III. CONCLUSION
Because McClendon‘s conviction became final upon the conclusion of his direct appeal, his statute of limitations began to run on April 24, 1996, and expired on December 1, 1999. Because McClendon did not act diligently in filing his federal habeas corpus petition once he became aware of the deadline, he is not entitled to equitable tolling of the limitation period. We therefore AFFIRM the district court‘s grant of summary judgment to the Respondent.