Patricia Plummer v. Millicent Warren

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0194n.06
No. 10-2253
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PATRICIA PLUMMER,
Petitioner-Appellant,
v.
MILLICENT WARREN,
Respondent-Appellee.
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1.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
OPINION
Before: MOORE, SUTTON, and DONALD, Circuit Judges
BERNICE B. DONALD, Circuit Judge. Petitioner-Appellant Patricia Plummer is a
Michigan prisoner who filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The district court denied Plummer’s petition and dismissed it with prejudice, concluding that the
petition was untimely and that Plummer was not entitled to equitable tolling of the limitation period.
Plummer appeals the dismissal of her petition. For the following reasons, we affirm.
I. Background
In 2001, Petitioner-Appellant Plummer was convicted in Genessee County Circuit Court on
two counts of felony murder, Mich. Comp. Laws § 750.316(1)(b), one count of armed robbery, Mich.
Comp. Laws § 750.529, and one count of possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b(1). She was sentenced to two years in prison for the firearm charge

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and consecutive sentences of life imprisonment without parole for the felony murder and armed
robbery counts. Plummer appealed her conviction, challenging the sufficiency of the evidence and
the late endorsement of a prosecution witness. The Michigan Court of Appeals affirmed her
conviction on September 18, 2003, and on March 30, 2004, the Michigan Supreme Court denied her
application for leave to appeal the judgment of the Court of Appeals.
On March 28, 2005, Plummer filed a petition for habeas corpus relief in the Eastern District
of Michigan. Soon thereafter she filed a motion to hold in abeyance and/or dismiss without
prejudice her habeas petition so she could return to state court to federalize her claims and exhaust
state remedies on others. The district court granted the motion to dismiss without prejudice but
declined to hold the case in abeyance. See Plummer v. Davis, 2005 WL 1028239 (E.D. Mich. Apr.
29, 2005). In its order dismissing the petition, the district court explained to Plummer that federal
law created a one-year statute of limitations for a habeas petition filed by a state prisoner. Because
nine months of that period had expired before Plummer filed her habeas petition, Plummer only had
three months remaining. The district court then explained that
[U]pon dismissal of this action without prejudice, Petitioner will have three months
remaining of the one-year period. Assuming that Petitioner proceeds with her state
court remedies in a prompt fashion (before the expiration of the remaining three
months), the statute of limitations will be statutorily tolled while Petitioner pursues
state collateral review. See 28 U.S.C. § 2244(d)(2). At the conclusion of those state
proceedings, Petitioner should be able to return to federal court within the remaining
days of the one-year period.
Id. at *2.
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Plummer waited forty-six days, until June 15, 2005, to file a post-conviction motion with the
Michigan trial court. On June 20, 2005, the Michigan trial court denied her motion. Plummer filed
an application for leave to appeal the denial to the Michigan Court of Appeals, but it too was denied.
On December 28, 2006, the Michigan Supreme Court denied Plummer’s application for leave to
appeal, which ended her state collateral review process.
On September 13, 2007, Plummer filed another habeas petition in federal court, well after
the statute of limitations had expired. With her petition Plummer included a statement of delay
explaining that she had to find help and was not experienced or educated in the law. Respondent
answered the petition both substantively and with a passing reference to the statute of limitations.
In her traverse, Plummer did not respond to Respondent’s statute of limitations defense.
On January 21, 2010, the district court denied Plummer’s petition. Reciting the time line of
Plummer’s claims, the district court pointed out that her petition was filed after the one-year statute
of limitations had expired. Noting that the one-year limitation period is subject to equitable tolling,
the district court applied the five-prong test explained in Dunlap v.United States, 250 F.3d 1001,
1008 (6th Cir. 2001), and determined that Plummer was not entitled to equitable tolling in this case.
On March 24, 2010, Plummer filed a notice of appeal from the district court’s order denying her
habeas petition.
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II. Analysis
Plummer argues that she was entitled to equitable tolling of the statute of limitations because
her physical disabilities prevented her from timely filing her petition. She also alleges that the
district court violated her due process rights by not giving her notice and an opportunity to be heard
on the application of the statute of limitations as a bar to her claim. “[W]e review de novo the
decision of the district court to deny equitable tolling as a matter of law or where the facts are
undisputed.” Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011). “[I]n all other cases, we apply the
abuse of discretion standard.” Dunlap v. United States, 250 F.3d 1001, 1007 n. 2 (6th Cir. 2001).
A. AEDPA’s one year statute of limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies a one-year
statute of limitations to habeas corpus petitions raised by persons in custody pursuant to a state
judgment. 28 U.S.C. § 2244(d)(1). The limitation period runs from the latest of four possible
events. Id. In this case, the event that triggered the beginning of the limitation period was “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. § 2244(d)(1)(A). The limitation period is tolled, however, during the
pendency of any properly filed application for state post-conviction or other collateral review. Id.
§ 2244(d)(2).
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Plummer concedes that she filed her petition after the one-year limitation period had ended,
but the AEDPA statute of limitations is subject to equitable tolling. Holland v. Florida, — U.S. —,
130 S.Ct. 2549, 2560 (2010). Plummer’s petition is barred unless she is entitled to equitable tolling.
B. Equitable tolling standard
Equitable tolling “allows courts to toll a statute of limitations when a litigant’s failure to
meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s
control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (internal quotation marks
omitted). Courts grant equitable tolling “sparingly.” Id. at 784. The petitioner bears the burden of
showing that she is entitled to equitable tolling. McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir.
2003).
This court formerly used a five-factor test when considering whether a petitioner was entitled
to equitable tolling. See Dunlap, 250 F.3d at 1008. The district court relied on this standard when
analyzing whether Plummer was entitled to equitable tolling of the AEDPA limitation period. Due
to developments that occurred after the district court entered its order, the Dunlap standard is no
longer good law. In Holland, the Supreme Court outlined a new two-prong standard for determining
when a habeas petitioner is entitled to equitable tolling. Under Holland, a petitioner must establish
first “that he has been pursuing his rights diligently” and second “that some extraordinary
circumstance stood in his way and prevented timely filing.” 130 S.Ct. at 2562 (internal quotation
marks omitted). This court has explained that “[w]ith Holland now on the books, the ‘extraordinary
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circumstances’ test . . . has become the law of this circuit.” Hall v. Warden, Lebanon Correctional
Institution, 662 F.3d 745, 750 (6th Cir. 2011).
C. Plummer’s arguments for equitable tolling
Having determined the proper standard for equitable tolling, we now apply that standard to
Plummer’s case. Plummer’s primary argument is that her physical disabilities entitled her to
equitable tolling. She also insists that the district court denied her due process by not giving her
notice and an opportunity to be heard before denying her petition as untimely.
1. Notice and opportunity to be heard
Plummer contends that she received no notice that the statute of limitations would be fatal
to her case. Her position is unavailing. The record shows that she either knew or should have
known that her petition was untimely and could be dismissed for that reason.
First, Plummer recognized that her petition was late when she filed it. When the district court
dismissed her original petition, it set forth in detail the time frame within which she would have to
exhaust her state remedies and reassert her claims in federal court. While Plummer did not timely
file her second habeas petition, she did include with it a “Statement of Facts Explaining Delay” that
she signed the same day she filed the petition. The statement reads in relevant part : “My
Application for Leave is delayed because: a. I had to find help. b. I am not experienced or educated
in the law.” While Plummer makes no mention of medical disabilities as an explanation for her
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delay, she nonetheless offered a justification for the tardiness of her filing. Her need to provide a
justification cuts against her argument that she had insufficient notice of the statute-of-limitations
issue.
Second, Respondent raised the statute of limitations as a defense in its response. The
response read: “Respondent now answers the petition and amended petition and requests that both
be denied for the reasons stated in the Argument section herein. In addition, Respondent asserts any
and all available defenses, including the statute of limitations.” While Respondent did not elaborate
on the invocation of the statute of limitations defense, Plummer did not address the issue in her
traverse. Noting that she was “not contending that she was unaware of the statute of limitations or
its possible fatal effects on her petition,” Plummer nonetheless contends that “she was not given
adequate notice that the court would be making that determination based on the Respondent’s
passing reference to the defense in her answer.”
The Supreme Court has explained that a district court may sua sponte dismiss a habeas
petition for untimeliness but only after giving the parties “fair notice and an opportunity to present
their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Plummer is trying to import the
sua sponte standard to a circumstance where the respondent raised the statute of limitations as an
affirmative defense. As to the lack of legal argument or explanation with regard to the statute of
limitations, respondents only need to raise or state the statute of limitations as a defense, not explain
it. See id. at 202 (“Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised
in a defendant’s answer or in an amendment thereto.”); Fed. Habeas Corpus R. 5(b) (response “must
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state whether any claim in the petition is barred by . . . a statute of limitations.”). Respondent raised
the statute of limitations in her response, and the district court considered the defense and Plummer’s
reasons for the delay in filing the petition even though Plummer chose not to respond to the statute
of limitations in her traverse. No additional notice was necessary.
2. Physical disability and entitlement to equitable tolling
Plummer contends that she suffers from severe physical disabilities that are the type of
“extraordinary circumstance” Holland envisions. Affidavits Plummer included in the district court
record suggest that she suffered from migraines, hip deterioration and dislocation, severe pain,
wheelchair confinement, seizures, liver disease, hepatitis C, pneumonia, severe stomach troubles,
and rectal bleeding. According to Plummer she was physically unable to go to the law library,
prepare filings, and could not understand the law. Respondent argues that because Plummer’s
evidence of physical disability was attached to motions for extensions of time, not to her petition or
traverse, it should not be considered in the equitable tolling analysis. We need not answer that
question because even considering the evidence Plummer points to in the record she would not be
entitled to equitable tolling as she cannot demonstrate an extraordinary circumstance.
“Illness—mental or physical—tolls a statute of limitations only if it actually prevents the
sufferer from pursuing his legal rights during the limitations period.” Price v. Lewis, 119 F. App’x
725, 726 (6th Cir. 2005). Plummer’s evidence–affidavits submitted by herself and Donna Trapani,
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another inmate at Plummer’s prison–does not show that she was prevented from pursuing her legal
rights during the limitation period.
In their affidavits, Plummer and Trapani concede that Plummer did not do her own legal
work. Plummer affirmed that “I have always had to have all my legal filings researched and prepared
by others” and “I had to rely on a prisoner law clerk to do all legal work for me including this Writ
of Habeas Corpus pending before the Court.” Trapani stated that “Plummer relies on the law library
clerks to do all her legal work for her.” Because Plummer was not doing her own legal work, her
physical disabilities could not have impacted the timeliness of their filing.
Further, a comparison of Plummer’s federal habeas petition and the petition for collateral
review that she filed with the Michigan trial court demonstrates that she raised the exact same issues
in both. Additional legal work was thus unnecessary. Plummer’s alleged disabilities would not have
prevented her from pursuing her legal rights.
We are not persuaded that the information Plummer points to in the record regarding her
physical disability shows that extraordinary circumstances prevented her from filing her petition.1
Likewise, the district court correctly concluded that the reasons Plummer actually gave for the delay
in filing her petition—namely her need to find help and inexperience in the law—are not
extraordinary circumstances warranting equitable tolling. See Griffin v. Rogers, 399 F.3d 626, 637
Because we find no extraordinary circumstance warranting equitable tolling, we do not1
address the other prong of Holland—whether Plummer was pursuing her rights diligently.
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(6th Cir. 2005) (“ignorance of the law alone is not sufficient to warrant equitable tolling.”); Smith
v. Beightler, 49 F. App’x 579, 580-81 (6th Cir. 2002) (finding that the petitioner was not entitled to
equitable tolling because he was blind and had to rely on others to assist him in accessing the courts).
Accordingly, Plummer was not entitled to equitable tolling of the limitation period.
III. Conclusion
For the reasons stated above, we AFFIRM the judgment of the district court dismissing
Plummer’s petition as untimely.
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