OPINION AND ORDER DENYING RELIEF UNDER 28 U.S.C. § 2254

PAUL L. MALONEY, Chief District Judge.

This matter is before the Court on Petitioner's motion to apply equitable tolling to allow him to pursue his habeas petition against the State of Michigan under 28 U.S.C. § 2254. (ECF No. 1.) Prior to this Opinion and Order, this Court held an evidentiary hearing to ascertain whether Mr. Townsend was entitled to equitable tolling for his untimely petition based on mental incompetence grounds. For the reasons discussed herein, Petitioner's motion to vacate, set aside, or correct sentence will be DENIED as time barred.

I. BACKGROUND

This matter is before the court in the aftermath of an evidentiary hearing concerning Petitioner's equitable tolling claim. Petitioner, Mr. Townsend, claims that his mental illness was an extraordinary circumstance that prevented him from timely filing his § 2254 habeas petition.

Mr. Townsend is now discharged following state convictions for carrying a concealed weapon and being a fourth-felony offender. His sentence was imposed under a Cobbs plea agreement on March 2, 2009, which required a sentence of 12 months in county jail and 4 years probation, but no prison time. The sentence was amended on May 8, 2009 when he was placed in the K-Pep program due to jail overcrowding. He was not represented by counsel when the amended sentence was imposed. Mr. Townsend then violated his probation and was sentenced to a prison term of 3 to 20 years on 3, 2009. Mr. Townsend filed an application for leave to appeal on unknown grounds, but the Michigan Court of Appeals denied leave to appeal on May 27, 2009. He did not seek leave to appeal his conviction or sentence to the Michigan Supreme Court.

Nearly two years later, Mr. Townsend filed a motion for relief from judgement on March 30, 2011, asserting that the trial court violated his Cobbs agreement, due process, and his Sixth Amendment right to counsel when it imposed the amended sentence that included prison time. The trial court denied the motion on April 4, 2011, and the Court of Appeals denied leave to appeal on Court likewise denied leave to appeal on June 25, 2012, and denied reconsideration on September 24, 2012.

Mr. Townsend filed this habeas petition on May 2, 2013, raising the same grounds for relief: (1 the amended sentence violated the terms of his Cobbs agreement, (2) the amended sentence was imposed in violation of due process, and (3) Mr. Townsend was deprived of the assistance of counsel when the amended sentence was imposed and effective assistance of counsel on direct appeal. On June 26, 2013, Magistrate Judge Scoville issued a report and recommendation that found Mr. Townsend's habeas action time barred by the one-year statute of limitations in AEDPA, 28 U.S.C. § 2244(d Report and Recommendation also found that Mr. Townsend was not entitled to equitable tolling based on his lack of legal training, legal assistance, or awareness of the statute of limitations, and that Mr. Townsend did not allege actual innocence in order to excuse the procedural bar. Mr. Townsend filed an objection to the Report and Recommendation, alleging that he suffers from mental illness and that his mental illness, combined with unscrupulous "jailhouse lawyers," prevented him from meeting the one-year deadline for combined with unscrupulous "jailhouse lawyers," prevented him from meeting the one-year deadline for habeas filings, entitling him to equitable tolling.

This Court issued an order rejecting the Report and Recommendation on July24, 2013. (ECF No. 6.) That order found that Mr. Townsend was not entitled to equitable tolling based on the bad legal advice from other inmates. However, following Ata v. Scutt, 662 F.3d 736 (6th Cir. 2011), this Court found that Mr. Townsend's mental illness could be a basis to apply equitable tolling, and that he provided sufficient evidence of his mental illness that was not refuted by the record to warrant a hearing on the issue. See Ata, 662 F.3d at 742 (directing district courts to (1) consider "if the factual allegations are sufficient to support equitable tolling," and (2) determine if the assertions are refuted by the state court record or are meritless).

Mr. Townsend presented an MDOC treatment plan from November 17, 2010 that states he suffers from bipolar disorder and antisocial personality disorder, and he claims that he suffers from episodes of delusional thinking. That report, with Mr. Townsend's claim that his mental state made him incapable of filing an application for leave to appeal to the Michigan Supreme Court, was enough evidence to warrant a hearing to allow Petitioner to prove his claims. See id. ("[A]n evidentiary hearing is required when sufficiently specific allegations would entitle the petitioner to equitable tolling on the basis of mental incompetence which caused the failure to timely file."). The order made clear that Mr. Townsend was not necessarily entitled to equitable tolling, but that a hearing was necessary to determine if Mr. Townsend could prove that his mental illness caused his late filing.

II. LEGAL FRAMEWORK

AEDPA imposes a one-year statute of limitations on habeas petitions in 28 U.S.C. § 2244. However, that statute of limitation is not jurisdictional, and does not require dismissal of all cases where the clock has run. Holland v. Florida, 130 S.Ct. 2549, 2561 (2010). The one-year limit can be equitably tolled "in appropriate cases" if the petitioner shows that (1) "he has been pursuing his rights diligently," and (2) "some extraordinary circumstance stood in his way." Id. at 2562. Mental illness can be such an extraordinary circumstance if the petitioner shows "that (1) he is mentally incompetent and (2) his mental incompetence caused his failure to comply with AEDPA's statute of limitations." Ata v. Scutt, 662 F.3d at 742. Mental impairment does not automatically toll the limitations period, but the court may grant equitable tolling if there is a causal link between the mental condition and untimely filing. Ata, 662 F.3d at 742. To show diligence, the petitioner must show that he or she "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in the state court." Plummer v. Jackson, 491 F. App'x 671, 675 (6th Cir. 2012). The habeas petitioner has the ultimate burden of persuading the court that he or she is entitled to equitable tolling. Id. at 741. This relief should be applied "sparingly" and on a case-by-case basis. Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006); Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005); Patterson v. Lafler, 455 Fed. Appx. 606, 2012 WL 48186 (6th Cir. 2012).

In Ata, the Petitioner alleged mental illness that interfered with his ability to meet the AEDPA one-year deadline sufficiently to warrant a hearing. The Sixth Circuit remanded the case to the Eastern District of Michigan for a hearing "to determine whether the [mental illness] allegations are true, and if so, whether they entitle Ata to equitable tolling." 662 F.2d at 738. Accordingly, the purpose of the evidentiary hearing was to determine (1) whether Mr. Townsend's claims that he suffers from mental illness are true, and (2) whether the mental illness was sufficient to warrant equitable tolling because it caused his late filing.

III. Analysis

To succeed, Mr. Townsend must show that he was incapacitated due to his mental illness during the relevant time period and that the direct result of that mental illness was a barrier to understanding or ability to file a federal habeas petition. See Hinton v. Klee, No. 2:13-cv-10143, 2013 WL 6157925 (E.D. Mich. Nov. 21, 2013). Mr. Townsend's objection to the Report and Recommendation alleges that he was incapable of filing an application for leave to appeal with the Michigan Supreme Court. Although the statute of limitations would have been tolled during the Supreme Court's deliberation and for an additional 90 days after its ruling had Mr. Townsend filed for leave of appeal to the Michigan Supreme Court, his claim cannot succeed merely by showing he was incapacitated during the time set out for an appeal to that court. He must show that he was incapacitated for the entire time available to file a timely federal habeas petition and that there was no way he could have timely filed a habeas petition due to his illness.

A. Statute of Limitations Period

First, the Court must address the applicable statute of limitations period. The Court finds the one-year statute of limitations began with Mr. Townsend's re-sentencing on November 3, 2009.1 After his appeal to the Court of Appeals was denied on June 28, 2010, Mr. Townsend had 56 days to file an appeal with the Michigan Supreme Court—which would have been due on August 23, 2010. Because he did not appeal to the Michigan Supreme Court, Mr. Townsend's judgment became final on August 24, 2010, and he originally had until August 23, 2011 to file a habeas petition.2 However, Mr. Townsend filed a motion for relief from judgment on March 24, 2011. Thus, the clock—that had run for 211 days from August 24, 2010 to March 23, 2011—stopped and tolled through September 24, 2012, when the Michigan Supreme Court denied Mr. Townsend's motion for reconsideration. See People v. Townsend, 820 N.W.2d 790 (Mich. 2013) (unpublished order).

At this point, Mr. Townsend had 154 days remaining to file—establishing a deadline for filing a petition on February 26, 2013. Thus, the petition dated May 2, 2013, was 64 days late. While there are minor discrepancies among the parties regarding dates, both Mr. Townsend and Respondent agree that the filing was untimely. The Court now considers whether Mr. Townsend has met his burden to demonstrate that the untimely filing was excused—and caused by—mental incompetence.3

B. Petitioner's Alleged Incompetence

There is little question that Mr. Townsend, to varying degrees, struggled with mental illness throughout his time in prison. He was diagnosed with bipolar disorder and borderline personality order and required heavy medications in prison, including antidepressants and anti-manic and mood stabilizers. He also was on psychotropic medications for a brief period of time. At the evidentiary hearing, the State called an expert to the stand to suggest that "abstinence syndrome" could explain Mr. Townsend's symptoms in prison early on, and note that Mr. Townsend refused to take drugs—and was not forcibly administered those drugs—from 2010 through the remainder of Mr. Townsend's incarceration when he was paroled in 2013.4 (ECF. No. 26 at PageID #225.)

Even if, for the sake of argument, Mr. Townsend was incompetent because of mental illness early on, he appears to have become competent some time well before he filed this petition; in fact, he filed a motion for relief from judgment in state court on March 30, 2011. Likewise, Mr. Townsend was able to appeal that decision to the Michigan Court of Appeals, file a motion for reconsideration, and appeal again to the Michigan Supreme Court. See Gresham v. Capello, 489 F. App'x 930, 933 (6th Cir. 2012) (finding that prisoner was not entitled to equitable tolling because, in part, his ability to file "numerous briefs, motions, and supporting documents on a continuous basis" showed that he had the ability to file a habeas petition but failed to do so); see also Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003) (finding that the petitioner did not diligently pursue rights when he delayed filing habeas petition for significant time while lawyer investigated relatively simple case). Thus, there must be some other "adequate reason for the delay" after Mr. Townsend proved sufficiently competent to litigate in state court. See Allen v. Kukins, 366 F.3d 396, 403 (6th Cir. 2004).5

Notably, Mr. Townsend refused to take medication from 2010 through 2013, did not complain that the absence of medication was affecting his ability to file state court motions, kite requests in prison, or other important functions. Instead, during his challenges, he would engage with staff and find a way to resolve them. (ECF No. 26 at PageID #209.) And from the period after the Michigan Supreme Court denied Mr. Townsend's motion for reconsideration, Mr. Townsend offers no evidence to demonstrate why he waited over seven months to file his petition in federal court.

In addition, this Court finds the evidentiary hearing testimony of Dr. Rome, the Chief Psychiatric Officer for the Michigan Department of Corrections, persuasive. After a thorough review of Mr. Townsend's institutional medical records, Dr. Rome opined that "drug abstinence" caused Mr. Townsend's symptoms and not necessarily mental illness. However, even if some mental illness was present, Dr. Rome concluded that Mr. Townsend's actions and insights were not generally consistent with a person who is incompetent.6 (ECF No. 26 at PageID #203.) Further, Dr. Rome testified to the fact that when Mr. Townsend voluntarily refused to take his psychiatric medications, it did not seem to have any detrimental effect on his medical status.7

By contrasting example, in Ata, the Court of Appeals remanded the case for an evidentiary hearing because, in part, the petitioner had paranoid schizophrenia, demonstrated "trouble with numbers, and . . . could not perform simple subtraction." Ata, 662 F.3d at 743-45; see Patterson, 455 Fed. Appx. at 611.8 Mr. Townsend, comparatively, seems to have functioned at a high level.

The Court certainly does not want to diminish Mr. Townsend's "significant history of trauma"; nor does the Court assert that Mr. Townsend did not suffer from any mental illness during the operative time period. (ECF No. 26 at PageID #226.) Nonetheless, after a thorough review of the record, the Court finds Mr. Townsend has not shown that mental illness rendered him incompetent and prevented him from filing his petition in a timely fashion; this is especially the case when Petitioner immersed himself in state law claims during the operative period and waited to file for over seven months after the State denied him relief. Thus, the Court DENIES Petitioner's motion for relief under 28 U.S.C. § 2254 because it is time barred and equitable tolling is unavailable.

IV. Conclusion

For the reasons discussed above, Petitioner's motion seeking relief under 28 U.S.C. § 2254 is DENIED because it is time barred and equitable tolling is unavailable.

ORDER.

For the reasons discussed in the accompanying opinion, Petitioner's petition for writ of habeas corpus seeking relief under 28 U.S.C. § 2254 is DENIED.

IT IS SO ORDERED.