Perry v. Birkett

• Decision Date: 08 June 2011
• Docket Number: Case Number: 10-cv-13501
• Parties: CASEY PERRY, # 244528, Petitioner, v. THOMAS BIRKETT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

CASEY PERRY, # 244528, Petitioner,

v.THOMAS BIRKETT, Respondent.

Case Number: 10-cv-13501

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

Dated: June 8, 2011

Honorable Thomas L. Ludington

OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY

JUDGMENT, DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING

TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING AN

APPLICATION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

Petitioner Casey Perry ("Petitioner") filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 2, 2010. Petitioner is a state inmate currently incarcerated at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan. His petition alleges that he is incarcerated in violation of his constitutional rights. In lieu of an answer to the petition, Respondent filed a motion for summary judgment [Dkt. # 16], asserting that the petition was not timely filed under 28 U.S.C. § 2244(d)(1). Petitioner filed a response [Dkt. # 18] to the motion on April 20, 2011. Respondent's motion will be granted because Petitioner did not file his habeas petition within the limitations period. The Court also will decline to issue Petitioner a certificate of appealability and will deny him an application for leave to proceed on appeal in forma pauperis.

I

The Michigan Court of Appeals summarized the facts of the case, and the recitation of those facts are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). The facts are asfollows.

Defendant was romantically involved with the victim on and off from approximately 1991 to 2000 and fathered five of her children. The couple was not in contact during defendant's incarceration between May 2000 and December 2003. Defendant initiated contact with the victim shortly after his release from prison. Defendant told investigators that he visited the victim in Kalamazoo several times during March 2004 and that they were deciding at that time whether to reconcile. He drove her from Kalamazoo to his home in Michigan City, Indiana, on March 26, 2004, and then returned her to Kalamazoo, where she was residing with her brother, Kirk Dement, and her boyfriend, Rex Garr. Defendant told investigators that he ended his relationship with the victim just after midnight on March 27, 2004, when he dropped her off at her residence. However, Dement and Garr testified that the victim was last seen alive on March 27, 2004, that she was with defendant at that time, and that she never returned to their residence. On May 2, 2004, the victim's naked body was found partially submerged at the edge of Asylum Lake in Kalamazoo. She died from multiple stab wounds to the abdomen, the base of the neck, and the forehead. Her body had been covered with wooden pallets and her arms, legs, and head were submerged in two feet of silt at the bottom of the lake.

The prosecutor's theory of the case was that evidence of defendant's abusive, obsessive, and controlling behavior throughout the course of his relationship with the victim established that he was responsible for her death. The trial court permitted the prosecutor to admit evidence of defendant's prior bad acts against the victim under MRE 404(b) to prove a pattern of violence, motive, intent, and identity. The prosecutor presented extensive testimony describing a history of relationship discord and domestic violence between 1991 and 2000.

People v. Perry, No. 266509, 2007 WL 1429551, at *1 (Mich. Ct. App. May 15, 2007).

Following a jury trial in the Kalamazoo County Circuit Court, Petitioner was convicted of first-degree premeditated murder pursuant to Mich. Comp. Laws § 750.316(1)(a). On November 7, 2005, he was sentenced as a habitual offender, fourth offense, to life in prison.

Subsequent to his sentencing, Petitioner filed his appeal of right in the Michigan Court of Appeals. On May 15, 2007, the Court of Appeals affirmed his conviction and sentence. Perry, 2007 WL 1429551, at *6. Petitioner filed an application for leave to appeal in the Michigan SupremeCourt, which was denied on October 29, 2007. People v. Perry, 480 Mich. 923, 740 N.W.2d 246 (2007) (Table).

On May 27, 2008, Petitioner filed a motion for relief from judgment in the trial court, which was denied on June 26, 2008. People v. Casey, No. 04-001408-FC (Kalamazoo County Cir. Ct. June 26, 2008). On April 21, 2009, Petitioner filed a delayed application for leave to appeal with the Court of Appeals, requesting to file a brief in excess of the fifty-page limit. The Court of Appeals denied the request and ordered him to file a conforming application within twenty-one days of its order. People v. Perry, No. 291565 (Mich. Ct. App. May 19, 2009). Petitioner did not do so. On October 21, 2009, the Court of Appeals dismissed his delayed application for failure to comply with its rules. People v. Perry, No. 291565 (Mich.Ct.App. Oct. 21, 2009).

On July 13, 2009-while his appeal was pending in the Court of Appeal-Petitioner filed an interlocutory application for leave to appeal in the Michigan Supreme Court, which was denied on September 11, 2009. People v. Perry, 485 Mich. 867, 771 N.W.2d 738 (2009).

Petitioner returned to state court on May 20, 2010, filing a discovery motion, which was denied. People v. Perry, No. 04-001408-FC (Kalamazoo County Cir. Ct. June 28, 2010).

On August 30, 2010,¹ Petitioner filed this habeas petition, raising the following claims: the admission of certain evidence was improper, the prosecutor committed misconduct, and trial and appellate counsel were ineffective.

II

Respondent argues in his motion for summary judgment that Petitioner's habeas petitionshould be barred from federal habeas review by the one-year statute of limitations.

A

A motion for summary judgment should be granted if the movant shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). The moving party has the initial burden of informing the Court of the basis for its motion, and identifying where to look in the record for relevant facts "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). "The summary judgment rule applies to habeas proceedings." See Redmond v. Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003) (quoting Harris v. Stegall, 157 F. Supp. 2d 743, 746 (E.D. Mich. 2001) (citation omitted)). In the statute of limitations context, "dismissal is appropriate only if a [moving party] clearly shows the claim is out of time." Harris v. New York, 186 F.3d 243, 250 (2d Cir. 1999); see also Cooey v. Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007) (same).

B

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA" or "the Act") applies to all habeas petitions filed after the Act's effective date, April 24, 1996, and imposes a one-year limitations period for habeas corpus petitions. 28 U.S.C. § 2244(d)(1). Petitioner's application for habeas corpus relief was filed after April 24, 1996, and thus, the provisions of the AEDPA, including the limitations period for filing an application for habeas corpus relief, apply to Petitioner's application. Lindh v. Murphy, 521 U.S. 320, 337 (1997).

Title 28 of the United States Code, sections 2244(d)(1)(A) through (D) state 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;

(B) the date on which the impediment to filing an application 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;

(C) the date on which the constitutional right asserted was originally 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

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

The one-year statute of limitations does not begin to run until the day after the petition for a writ of certiorari was due in the United States Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283-84 (6th Cir. 2000). Under Rule 13 of the Supreme Court Rules, a petition for a writ of certiorari "is timely when it is filed with the Clerk of this Court within 90 days after entry of judgment." Sup. Ct. R. 13. The statute of limitations may be tolled statutorily by a properly filed motion for post-conviction relief, or equitably by the Court, under limited circumstances.

Under § 2244(d)(2), the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending tolls any period of limitation contained in the statute. A post-conviction motion is "properly filed" under the statute if it meets the applicable state rules governing filing. Artuz v. Bennett, 531 U.S. 4, 8 (2000). Tolling is effective only when collateral review is properly sought within the limitationsperiod. Id. The limitations period also is tolled during the time period between the state appellate court's decision and the state supreme court's decision concerning the petition. Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Matthews v. Abramajtys, 319 F.3d 780, 787-88 (6th Cir. 2003). A properly filed application for state post-conviction relief, while tolling...