Redmond v. Jackson

• Decision Date: 09 December 2003
• Docket Number: No. CIV. 03-40083.,CIV. 03-40083.
• Citation: 295 F.Supp.2d 767
• Parties: Robert C. REDMOND, Petitioner, v. Andrew JACKSON, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

295 F.Supp.2d 767

Robert C. REDMOND, Petitioner, v. Andrew JACKSON, Respondent.

No. CIV. 03-40083.

United States District Court, E.D. Michigan, Southern Division.

December 9, 2003.

COPYRIGHT MATERIAL OMITTED

Robert Redmond, Thumb Correctional Facility, Lapeer, MI, Pro se.

Brenda E. Turner, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Andrew Jackson, Warden, respondent.

OPINION AND ORDER OF SUMMARY DISMISSAL

GADOLA, District Judge.

Petitioner, presently confined at the Thumb Correctional Facility in Lapeer, Michigan, has filed a pro se petition for the writ of habeas corpus, in which he challenges his convictions for first-degree felony murder, Mich. Comp. Laws § 750.316, conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a and § 750.529, and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. Respondent filed a motion for summary judgment, contending that the petition was not filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). Petitioner filed a response to the motion for summary judgment. For the reasons stated below, the Court will dismiss the petition for the writ of habeas corpus with prejudice.

I. BACKGROUND

Petitioner was convicted of the above offenses following a bench trial in the Detroit Recorder's Court and was sentenced on August 21, 1989. Petitioner filed a claim of appeal, which was dismissed on June 13, 1990, by the Michigan Court of Appeals for lack of jurisdiction because Petitioner did not request the appointment of appellate counsel within fifty-six days of judgment. Thereafter, Petitioner filed, through appointed counsel, a delayed application for leave to appeal to the Michigan Court of Appeals, which was granted. On November 9, 1994, the Michigan Court of Appeals vacated the armed robbery conviction but affirmed Petitioner's other convictions. Petitioner's application for leave to appeal to the Supreme Court of Michigan was rejected on January 5, 1995, as being untimely. See Affidavit of Corbin R. Davis, Clerk of the Supreme Court of Michigan (June 11, 2003).

Petitioner subsequently filed a post-conviction motion for relief from judgment with the Wayne County Circuit Court on November 9, 1999.¹ After the motion for relief from judgment was denied by the trial court, the Michigan Court of Appeals denied leave to appeal on April 16, 2002. The Supreme Court of Michigan concluded state post-conviction proceedings in this matter by denying Petitioner leave to appeal on December 30, 2002. People v. Redmond, 467 Mich. 931, 655 N.W.2d 566 (2002) (citing Mich. Ct. R. 6.508(D)). The instant petition was signed and dated April 3, 2003.²

II. ANALYSIS

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir.2000) (quoting Fed.R.Civ.P. 56(c)). To defeat a summary judgment motion, the non-moving party must set forth specific facts sufficient to show that a reasonable factfinder could return a verdict in his favor. Id. The summary judgment rule applies to habeas proceedings. Harris v. Stegall, 157 F.Supp.2d 743, 746 (E.D.Mich. 2001).

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a one year statute of limitations applies to an application for the writ of habeas corpus by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period runs 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 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

(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). A federal court will dismiss a case when a habeas petitioner does not comply with the one year statute of limitations. Smith v. Stegall, 141 F.Supp.2d 779, 782 (E.D.Mich.2001) (Gadola, J.).

Here, the Michigan Court of Appeals resolved Petitioner's direct appeal on November 9, 1994. Petitioner's application for leave to appeal was rejected as untimely by the Supreme Court of Michigan. See Mich. Ct. R. 7.302(C)(3). Because Petitioner did not file a timely application to the Supreme Court of Michigan, his conviction became final, for purposes of § 2244(d)(1)(A), on January 4, 1995, when the time for seeking leave to appeal with the Supreme Court of Michigan expired. Erwin v. Elo, 130 F.Supp.2d 887, 889 (E.D.Mich.2001); Mich. Ct. R. 7.302(C)(3).

Nevertheless, because Petitioner's conviction became final prior to the April 24, 1996, enactment date of AEDPA, Petitioner had one year from the enactment date to file a habeas petition in federal court. Porter v. Smith, 126 F.Supp.2d 1073, 1074-75 (E.D.Mich.2001) (Gadola, J.). Absent state collateral review, Petitioner would have been required to file his habeas petition with this Court no later than April 24, 1997, in order for the petition to be timely. Id. Here, Petitioner filed a post-conviction motion for relief from judgment with the trial court on November 9, 1999, which was well after April 24, 1997. Although the time consumed by state collateral review is not counted toward the limitations period, see 28 U.S.C. § 2244(d)(2), a state court post-conviction motion or other collateral motion filed after the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. Smith, 141 F.Supp.2d at 782-83. In other words, if the one-year period has already expired, filing a motion for state post-conviction relief will not add new time to the already-expired period. Therefore, Petitioner's post-conviction motion for relief from judgment, which was filed after the limitations period had already expired on April 27, 1997, does not alter the result in this situation: the instant habeas petition is untimely. 28 U.S.C. § 2244(d).

In his response to the summary judgment motion, Petitioner makes four arguments to support his contention that the instant petition is timely. First, Petitioner contends that his judgment of conviction never became final, as contemplated by § 2244(d)(1)(A), because he was never afforded "direct review" of his conviction. Petitioner claims that his delayed application for leave to appeal his conviction, which was granted by the Michigan Court of Appeals, is not the equivalent of the appeal of right that he is guaranteed under Michigan's constitution; therefore, according to Petitioner, he has not had an opportunity for "direct review" so as to commence the running of the statute of limitations.

In determining whether a particular state procedure constitutes part of the "direct review" process for purposes of AEDPA's limitations period, the Court must defer to the underlying state court characterization of the procedure. Orange v. Calbone, 318 F.3d 1167, 1170 (10th Cir. 2003). In Orange, the United States Court of Appeals for the Tenth Circuit held that the "appeal out of time" procedure offered to defendants by the Oklahoma Court of Criminal Appeals was part of the direct appeal process under Oklahoma law, and was therefore part of the "direct review" process within the meaning of § 2244(d)(1)(A) for purposes of determining when the limitations period commenced to run. Id.

Under Michigan Court Rule 7.204(A)(2), as was in effect at the time of Petitioner's conviction, Petitioner would have had fifty-six days from the date of the judgment of sentence to file an appeal of right with the Michigan Court of Appeals. However, if Petitioner did not timely file an appeal of right, under the state court rules in effect at the time of his sentence, Petitioner would have had eighteen months in which to file a delayed application for leave to appeal with the Michigan Court of Appeals. Mich. Ct. R. 7.205(F). Here, Petitioner's appellate counsel filed an application for leave to appeal, which was granted by the Michigan Court of Appeals. If an application for leave to appeal is granted, the case then proceeds as an appeal of right. Mich. Ct. R. 7.205(D)(3); People v. McKendrick, 188 Mich.App. 128, 145, 468 N.W.2d 903, 911-12 (1991). Here, the Michigan Court of Appeals granted Petitioner's application for leave to appeal, and Petitioner was given an appeal of right. This is evidenced by the fact that the Michigan Court of Appeals issued a written opinion in the case and actually vacated one of his convictions. Petitioner was therefore afforded "direct review" of his conviction and the one-year limitations period began to run on January 4, 1995, when Petitioner failed to file a timely application for leave to appeal with the Supreme Court of Michigan following the Michigan Court of Appeals' decision.

Second, Petitioner contends that the limitations period should be tolled due to newly discovered evidence. Under 28 U.S.C. § 2244(d)(1)(D), the one-year period begins to run from the date upon which the factual predicate for a claim could have been discovered through due diligence. However, the time commences under § 2244(d)(1)(D) when the factual predicate for a petitioner's claim could have been discovered through the exercise of due diligence, not when it was actually discovered by a given prisoner. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.20...