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Wilson v. Wolfenbarger

March 22, 2010

TERRY WILSON, #137914, PETITIONER,
v.
HUGH WOLFENBARGER, RESPONDENT.



The opinion of the court was delivered by: Honorable Patrick J. Duggan

OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan on March 22, 2010.

PRESENT: HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE

Michigan prisoner/parolee Terry Wilson ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his state criminal conviction and sentence. Hugh Wolfenbarger ("Respondent"), through counsel, has filed a motion to dismiss the petition for failure to comply with Rule 11.2 of the Local Rules for the Eastern District of Michigan and for failure to comply with the one-year statute of limitations applicable to federal habeas actions. For the reasons set forth herein, the Court grants Respondent's motion and dismisses the habeas petition on statute of limitations grounds. The Court also denies a certificate of appealability and denies Petitioner leave to proceed in forma pauperis on appeal.

I. Facts and Procedural History

On January 15, 2002, Petitioner pleaded guilty to first-degree retail fraud in the Circuit Court for Oakland County, Michigan, and was sentenced as a fourth habitual offender to a term of imprisonment of one year six months to ten years. Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was dismissed by stipulation. People v. Wilson, No. 242258 (Mich. Ct. App. Aug. 1, 2002) (unpublished). Petitioner did not seek leave to appeal with the Michigan Supreme Court. (See Doc. 14 Ex. 1 [Aff. of Corbin R. Davis, Michigan Supreme Court Clerk].)

In July and December 2002, Petitioner filed motions for relief from judgment in the state trial court. The latest of those motions was denied on February 8, 2006 and reconsideration was denied on February 17, 2006. (Doc. 13-1 [Oakland Co. docket sheet].) Petitioner did not seek leave to appeal with the Michigan appellate courts. (Id.)

Petitioner filed the present petition for a writ of habeas corpus on July 24, 2009.*fn1

In his petition, he raises claims concerning the voluntariness of his plea, the voluntariness of his confession, illegal search and seizure, self-incrimination, prosecutorial misconduct, double jeopardy, and the effectiveness of counsel. As indicated earlier, Respondent has filed a motion to dismiss the petition for failure to comply with Local Rule 11.2*fn2 and the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Petitioner has not filed a reply to the motion.

II. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. §§ 2241-2255, became effective on April 24, 1996. The AEDPA governs the filing date for this case because Petitioner filed his pleadings after the statute's effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997). The AEDPA establishes a one-year limitations period for habeas petitions brought by prisoners challenging state court judgments. Specifically, the statute provides:

(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 ...


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