The opinion of the court was delivered by: Thomas L. Ludington United States District Judge
Honorable Thomas L. Ludington
OPINION AND ORDER DENYING PETITIONER'S MOTION TO STAY, GRANTING RESPONDENT'S MOTION TO DISMISS, DENYING AND DISMISSING HABEAS PETITION WITH PREJUDICE, AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Brian Howes is presently confined at Chippewa Correctional Facility in Kincheloe, Michigan, and filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. §2254, signed and dated March 18, 2009. On October 14, 1996, Petitioner entered a no-contest plea on charges of assault with intent to commit murder, Mich. Comp. Laws §750.83; armed robbery, Mich. Comp. Laws §750.529; and felony firearm, Mich. Comp. Laws §750.227b. On October 31, 1996, Petitioner was sentenced to concurrent terms of twenty to forty years imprisonment on both the assault with intent to commit murder and armed robbery convictions and a two year consecutive term of imprisonment for the felony firearm conviction. Petitioner did not file a direct appeal.
Petitioner raises two issues in his habeas petition, including whether the time period for filing his petition should be equitably tolled, and whether he received ineffective assistance of appellate counsel when his attorney did not file his direct appeal.*fn1 On August 24, 2005, just under nine years after he was sentenced, Petitioner filed a motion for relief from judgment in the trial court, which was denied on July 11, 2006. People v. Jones, No. 96-3233 (Mich. Cir. Ct. July 11, 2006). The court found that Petitioner did not demonstrate actual prejudice resulting from appellate counsel's deficient performance because Petitioner could have filed a delayed appeal within twelve months of sentencing. Id. The court also found that Petitioner did not demonstrate that his no-contest plea was not knowingly, voluntarily, and intelligently made on the record, and that there were no reversible sentencing errors. Id.
Petitioner was denied leave to appeal the trial court's decision by the Michigan Court of Appeals, People v. Jones, No. 274553 (Mich. Ct. App. June 18, 2007), and the Michigan Supreme Court, People v. Jones, 742 N.W.2d 373 (Mich. Dec. 28, 2007). The Michigan Supreme Court denied Petitioner's motion for reconsideration. People v. Jones, 744 N.W.2d 133 (Mich. Feb. 19, 2008). On June 9, 2008, the U.S. Supreme Court denied Petitioner's petition for writ of certiorari, which Petitioner had filed on March 17, 2008.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year period of limitations for habeas petitions filed by state prisoners. 28 U.S.C. § 2244(d). The limitations 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 maderetroactively 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.
As a threshold issue, Petitioner filed a motion to stay [Dkt. # 3], requesting a stay of these proceedings pending the determination of his state court motion filed pursuant to Michigan Court Rule 6.428. In his motion, Petitioner requested the re-issuance of judgment so that his right to appeal may be restored. Generally, federal district courts are authorized to stay fully exhausted federal habeas claims pending the exhaustion of other claims. Rhines v. Weber, 544 U.S. 269 (2005). However, on August 5, 2009, the trial court returned Petitioner's motion, along with a cover letter stating that the court construed the request for re-issuance of a judgment as a motion for relief from judgment. Since Petitioner previously filed a motion for relief from judgment, the pleading was rejected pursuant to Michigan Court Rule 6.502(G), which provides that a party is not entitled to file a second motion for relief from judgment. Thus, Petitioner's request for a stay of proceedings in this Court is now moot, and will be denied as such.
Respondent's motion to dismiss [Dkt. # 5] is also before the Court, wherein Respondent seeks dismissal of the habeas petition because, inter alia, Petitioner did not file it within the applicable period of limitations. Petitioner did not file a response to Respondent's motion, but rather filed a brief addressing the statute of limitation arguments raised by Respondent. For the reasons stated below, the Court will grant Respondent's motion to dismiss and deny the habeas petition.
Since Petitioner did not file a direct appeal, his time for seeking leave to appeal expired one year after the judgment of sentence was entered on October 31, 1997. See Mich. Ct. R. 7.205(F). Petitioner did not file an application for leave to appeal, therefore, his conviction became final under § 2244(d)(1)(A) on November 1, 1997. See Brown v. McKee, 232 F. Supp. 2d 761, 765 (E.D. Mich. 2002). The statute of limitations began to run on the following day, and it expired one year later on November 1, 1998. Petitioner filed the pending ...