The opinion of the court was delivered by: Honorable Avern Cohn
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
This is a habeas case under 28 U.S.C. § 2254. Petitioner Jeffery Smith (Petitioner) is a state prisoner incarcerated at the St. Louis Correctional Facility in St. Louis, Michigan, pursuant to state court convictions for assault with intent to do great bodily harm less than murder, felon in possession of a firearm, and felony firearm. Petitioner has filed a petition for a writ of habeas corpus claiming that (1) his right to file a successive motion for relief from judgment was violated, (2) the circuit court lacked jurisdiction, and (3) he was denied his right to the effective assistance of trial and appellate counsel. Respondent, through the Attorney General's office, argues that the petition should be denied as untimely. The Court agrees. The reasons follow.
Petitioner pleaded no contest in Muskegon County Circuit Court to assault with intent to do great bodily harm less than murder, felon in possession of a firearm, and felony firearm. On December 22, 2003, Petitioner was sentenced to 152 months to 25 years' imprisonment for the assault conviction, 6 months to 25 years' imprisonment for the felon-in-possession conviction, and two years' imprisonment for the felony-firearm conviction.
Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied the application for leave to appeal. People v. Smith, No. 259726 (Mich. Ct. App. Feb. 17, 2005). Petitioner sought leave to appeal in the Michigan Supreme Court, which was denied on October 31, 2005. People v. Smith, 474 Mich. 899 (2005) (Table).
On June 12, 2006, Petitioner filed a motion for relief from judgment in the trial court. The motion was denied on August 2, 2006. People v. Smith, No. 02-048295-FC (Muskegon County Cir. Ct. Aug. 2, 2006). Petitioner's motion for reconsideration was also denied. Id. (Sept. 1, 2006).
On May 3, 2007, Petitioner filed a second motion for relief from judgment in the trial court. The trial court denied the motion because Petitioner did not satisfy the prerequisites for fling a successive motion for relief from judgment. Id. (May 25, 2007).
Petitioner then filed a delayed application for leave to appeal in the Michigan Court of Appeals. The court of appeals dismissed the application for lack of jurisdiction because the denial or rejection of a successive motion for relief from judgment is not appealable. People v. Smith, No. 281251 (Mich. Ct. App. Nov. 21, 2007).
Petitioner then filed the pending petition for a writ of habeas corpus on June 10, 2008.
A prisoner must file a federal habeas corpus petition within one year of the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. (d)(1)(A). The one-year limitations period does not begin to run until the time for filing a petition for a writ of certiorari to the United States Supreme Court has expired. Isham v. Randle, 226 F.3d 69, 694-95 (6th Cir. 2000). In addition, the time during which a prisoner seeks state-court collateral review of a conviction does not count toward the limitations period. 28 U.S.C. § 2244(d)(2). However, a properly filed application for state post-conviction relief, while tolling the statute of limitations, does not serve to restart the limitations period. Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
In this case, Petitioner's time for filing a petition for a writ of certiorari in the United States Supreme Court began to run on November 1, 2005, the day after the Michigan Supreme Court denied leave to appeal his conviction. Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000) (citing Supreme Court Rule 30 which states that in calculating the ninety-day window for filing a petition for writ of certiorari, "the day of the act, event, or default from which the designated period begins to run is not included"). The ninety-day period during which Petitioner could petition for a writ of certiorari concluded on January 29, 2006.
Accordingly, the limitations period commenced on January 30, 2006. Petitioner filed a motion for relief from judgment in the trial court on June 12, 2006. That motion, a properly filed motion for collateral review, tolled the limitations period, after 133 days had elapsed. The motion was denied on ...