The opinion of the court was delivered by: Thomas L. Ludington United States District Judge
Honorable Thomas L. Ludington
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS, DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
Petitioner Gene Favors is a state inmate currently incarcerated at the Kinross Correctional Facility in Kincheloe, Michigan,*fn1 and filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Rather than file a response to the petition, Respondent filed a motion to dismiss [Dkt. # 6] on December 11, 2009, asserting that the petition was not timely filed under 28 U.S.C. § 2244(d)(1). Petitioner filed a response [Dkt. # 12] to the motion on February 23, 2010. Respondent's motion will be granted because Petitioner did not file his application for a writ of habeas corpus within the limitations period.
Respondent has not disputed the factual allegations contained within the habeas petition, therefore, to the extent that they are consistent with the record, they will be taken as true. See Dickens v. Jones, 203 F. Supp. 2d 354, 360 (E.D. Mich. 2002) ("When a state's return to a habeas corpus petition fails to dispute the factual allegations contained within the habeas petition, it essentially admits these allegations.") (citing Bland v. Cal. Dep't of Corrs., 20 F.3d 1469, 1474 (9th Cir. 1994)). The Michigan Court of Appeals' summarized the facts surrounding the offenses of Petitioner's convictions as follows:
Defendant abducted a ten-year-old girl from a church in Detroit, led her to a nearby abandoned house, made her undress, and forced her to commit an act of fellatio. He also beat the victim with a stick and with his fist. The victim escaped by running from the house and back to the church wearing only a pair of socks. Two men from the neighborhood had observed a man and a young girl walking past them and then shortly thereafter observed the girl running naked towards the church. The two men captured the fleeing defendant and took him to the church for the victim to identify and to await the arrival of the police.
People v. Favors, No. 215826, 2001 WL 986519, at *1 (Mich. Ct. App. Aug. 28, 2001) (per curiam). See § 2254(e)(1) (" . . . a determination of a factual issue made by a State court shall be presumed to be correct . . . ."). Several witnesses testified at trial, including the victim, who also identified the defendant, and a serologist who testified "that blood found on defendant's shirt was consistent with the victim's DNA." Favors, No. 215826, 2001 WL 986519, at *1, 3.
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of (1) first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a), (2) kidnapping, Mich. Comp. Laws § 750.350, and (3) assault with intent to commit great bodily harm, Mich. Comp. Laws § 750.84. On October 22, 1998, Petitioner was sentenced to life in prison for the criminal sexual conduct conviction, forty to sixty years in prison for the kidnapping conviction, and six to ten years in prison, plus a $5,000 fine for the assault conviction.
Subsequent to his sentencing, on November 16, 1998, Petitioner filed his appeal of right in the Michigan Court of Appeals. On August 28, 2001, the court affirmed his convictions, but remanded for resentencing on the assault conviction because the Michigan statute authorized a prison term up to ten years or a fine up to $5,000, but not both. Favors, No. 215826, 2001 WL 986519, at *7. Petitioner filed a delayed application for leave to appeal to the Michigan Supreme Court, which the court denied on May 29, 2002. People v. Favors, 645 N.W.2d 660 (table) (Mich. 2002). On July 29, 2002, Petitioner's motion for reconsideration was denied. People v. Favors, 649 N.W.2d 79 (table) (Mich. 2002).
After Petitioner was resentenced, on November 5, 2001, he appealed his new sentence. On February 21, 2003, the Court of Appeals remanded for resentencing again, because the sentencing court denied Petitioner's request for an updated presentence report. People v. Favors, No. 037683, 2003 WL 462573 (Mich. Ct. App. Feb. 21, 2003). Petitioner filed a delayed application for leave to appeal to the Michigan Supreme Court, which was denied on July 28, 2003. People v. Favors, 469 Mich. 864, 666 N.W.2d 670 (table ) (Mich. 2003).
Approximately sixteen months later, on November 14, 2005, Petitioner filed a motion for relief from judgment in the trial court, which was denied on January 23, 2006. People v. Favors, No. 98-004497 (Wayne County Cir. Ct. Jan. 23, 2006). On July 17, 2006, the Court of Appeals denied Petitioner's appeal for lack of jurisdiction "because a criminal defendant may only challenge an order denying a motion for relief from judgment under MCR 6.500 et seq. by filing an application for leave to appeal under MCR 7.205." People v. Favors, No. 269047 (Mich. Ct. App. July 17, 2006). Petitioner did not appeal that decision to the Michigan Supreme Court.
Then, on December 18, 2006, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, challenging the January 23, 2006, trial court order denying his motion for relief from judgment. On May 21, 2007, the Court of Appeals denied relief "for lack of merit in the grounds presented." People v. Favors, No. 275048 (Mich. Ct. App. May 21, 2007). On March 24, 2008, the Michigan Supreme Court denied Petitioner's application for leave to appeal the May 21, 2007 order of the Court of Appeals "because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Favors, 745 N.W.2d 783 (table) (Mich. 2008). Petitioner's motion for reconsideration was also denied. People v. Favors, 748 N.W.2d 811 (table) (2008).
On June 2, 2009, Petitioner filed the pending petition for a writ of habeas corpus in this Court. 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 ...