The opinion of the court was delivered by: Gerald E. Rosen Chief Judge, United States District Court
HONORABLE GERALD E. ROSEN CHIEF UNITED STATES DISTRICT JUDGE
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
Tracy Barnes, ("Petitioner"), presently confined at the Lakeland Correctional Facility in Coldwater, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for first-degree murder, M.C.L.A. 750.316; felon in possession of a firearm, M.C.L.A. 750.224f; and possession of a firearm in the commission of a felony, M.C.L.A. 750.227b. The respondent has filed a motion to dismiss, contending that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). Petitioner has filed a response to the motion to dismiss, as well as a motion to compel the respondent to answer the merits of the petition. For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DISMISSED pursuant to 28 U.S.C. § 2244(d)(1).
Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Barnes, No. 255639 (Mich.Ct.App. June 16, 2005); lv. den. 474 Mich. 938; 706 N.W. 2d 16 (2005).
On February 22, 2007, petitioner filed a petition for writ of habeas corpus, in which he initially sought habeas relief on the three grounds which had been exhausted with the Michigan Court of Appeals and the Michigan Supreme Court on his direct appeal. On March 21, 2007, petitioner filed a motion to hold the petition in abeyance so he could return to the state court to exhaust additional claims. While awaiting a ruling from this Court on his motion, petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., with the Wayne County Circuit Court. On August 14, 2007, the trial court denied the post-conviction motion. People v. Barnes, No. 04-001116-01 (Wayne County Circuit Court, August 14, 2007). On September 5, 2007, this Court granted petitioner's motion to stay the habeas proceedings and hold the petition in abeyance while petitioner returned to the state courts to exhaust additional claims. The Court also directed petitioner to use the same caption and case number when he returned to the federal courts after exhausting his claims. See also Barnes v. Lafler, No.2007 WL 2646583 (E.D. Mich. September 5, 2007).
Petitioner then filed a second motion for relief from judgment with the trial court on October 4, 2007, which was denied on the ground that M.C.R. 6.502(G) prohibits the filing of a successive post-conviction motion, except where there is newly discovered evidence or there has been a retroactive change in the law. People v. Barnes, No. 04-001116-01 (Wayne County Circuit Court, February 5, 2008).
Although not mentioned by respondent in her motion to dismiss or by petitioner in his reply to the motion to dismiss or in his motion to compel an answer on the merits, petitioner appears to have sent an application for leave to appeal to the Michigan Court of Appeals via prison mail on February 7, 2008.*fn1 It is unclear whether petitioner was seeking to appeal the denial of his first or second motion for relief from judgment. On February 19, 2009, petitioner apparently requested a register of actions from the Michigan Court of Appeals. On February 24, 2009, the Michigan Court of Appeals sent petitioner a letter with the register of actions from his direct appeal and informed him that this case had been closed for a number of years. Petitioner was further informed that nothing further could be filed in the matter.*fn2 Although unclear from the record, petitioner may have filed a motion for reconsideration with the Michigan Court of Appeals, but there is no indication whether that motion was actually filed or when or whether it was denied.*fn3
Petitioner then attempted to file an application for leave to appeal with the Michigan Supreme Court. In his application for leave to appeal, petitioner indicated that after the trial court denied petitioner's first motion for relief from judgment on August 14, 2007, it construed his motion for reconsideration as a second motion for relief from judgment, which was denied by that court on February 5, 2008. Petitioner indicates that he then filed his application for leave to appeal to the Michigan Court of Appeals on February 6, 2008.*fn4 However, in a grievance form that he filed with the Michigan Department of Corrections and which petitioner apparently attached to his application for leave to appeal, petitioner claims that an inmate paralegal with the Legal Writers Program whom petitioner requested assistance from had improperly captioned his application for leave to appeal to the Michigan Court of Appeals as a "Brief in Support of Motion for Relief From Judgment." Petitioner claims that this captioning on the pleading confused the Michigan Court of Appeals, causing them to send petitioner's appeal to the trial court. Petitioner further claimed that the trial court never informed petitioner of this mistake.*fn5 On May 22, 2009, the Michigan Supreme Court rejected petitioner's application as an improper attempt to seek review of the Michigan Court of Appeals' refusal to accept his untimely filed pleadings with that court.*fn6
On June 25, 2009, petitioner re-filed his petition for writ of habeas corpus with this Court, albeit under a different caption and case number. On September 30, 2009, this Court ordered that petitioner's new habeas case be reassigned as a companion case to this one and ordered that the petition be reinstated to the Court's active docket.
Respondent has filed a motion to dismiss the petition for writ of habeas corpus on the ground that the petition was not filed in compliance with the statute of limitations. In the statute of limitations context, "dismissal is appropriate only if a complaint clearly shows the claim is out of time." Harris v. New York, 186 F.3d 243, 250 (2nd Cir. 1999); See also Cooey v. Strickland, 479 F. 3d 412, 415-16 (6th Cir. 2007).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") mandates a statute of limitations for habeas actions. 28 U.S.C. § 2244(d) imposes a one-year statute of limitations upon petitions for habeas relief:
(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 was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was originally 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.
A federal court will dismiss a case where a petitioner for a writ of habeas corpus does not comply with the one year statute of limitations. See Brown v. McKee, 23 ...