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Broadenax v. Rivard

United States District Court, E.D. Michigan, Southern Division

January 12, 2015

GREGORY BROADENAX, Petitioner,
v.
STEVE RIVARD, Respondent.

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), VACATING ORDER TO SHOW CAUSE (ECF #4), DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL

MATTHEW F. LEITMAN, District Judge.

I. Introduction

In 1979, Petitioner Gregory Broadenax, ("Petitioner") pleaded guilty in state court to a charge of second-degree murder, MICH. COMP. LAWS § 750.317. Petitioner is serving a life sentence for that plea-based conviction with the Michigan Department of Corrections. Petitioner has now filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ( See the "Petition, " ECF #1.) The Petition argues that the state trial court did not acquire jurisdiction over Petitioner's case. ( See id. )

After preliminary review of the Petition, the Court ordered Petitioner to show cause why the Petition should not be dismissed for failure to comply with the one-year statute of limitations. ( See the "Show Cause Order, " ECF #4.) Petitioner thereafter filed a response to the Show Cause Order arguing that because he is raising a jurisdictional claim, the statute of limitations does not apply to the Petition. ( See ECF #6.) For the reasons stated below, the Court vacates the Show Cause Order, dismisses the Petition as untimely, denies Petitioner a certificate of appealability, and denies Petitioner permission to proceed in forma pauperis on appeal.

II. Procedural History

Following his plea-based conviction and sentence, Petitioner filed a belated motion in state court to withdraw his plea. Petitioner thereafter appealed his conviction, and on August 5, 1991, the Michigan Supreme Court denied his application for leave to appeal. See People v. Broadenax, No. 90806 (Mich. Sup. Ct. Aug. 5, 1991). According to the allegations in the Petition, Petitioner appears to have filed a second post-conviction proceeding in the state trial court sometime in 1992. Petitioner then pursued another appeal through the Michigan Supreme Court, which denied relief on March 29, 1994. See People v. Broadenax, 444 Mich. 985, 518 N.W.2d 482 (Mich. 1994) (Table). Petitioner filed the instant Petition over twenty years later, on October 20, 2014.

III. Discussion

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a one-year statute of limitations applies to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. The one-year 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 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.

28 U.S.C. § 2244(d)(1).

Absent tolling, a petition for writ of habeas corpus must be dismissed where it has not been filed before the limitations period expires. See 28 U.S.C. § 2244(d)(1); see also ...


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