United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
DENISE PAGE HOOD, District Judge.
This is a habeas case brought pursuant to 28 U.S.C. § 2254. In 1985, Petitioner was convicted after a jury trial in the Record's Court for the City of Detroit of two counts of first-degree criminal sexual conduct. He was initially sentenced to 40-to-80 years imprisonment, but he was subsequently resentenced to a parolable life term. Petitioner alleges that his resentencing violated his Fifth Amendment rights because the sentencing judge erroneously believed that a parolable life sentence was more lenient than the 40-to-80 year term, and he was not awarded credit for time already served. 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. Petitioner filed a response to the show cause order arguing: (1) he did not know that his life sentence was worse than his prior sentence until the practices of the parole board changed; (2) his claim is meritorious and therefore the statute of limitations should not apply; and (3) a fundamental miscarriage of justice would occur if the petition is dismissed as untimely. For the reasons stated below, the petition will be dismissed for failure to comply with the statute of limitations.
Petitioner's direct appeal was decided in 1988. People v. Hurst, 169 Mich.App. 160 (1988). About twenty-five years after his resentencing, on June 12, 2012, Petitioner filed a petition for writ of habeas corpus in the Branch Circuit Court raising what now form his habeas claims. On July 12, 2012, the court dismissed the petition, finding that a writ of habeas corpus is not a substitute for an appeal under state law and that Petitioner could have raised his claims in his direct appeal. Petitioner appealed this decision, but the Michigan Court of Appeals denied his petition by order dated August 20, 1013. Hurst v. Warden, No. 313231 (Mich. Ct. App. Aug, 20, 2013). Petitioner's subsequent appeal was denied by the Michigan Supreme Court. Hurst v. Warden, No. 147786 (Mich. Sup. Ct. Jan. 31, 2014).
II. Standard of Review
Upon the filing of a habeas corpus petition, the Court must promptly examine the petition to determine "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief...." Rule 4, Rules Governing Section 2254 Cases. If the Court determines that the petitioner is not entitled to relief, the Court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face"). A preliminary question in a habeas case brought by a state prisoners whether Petitioner complied with the one-year statute of limitations. "[D]istrict courts are permitted... to consider sua sponte, the timeliness of a state prisoner's habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006).
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 equitable 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); ...