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Elmanar v. McKee

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

January 30, 2015

MOURAD ELMANAR, Petitioner,
v.
KENNETH MCKEE, Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. 1), DENYING CERTIFICATE OF APPEALABILITY AND DENYING PERMISSION TO PROCCED ON APPEAL IN FORMA PAUPERIS

TERRENCE G. BERG, District Judge.

Petitioner Mourad Elmanar filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 13, 2014. (Dkt. 1.) Petitioner challenges his Livingston Circuit Court guilty plea conviction for assault with intent to commit armed robbery, Mich. Comp. Laws § 750.89, unlawful imprisonment, Mich. Comp. Laws § 750.349(b), and assault with intent to do great bodily harm. Mich. Comp. Laws § 750.84. ( Id. at 1.) The petition raises three claims: (1) Petitioner's plea was involuntary because his interpreter inadequately translated the proceedings, (2) Petitioner was not informed of his right to contact his consulate, and (3) Petitioner was denied the effective assistance of counsel when counsel failed to bring an interpreter to his prison visit. ( Id. at 5, 7-8.)

Respondent filed a motion for summary judgment on November 25, 2014, asserting that the petition was filed after expiration of the one-year statute of limitations. (Dkt. 8, p. 1.) For the reasons set forth, the Court agrees and will dismiss the petition as untimely. The Court will also deny Petitioner a certificate of appealability and permission to proceed on appeal in forma pauperis.

I. FACTUAL BACKGROUND

On February 6, 2009, Petitioner pleaded guilty to the offenses indicated above. (Dkt. 9-4, p. 17.) Petitioner was sentenced on March 26, 2009, to 14-to-50 years' imprisonment for the assault with intent to commit armed robbery conviction, 10-to-15 years for the unlawful imprisonment conviction, and 3-to-10 years for the assault with intent to do great bodily harm conviction. (Dkt. 9-5, p. 16.)

On November 10, 2009, Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, raising claims challenging his sentence but not the validity of his plea. (Dkt. 9-10.) On January 20, 2010, the Michigan Court of Appeals issued an order denying leave to appeal for lack of merit on the grounds presented. People v. Elmanar, No. 295153, (Mich. Ct. App. Jan. 20, 2010).

Petitioner then filed an application for leave to appeal in the Michigan Supreme Court on February 22, 2010. (Dkt. 9-11, pp. 2-32.) On May 25, 2010, the Michigan Supreme Court denied the application by standard order. People v. Elmanar, 781 N.W.2d 829 (Mich. 2010) (table). The time for filing a petition for writ of certiorari with the United States Supreme Court expired 90 days later, on August 23, 2010. 28 U.S.C. § 2101(c).

On May 2, 2011, 252 days after the deadline passed for filing for review in the United States Supreme Court, Petitioner filed a state post-conviction review proceeding under Michigan Court Rule 6.502. (Dkt. 9-7, pp. 1-5.) The trial court denied relief on March 6, 2012. (Dkt. 9-9.) On August 9, 2012, Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. (Dkt. 9-12, pp. 5-29.) On November 19, 2012, the Michigan Court of Appeals denied the application in a standard order. People v. Elmanar, 311794 (Mich. Ct. App. Nov. 19, 2012). On January 7, 2013, Petitioner applied for leave to appeal to the Michigan Supreme Court. ( See Dkt. 9-1, p. 6.) On July 30, 2013, the Michigan Supreme Court denied the application. People v. Elmanar, 833 N.W.2d 926 (Mich. 2013) (table). Petitioner signed and dated the present habeas petition on June 11, 2014 (Dkt. 1, p. 13), 316 days after the Michigan Supreme Court denied leave to appeal from his state post-conviction review proceeding.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") provides a one-year period of limitation for a habeas petition filed by a state prisoner seeking habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1). The limitation runs from one of four specified dates, usually either the day when the judgment becomes final by the conclusion of direct review or the day when the time for seeking such review expires. 28 U.S.C. § 2244(d)(1)(A). The limitation period is tolled while "a properly filed application for State post-conviction or other collateral review... is pending." 28 U.S.C. § 2244(d)(2).

The limitation period began to run in this action when Petitioner's conviction "became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. 2244(d)(1)(A). None of the other potential starting points apply. Petitioner does not assert that his claims are based on previously unavailable facts or law, nor does he allege that the state created an external impediment preventing him from filing his petition. See §§ 2244(d)(1)(B)-(D).

"Direct review, " for purposes of subsection 2244(d)(1)(A), concludes when the availability of direct appeal to the state courts and to the United States Supreme Court have been exhausted. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Here, the Michigan Supreme Court denied leave to appeal on May 25, 2010. Direct review ended 90 days later, on August 23, 2010, when the time expired for Petitioner to file a petition for writ of certiorari in the United States Supreme Court. See Gonzalez v. Thaler, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). The statute of limitations began running on the next day, August 24, 2010.

The limitations period began tolling when Petitioner filed a motion for relief from judgment with the trial court on May 2, 2011. See 28 U.S.C. § 2244(d)(2). This means 252 days ran on the limitations period between the expiration of time for seeking direct review and the date Petitioner filed his state petition for postconviction review, when the limitations period began to toll under § 2244(d)(2).

This period of tolling continued until relief was denied by the Michigan Supreme Court on July 30, 2013. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002). It should be noted that the state court proceeding merely tolled the limitations period, it did not restart the one-year clock. See McMurray v. Scutt, 136 F.Appx. 815, ...


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