United States District Court, Eastern District of Michigan, Northern Division
MICHAEL T. WITHERSPOON, Petitioner
PAUL KLEE, Respondent.
Honorable Thomas L. Ludington
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE
This is a habeas case brought by a state prisoner. On February 1, 2008, following a jury trial in the Wayne Circuit Court, Petitioner Michael T. Witherspoon was found guilty of second-degree murder. Petitioner was sentenced to 40-to-60 years. The petition raises three claims: (1) Petitioner’s failure to testify at trial was used against him by the prosecutor during closing arguments, (2) Petitioner was denied the effective assistance of counsel, and (3) Petitioner’s claims are not procedurally defaulted. Upon initial review of the petition it appeared that review was barred by the statute of limitations under 28 U.S.C. §2244(d). Petitioner was ordered to show cause why the petition should not be dismissed as untimely, and Petitioner has filed a response. Petitioner acknowledges that his petition was filed after expiration of the one-year statute of limitations, but he asserts that he is entitled to equitable tolling. Because these arguments are without merit and for the reasons stated below, the petition will be dismissed for failure to comply with the statute of limitations. Petitioner will also be denied a certificate of appealability.
According to Petitioner’s filings, his direct appeal ended on November 10, 2010, when the Michigan Supreme Court denied his application for leave to appeal. People v. Witherspoon, No. 139120 (Mich. Nov. 10, 2010). A year later, on November 10, 2011, Petitioner filed a motion for relief from judgment in the trial court, raising his present habeas claims. The trial court denied relief, as did the Michigan Court of Appeals and Michigan Supreme Court. Petitioner’s state post-conviction-review proceeding ended when the Michigan Supreme Court denied leave to appeal on September 30, 2013. People v. Witherspoon, No. 147045 (Mich. Sup. Ct. Sep. 30, 2013). The current petition was filed through Petitioner’s counsel on September 27, 2014.
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 corpus case brought by a state prisoner is 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 ...