United States District Court, Eastern District of Michigan
OPINION AND ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT (DKT. 8), DENYING PETITIONER’S MOTION TO STAY (DKT 3), AND DENYING CERTIFICATE OF APPEALABILITY
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.
Michigan state prisoner Jermaine Keith has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is in the custody of the Michigan Department of Corrections pursuant to convictions for assault with intent to commit murder, four counts of felonious assault, and possession of a firearm during the commission of a felony. Respondent moves for summary judgment on the ground that the petition is untimely. For the reasons explained below, the Court finds that the petition is untimely. As a result, Respondent’s motion for summary judgment (Dkt. 8) is GRANTED and Petitioner’s motion to stay (Dkt. 3) is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner’s convictions arise from a shooting that occurred in the City of Detroit on November 4, 2006. The Court summarizes the facts based on its review of the trial transcript, as well as the recitation of facts presented in the decision by the Michigan Court of Appeals. On the evening of November 4, 2006, Tammy Robinson visited her sister at her sister’s home located on 13400 Lauder Street in the City of Detroit. (Dkt. 9, Ex. 3, p. 12.) Ms. Robinson’s brothers and nieces were also present. At some point, Petitioner arrived at the home and got into a physical altercation with Ms. Robinson. (Id. at p. 14-19.) The fight escalated and resulted in Ms. Robinson slashing Petitioner’s face with a knife. (Id.) Following this fight, Petitioner threatened that he would come back and shoot and kill Ms. Robinson. (Id. at 21.)
At trial, Ms. Robinson testified that her brother-in-law told her and her siblings to get the children out of the house in case Petitioner returned. (Id. at 24.) As they were attempting to leave, Ms. Robinson, her sister, and one of her brothers all testified that Petitioner returned and opened fire. (Dkt. 9, Ex. 3.) Ms. Robinson reported feeling a bullet passing by her head as she stood on the porch of the house holding one of her nieces. (Dkt. 9, Ex. 2, p. 19.) She then ran inside the home with her siblings and nieces as Petitioner continued shooting at the house. (Id. at 26-28.) Tammy Robinson’s account of the events was supported in part by the trial testimony of Officer Matthew Hernandez of the Detroit Police Department. Officer Hernandez testified that he responded to the victims’ 911 call on the night of the incident. (Dkt. 9, Ex. 3, p. 135.) He observed four bullet holes in the house, including two in the west dining room window and two in the south dining room window. (Id. at 140-41.) Shell casings were not recovered. (Id. at 148.)
The Michigan Court of Appeals set forth the relevant facts as follows:
[T]he evidence showed that defendant got into a fight with Tammy Robinson, following which, he specifically stated she was going to die and that he would come back and shoot her. Defendant left, returned with a gun, and started shooting. Tammy testified that defendant fired a shot at her while she was still on the porch. Her sister testified that defendant did not start shooting until she and Tammy had run inside, but also testified that defendant fired directly at them as they were running past the window. Tammy testified that she felt a bullet passing by her head.
People v. Keith, No. 278573, 2008 WL 2938787, *1 (Mich. Ct. App. July 31, 2008). Following a bench trial in Wayne County Circuit Court, Petitioner was convicted and sentenced as follows: assault with intent to commit murder (16 to 25 years), four counts of felonious assault (1 to 4 years for each conviction), and felony firearm (2 years). He filed an appeal of right in the Michigan Court of Appeals. The Michigan Court of Appeals affirmed his convictions. People v. Keith, No. 278573, 2008 WL 2938787 (Mich. Ct. App. July 31, 2008). Petitioner filed an application for leave to appeal in the Michigan Supreme Court. On November 25, 2008, the Michigan Supreme Court denied leave to appeal. People v. Keith, No. 137302, 482 Mich. 1701 (Mich. Nov. 25, 2008).
On June 7, 2010, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion. 7/20/10 Order Denying Motion for Relief From Judgment, People v. Keith, No. 07-003986. The trial court denied a motion for reconsideration on August 17, 2010. Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Keith, No. 302918 (Mich. Ct. App. June 20, 2011). The Michigan Supreme Court also denied Petitioner’s application for leave to appeal. People v. Keith, 490 Mich. 969 (Mich. Dec. 28, 2011).
On July 9, 2012, Petitioner filed a second motion for relief from judgment in the trial court. The trial court denied the motion on September 26, 2012, and denied a subsequent motion for reconsideration on October 23, 2012. See 9/26/12 Opinion & Order Denying Defendant’s Second Motion for Relief from Judgment; 10/23/12 Order Denying Motion for Reconsideration, People v. Keith, No. 07-003986. On August 29, 2013, the Michigan Court of Appeals dismissed Petitioner’s application for leave to appeal for lack of jurisdiction because, under Mich. Ct. R. 6.502(G)(1), a defendant may not appeal the denial of a successive motion for relief from judgment. People v. Keith, No. 314129 (Mich. Ct. App. Aug. 29, 2013).
Petitioner filed a third motion for relief from judgment on October 1, 2013. The trial court denied the motion on December 17, 2013. See 12/17/13 Opinion and Order Denying Defendant’s Third Successive Motion for Relief from Judgment, People v. Keith, No. 07-003986. The Michigan Court of Appeals then dismissed Petitioner’s application for leave to appeal for lack of jurisdiction under Mich. Ct. R. 6.502(G)(1). People v. Keith, 322582 (Mich. Ct. App. Aug. 11, 2014). Petitioner filed an application for leave to appeal in the Michigan Supreme Court. That application remains pending.
Petitioner filed this habeas corpus petition on August 27, 2014.
Respondent argues that the petition is barred by the one-year statute of limitations. A prisoner must file a federal habeas corpus petition within one year of the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . or 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)(A) & (D). The one-year limitation period begins at the deadline for filing a petition for a writ of certiorari to the United States Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). In addition, the time during which a prisoner seeks state-court collateral review of a conviction does not count toward the limitation period. 28 U.S.C. § 2244(d)(2); Ege v. Yukins, 485 F.3d 364, ...