United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING THE HABEAS CORPUS PETITION [ECF NO. 1], DECLINING TO GRANT A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
LINDA V. PARKER, District Judge.
State prisoner Anthony James Moench ("Petitioner") recently filed a pro se habeas corpus petition challenging his state convictions for first and second-degree criminal sexual conduct, Mich. Comp. Laws §§ 750.520b and 750.520c. He argues that he is entitled to be re-sentenced under correct sentencing guidelines, and that his trial attorney, the prosecution, and the trial court, violated his right to due process by not ensuring that the state sentencing guidelines were properly scored. Respondent O.C. Winn ("Respondent") urges the Court to dismiss the habeas petition on the grounds that the petition is untimely and that Petitioner's claims lack substantive merit. The Court agrees that habeas relief is not warranted, and accordingly, the petition will be DISMISSED.
I. Background and Procedural History
Petitioner was charged in Tuscola County, Michigan with twenty-four counts of criminal sexual conduct in the first degree, Mich. Comp. Laws § 750.520b(1)(b) (sexual penetration of a person who is at least thirteen years old, but less than sixteen years old), and twelve counts of criminal sexual conduct in the second degree, Mich. Comp. Laws § 750.520c(1)(b) (sexual contact with a person at least thirteen years old, but less than sixteen years old). The charges arose from allegations that Petitioner engaged in sexual conduct with his two underage stepdaughters.
On June 16, 2008, in Tuscola County Circuit Court, Petitioner pleaded guilty to two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. As a factual basis for his plea, Petitioner admitted that he touched his stepdaughter in a sexual manner when she was a member of his household and under the age of fifteen, and that, on two occasions, he had oral sex with her.
In exchange for Petitioner's plea, the prosecutor dismissed all the other counts against him and agreed to a sentence within the state sentencing guidelines instead of a twenty-five year minimum sentence that could have been imposed. On August 4, 2008, the state trial court sentenced Petitioner within the guidelines to two concurrent terms of 18 years, 9 months - 40 years in prison for the two counts of first-degree criminal sexual conduct; and 10-15 years in prison for the second-degree conviction. Petitioner did not pursue a direct appeal from his convictions, and the deadline for doing so expired one year after the judgment of sentence was entered on August 14, 2008.
On June 28, 2012, Petitioner raised his habeas claims in a motion for relief from judgment. The trial judge's successor denied the motion in a reasoned opinion, and, on September 25, 2013, the Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds presented. See People v. Moench, No. 315905 (Mich. Ct. App. Sept. 25, 2013). On February 28, 2014, the Michigan Supreme Court denied leave to appeal because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Moench, 495 Mich. 947; 843 N.W.2d 536 (2014) (table).
Finally, on May 1, 2014, Petitioner signed and dated his habeas corpus petition. Although the Clerk of the Court filed the petition on May 5, 2014, this Court deems the petition filed on May 1, 2014, when Petitioner dated his petition and presumably submitted it to prison officials for filing with the Court. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (explaining that, under the "relaxed filing standard" of the "prison mailbox rule, " "a pro se prisoner's complaint is deemed filed when it is handed over to prison officials for mailing to the court" and that, "absent contrary evidence, a prisoner does so on the date he or she signed the complaint").
In his petition, Petitioner argues that: (1) he is entitled to be re-sentenced under correct sentencing guidelines; and (2) defense counsel, the prosecution, and the trial court violated his due process right to have the sentencing guidelines correctly scored. Petitioner claims that if the sentencing guidelines had been correctly scored, the guidelines range for his minimum sentence would have been 42-70 months instead of 135-225 months. He maintains that defense counsel was ineffective for failing to object to the inaccurate guidelines score, that the prosecutor should have corrected the errors, and that the trial court abused its discretion by failing to recognize the errors. Respondent argues in an answer to the petition that these claims lack merit and also are barred from substantive review by the one-year statute of limitations.
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year period of limitation for state prisoners to file a federal habeas corpus petition. Wall v. Kholi, 131 S.Ct. 1278, 1283 (2011) (citing 28 U.S.C. § 2244(d)(1)). The period of limitation runs from the latest of the following four dates:
(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 ...