United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR AN EVIDENTIARY HEARING, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE APPEAL IN FORMA PAUPERIS
SEAN F. COX, District Judge.
Petitioner Ray Kalak, confined at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenged his conviction for first-degree and second-degree criminal sexual conduct. Respondent filed a motion for summary judgment, contending that the petition was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). Petitioner filed a reply to the motion. For the reasons stated below, the petition for a writ of habeas corpus is SUMMARILY DISMISSED WITH PREJUDICE. The Court will also deny petitioner's motion for an evidentiary hearing.
Petitioner was convicted following a jury trial in the Wayne County Circuit Court.
The Michigan Court of Appeals affirmed petitioner's conviction on March 4, 2008. People v. Kulak, No. 276995, 2008 WL 583441 (Mich.Ct.App. March 4, 2008). On March 20, 2008, the Michigan Court of Appeals issued an order amending the opinion to correct a clerical error related to an incorrectly labeled caption. Id. Petitioner did not file an application for leave to appeal with the Michigan Supreme Court.
On September 23, 2008, petitioner, with the assistance of counsel, filed a post-conviction motion for relief from judgment with the trial court. After the trial court denied the motion and the Michigan Court of Appeals denied leave to appeal, collateral review of petitioner's conviction ended in the state courts on July 26, 2010, when the Michigan Supreme Court denied petitioner leave to appeal from the denial of his post-conviction motion. People v. Kalak, 487 Mich. 851, 785 N.W.2d 147 (2010).
On May 26, 2011, petitioner an application for writ of habeas corpus with this Court. Petitioner also filed a motion to hold the petition in abeyance so that he could return to the state courts and file a second motion for relief from judgment based on newly discovered evidence. On August 11, 2011, the Court granted the motion to hold the petition in abeyance and stayed the proceedings. The Court conditioned the stay upon petitioner returning to the state courts and filing his post-conviction motion within sixty days of the Court's order and returning to this Court within sixty days of exhausting his state court remedies. Kalak v. McKee, No. 2:11-CV-12476, 2011 WL 3511500, at *3 (E.D. Mich. Aug. 11, 2011). The Court expessly indicated that: "If the conditions of the stay are not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed.'" Id. (internal citation omitted).
On October 12, 2011, petitioner filed his second motion for relief from judgment with the trial court. After the trial court and the Michigan Court of Appeals denied petitioner's request for post-conviction relief, the Michigan Supreme Court denied petitioner's post-conviction appeal on May 28, 2013. People v. Kalak, 494 Mich. 855, 830 N.W.2d 398 (2013).
On June 21, 2013, petitioner filed a motion for a new trial and a motion for a Ginther hearing with the trial court, which the trial court construed as a successive motion for relief from judgment and returned to petitioner on the ground that he had not met the requirements under M.C.R. 6.502(G) for filing a successive post-conviction motion. The Michigan appellate courts denied petitioner leave to appeal. People v. Kalak, No. 319464 (Mich.Ct.App. December 19, 2013); lv. Den. 496 Mich. 859, 847 N.W.2d 507 (2014).
On August 14, 2014, petitioner signed and dated a motion to lift the stay and an amended habeas petition. On September 11, 2014, the Court reopened the case to the Court's active docket, amended the caption, and granted petitioner's motion to amend the habeas petition.
The Court grants respondent's motion for summary judgment, because the petition for writ of habeas corpus was not filed within the one year statute of limitations.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000) (quoting Fed.R.Civ.P. 56(c)). To defeat a motion for summary judgment, the non-moving party must set forth specific facts sufficient to show that a reasonable factfinder could return a verdict in his favor. Id. The summary judgment rule applies to habeas proceedings. See Redmond v. Jackson, 295 F.Supp.2d 767, 770 (E.D. Mich. 2003).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one year statute of limitations shall apply to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. See Corbin v. Straub, 156 F.Supp.2d 833, 835 (E.D. Mich. 2001). The one year statute of limitation shall run 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 ...