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Nelson v. Burt

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

June 8, 2015

WAYNE JEFFREY NELSON, Petitioner,
v.
SHERRY BURT, Respondent.

OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, (2) DISMISSING THE HABEAS CORPUS PETITION WITH PREJUDICE, (3) DENYING AS MOOT PETITIONER'S MOTIONS FOR DISCOVERY, EXPANSION OF THE RECORD, AND APPOINTMENT OF COUNSEL, AND (4) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

PATRICK J. DUGGAN, District Judge.

Petitioner Wayne Jeffrey Nelson ("Petitioner"), a Michigan Department of Corrections prisoner currently confined at the Muskegon Correctional Facility in Muskegon, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 2, 2014. In this petition, which is presently before the Court, Petitioner challenges his convictions for first-degree felony murder, Michigan Compiled Laws § 750.316, and armed robbery, Michigan Compiled Laws § 750.529, on sixteen different grounds. Also pending before this Court are several recently-filed motions seeking discovery, expansion of the record, and the appointment of counsel. Upon being ordered to respond to the petition, Respondent Sherry Burt ("Respondent") filed a motion for summary judgment seeking dismissal of the habeas application on the basis that Petitioner's claims are time-barred by the applicable statute of limitations.

Having thoroughly reviewed the claims asserted in the habeas petition, the accompanying briefs, and the Rule 5 materials, [1] the Court concludes that Petitioner is not entitled to the issuance of the writ due to his failure to comply with the one-year limitations period applicable to § 2254 petitions. The Court will therefore grant Respondent's motion, deny Petitioner's pending motions, and dismiss the habeas corpus petition with prejudice.

I. Background

Following a bench trial in 1983, Petitioner was found guilty of first-degree felony murder, in violation of Michigan Compiled Laws § 750.316(1)(b), and armed robbery, in violation of Michigan Compiled Laws § 750.529. On January 12, 1984, the trial court sentenced Petitioner to mandatory life imprisonment for the murder conviction and to a concurrent term of ten to twenty years in prison for the armed robbery.[2] In an appeal as of right, Petitioner alleged that there was insufficient evidence to support his murder conviction because there was no evidence of malice. The Michigan Court of Appeals disagreed and affirmed Petitioner's convictions in an unpublished, per curiam opinion. People v. Nelson, No. 77057 (Mich. Ct. App. June 12, 1985). Petitioner had fifty-six days (until August 7, 1985) to apply for leave to appeal in the Michigan Supreme Court. Mich. Ct. R. 7.302(C)(2). The Clerk of the Michigan Supreme Court, however, has certified that Petitioner did not appeal the June 12, 1985 decision of the Michigan Court of Appeals to the Michigan Supreme Court. (ECF No. 10-9.)

On June 22, 2000, Petitioner filed a motion for relief from judgment in the state trial court. The trial court denied the motion, but Petitioner did not appeal the denial to either the Michigan Court of Appeals or the Michigan Supreme Court.

On September 2, 2014, Petitioner filed his undated habeas corpus petition.[3] As grounds for relief, Petitioner asserts the following: (1) he is actually innocent; (2) he did not receive a fair and impartial trial; (3) the prosecutor withheld photographic evidence; (4) there was no probable cause for a search warrant; (5) Detective Bivens made a false report; (6-7) the State's primary witness, Sandra Borum, committed perjury at the preliminary examination and at trial; (8-9) Greg Slaughter and William Benson committed perjury at trial; (10) Officer Johnny White violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), when he failed to give Sandra Borum's witness statement to the defense; (11) Officer Isiah Smith violated Brady when he took statements but never turned them over the defense; (12) an unknown officer violated Brady by failing to give Leonell Phillips's witness statement to the defense; (13-14) Officers Isiah Smith and Robert Collinash violated Brady by failing to give photographs of the crime scene to the defense; (15) the Detroit police violated Brady by failing to give a report taken from William Benson to the defense; and (16) Officer Bivens violated Brady by (a) not recording or writing down witness statements, (b) not having witnesses sign in for line-ups, and (c) withholding the show-up sheets.

II. Analysis

Respondent Sherry Burt asserts in her motion for summary judgment that the habeas petition is barred by the statute of limitations and that Petitioner is not entitled to invoke any doctrine excusing his tardy filing. The Court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

A. The Statute of Limitations

Respondent's motion for summary judgment is based on the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs this case because Petitioner filed his habeas petition after AEDPA was enacted. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 2063-64 (1997); Muniz v. Smith, 647 F.3d 619, 622 (6th Cir. 2011).

AEDPA establishes a one-year period of limitation for state prisoners to file a federal habeas corpus petition. Wall v. Kholi, 562 U.S. 545, ___, 131 S.Ct. 1278, 1283 (2011) (citing 28 U.S.C. § 2244(d)(1)). The period of limitations ordinarily runs from the latest of four specified 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 ...

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