United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS
NANCY G. EDMUNDS, District Judge.
This is a habeas case brought pursuant to 28 U.S.C. § 2254. On March 10, 2011, Petitioner was convicted in the Wayne Circuit Court of armed robbery, carjacking, and commission of a felony with a firearm. He was sentenced to two concurrent terms of 5-to-25 years imprisonment, plus a consecutive 2-year term for the firearm conviction. The petition alleges that 1) insufficient evidence was presented at trial to identify Petitioner as the perpetrator of the crime, 2) the trial court erroneously failed to suppress Petitioner's statement to police which was taken outside the presence of his guardian, and 3) Petitioner's statement to police was otherwise involuntary.
Petitioner admits that the petition was filed after expiration of the one-year statute of limitations applicable to habeas actions under 28 U.S.C. § 224(d). Petitioner asserts that he is entitled to equitably tolling because he did not receive a copy of the state court decision ending his direct appeal, and therefore he did not know that the statute of limitations began running. Because Petitioner waited two years to inquire about the status of his state court appeal, however, the Court finds that Petitioner has not demonstrated entitlement to equitable tolling, and it will summarily dismiss the petition. The Court will also deny Petitioner a certificate of appealability and deny permission to appeal in forma pauperis.
According to the allegations in the petition, and confirmed by the state court public records available online, Petitioner's state court appeal concluded on September 30, 2013, when the Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. Johnson, No. 146408, 843 N.W.2d 125 (Mich. Sup. Ct., Sept. 30, 2013). Petitioner does not allege that he filed a state post-conviction proceeding. Petitioner's undated and unsigned habeas petition was filed in this Court on March 26, 2015.
II. Standard of Review
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 case brought by a state prisoner is whether the 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 ...