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Shearrod v. Smith

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

July 7, 2015

JOHN SHEARROD, Petitioner,
v.
WILLIE SMITH, Respondent.

OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

NANCY G. EDMUNDS, District Judge.

John Shearrod, ("Petitioner"), confined at the Michigan Reformatory in Ionia, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for two counts of second-degree murder, M.C.L.A. 750.317; two counts of assault with intent to commit murder, M.C.L.A. 750.83; and two counts of armed robbery, M.C.L.A. 750.529. Respondent filed a motion for summary judgment, contending that petitioner has failed to comply with the statute of limitations contained in 28 U.S.C. § 2244(d)(1). For the reasons stated below, the petition for a writ of habeas corpus is SUMMARILY DENIED.

I. Background

Petitioner pleaded guilty to the above charges in the Detroit Recorder's Court, in exchange for dismissal of two first-degree murder charges.[1] Petitioner was sentenced on November 7, 1976 to life in prison on the second-degree murder convictions, twenty to forty years in prison on the assault with intent to commit murder convictions, and twenty five to fifty years in prison on the armed robbery convictions.

Petitioner's direct appeals with the Michigan courts ended on April 14, 1980, when the Michigan Supreme Court denied petitioner leave to appeal following the affirmance of his conviction by the Michigan Court of Appeals. People v. Shearrod, No. 64289 (Mich.S.Ct. April 14, 1980).

On October 5, 1982, petitioner filed a delayed motion for a new trial, which was denied by the trial court on October 11, 1982. The Michigan Court of Appeals denied petitioner leave to appeal on September 15, 1983. People v. Shearrod, No. 71058 (Mich.Ct.App. September 15, 1983). Petitioner did not appeal to the Michigan Supreme Court.[2]

In March of 1984, petitioner filed another motion for a new trial and a motion to withdraw his guilty plea, which was also denied. People v. Shearrod, No. 76-3450 (Detroit Recorder's Court, May 1, 1984). The Michigan Court of Appeals denied petitioner leave to appeal. People v. Shearrod, No. 79090 (Mich.Ct.App. October 1, 1984). Petitioner did not seek leave to appeal with the Michigan Supreme Court.[3]

In 1993, petitioner filed a post-conviction motion for relief from judgment, which was denied on April 13, 1993. See People v. Shearrod, No. 76-003450 (Wayne County Circuit Court, September 24, 2013).[4]

On November 15, 2012, petitioner filed a second motion for relief from judgment, which was denied. People v. Shearrod, No. 76-003450 (Wayne County Circuit Court, September 24, 2013). The Michigan Court of Appeals denied petitioner leave to appeal on January 16, 2014. People v. Shearrod, No. 319216 (Mich.Ct.App. January 16, 2014). The Michigan Supreme Court rejected petitioner's application for leave to appeal because it was not timely filed.[5]

Petitioner's habeas application was filed on October 20, 2014.[6]

II. Discussion

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 ...

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