United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER 1) DENYING PETITIONER'S MOTION FOR RELEASE PENDING DECISION [Dkt. 2], 2) GRANTING PETITIONER'S MOTION TO CORRECT PETITION [Dkt. 3], 3) GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT [Dkt. 10], 4) DISMISSING AMENDED PETITION FOR WRIT OF HABEAS CORPUS, AND 5) DENYING CERTIFICATE OF APPEALABILITY
NANCY G. EDMUNDS, District Judge.
Orlando Flowers, ("Petitioner"), a Michigan Department of Corrections prisoner, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges his Wayne Circuit Court convictions for one count of first-degree felony murder, MICH. COMP. LAWS § 750.316(1)(b), two counts of armed robbery, MICH. COMP. LAWS § 750.529, two counts of assault with intent to do great bodily harm less than murder, MICH. COMP. LAWS § 750.84, and one count of possession of a firearm during the commission of a felony. MICH. COMP. LAWS § 750.227b. Petitioner was sentenced to mandatory life imprisonment for the murder conviction and lesser terms for his other convictions. The amended petition raises a single substantive claim: Petitioner was denied the effective assistance of counsel when his trial attorney misinformed him regarding whether a suppressed statement he made to police could be used against him on cross examination.
This matter is before the Court on Respondent's motion for summary judgment, in which he asks the Court to dismiss the petition as untimely. Petitioner filed a response to the motion, asserting that the petition was timely filed. The Court agrees with Respondent and the case will be dismissed.
Petitioner was found guilty of the above offenses after a jury trial on November 30, 1998. Petitioner filed a direct appeal in the Michigan Court of Appeals, raising claims not pertinent to this action. On February 27, 2001, the Michigan Court of Appeals affirmed Petitioner's convictions. People v. Flowers, No. 218593, 2001 WL 721328. (Mich. Ct. App. Feb. 27, 2001). The Michigan Supreme Court subsequently denied Petitioner's application for leave to appeal on September 25, 2001. People v. Flowers, 635 N.W.2d 316 (Mich. 2001) (table).
A little less than a year later, on September 20, 2002, Petitioner filed a motion for relief from judgment in the trial court, asserting the claim that now forms the basis for this action. The trial court granted the motion on March 2, 2007, ordered a new trial, and released Petitioner on a pretrial bond pending the new trial.
The prosecutor filed an application for leave to appeal in the Michigan Court of Appeals, challenging the trial court's decision. On November 18, 2008, the Michigan Court of Appeals issued an opinion reversing the trial court's decision and reinstating Petitioner's conviction. People v. Flowers, No. 279219, 2008 WL 4927326 (Mich. Ct. App. Nov. 18, 2008).
On January 12, 2009, Petitioner filed an application for leave to appeal in the Michigan Supreme Court. On August 6, 2009, the Michigan Supreme Court denied the application. People v. Flowers, 769 N.W.2d 656 (Mich. 2009) (table).
Bizarrely, Petitioner remained free on the pretrial bond granted by the trial court for approximately five more years, despite the fact that the order granting him a new trial had been reversed. Neither Petitioner nor the prosecutor took further action until August 13, 2014, when the prosecutor finally moved to have Petitioner returned to the custody. The motion was granted two days later and Petitioner was returned to prison to serve his sentence.
Petitioner filed the instant habeas petition on January 21, 2015, raising the same claim that he raised in his state post-conviction review proceeding.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the Court will construe all facts in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). There are no genuine issues of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id. If the movant carries its burden of showing an absence of evidence to support a claim, then the nonmovant must demonstrate by affidavits, depositions, answers to interrogatories and admissions that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). This standard of review may be applied to habeas proceedings. See Redmond v. Jackson, 295 F.Supp.2d 767, 770 (E.D. Mich. 2003).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a one-year period of limitation for a habeas petition filed by a state prisoner seeking habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1). The limitation runs from one of four specified dates, usually either the day when the judgment becomes final by the conclusion of direct review or the day when the time for seeking such review expires. 28 U.S.C. § 2244(d)(1)(A). The limitation period is tolled ...